82R1355 AJZ-D
By: Zaffirini S.B. No. 55
A BILL TO BE ENTITLED
AN ACT
relating to the administration of psychoactive medications to
persons receiving services in certain facilities.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 592.038, Health and Safety Code, is
amended by adding Subsection (d) to read as follows:
(d) Each client has the right to refuse psychoactive
medication, as provided by Subchapter E.
SECTION 2. Section 592.054(b), Health and Safety Code, is
amended to read as follows:
(b) Notwithstanding Subsection (a), consent is required
for:
(1) all surgical procedures; and
(2) as provided by Section 592.083, the administration
of psychoactive medications.
SECTION 3. Chapter 592, Health and Safety Code, is amended
by adding Subchapter E to read as follows:
SUBCHAPTER E. ADMINISTRATION OF PSYCHOACTIVE MEDICATIONS
Sec. 592.081. DEFINITIONS. In this subchapter:
(1) "Capacity" means a client's ability to:
(A) understand the nature and consequences of a
proposed treatment, including the benefits, risks, and
alternatives to the proposed treatment; and
(B) make a decision whether to undergo the
proposed treatment.
(2) "Medication-related emergency" means a situation
in which it is immediately necessary to administer medication to a
client to prevent:
(A) imminent probable death or substantial
bodily harm to the client because the client:
(i) overtly or continually is threatening
or attempting to commit suicide or serious bodily harm; or
(ii) is behaving in a manner that indicates
that the client is unable to satisfy the client's need for
nourishment, essential medical care, or self-protection; or
(B) imminent physical or emotional harm to
another because of threats, attempts, or other acts the client
overtly or continually makes or commits.
(3) "Psychoactive medication" means a medication
prescribed for the treatment of symptoms of psychosis or other
severe mental or emotional disorders and that is used to exercise an
effect on the central nervous system to influence and modify
behavior, cognition, or affective state when treating the symptoms
of mental illness. "Psychoactive medication" includes the
following categories when used as described in this subdivision:
(A) antipsychotics or neuroleptics;
(B) antidepressants;
(C) agents for control of mania or depression;
(D) antianxiety agents;
(E) sedatives, hypnotics, or other
sleep-promoting drugs; and
(F) psychomotor stimulants.
Sec. 592.082. ADMINISTRATION OF PSYCHOACTIVE MEDICATION.
(a) A person may not administer a psychoactive medication to a
client receiving voluntary or involuntary residential care
services who refuses the administration unless:
(1) the client is having a medication-related
emergency;
(2) the refusing client's representative authorized by
law to consent on behalf of the client has consented to the
administration;
(3) the administration of the medication regardless of
the client's refusal is authorized by an order issued under Section
592.086; or
(4) the administration of the medication regardless of
the client's refusal is authorized by an order issued under Article
46B.086, Code of Criminal Procedure.
(b) Consent to the administration of psychoactive
medication given by a client or by a person authorized by law to
consent on behalf of the client is valid only if:
(1) the consent is given voluntarily and without
coercive or undue influence;
(2) the treating physician or a person designated by
the physician provides the following information, in a standard
format approved by the department, to the client and, if
applicable, to the client's representative authorized by law to
consent on behalf of the client:
(A) the specific condition to be treated;
(B) the beneficial effects on that condition
expected from the medication;
(C) the probable health care consequences of not
consenting to the medication;
(D) the probable clinically significant side
effects and risks associated with the medication;
(E) the generally accepted alternatives to the
medication, if any, and why the physician recommends that they be
rejected; and
(F) the proposed course of the medication;
(3) the client and, if appropriate, the client's
representative authorized by law to consent on behalf of the client
are informed in writing that consent may be revoked; and
(4) the consent is evidenced in the client's clinical
record by a signed form prescribed by the residential care facility
or by a statement of the treating physician or a person designated
by the physician that documents that consent was given by the
appropriate person and the circumstances under which the consent
was obtained.
(c) If the treating physician designates another person to
provide the information under Subsection (b), then, not later than
two working days after that person provides the information,
excluding weekends and legal holidays, the physician shall meet
with the client and, if appropriate, the client's representative
who provided the consent, to review the information and answer any
questions.
(d) A client's refusal or attempt to refuse to receive
psychoactive medication, whether given verbally or by other
indications or means, shall be documented in the client's clinical
record.
(e) In prescribing psychoactive medication, a treating
physician shall:
(1) prescribe, consistent with clinically appropriate
medical care, the medication that has the fewest side effects or the
least potential for adverse side effects, unless the class of
medication has been demonstrated or justified not to be effective
clinically; and
(2) administer the smallest therapeutically
acceptable dosages of medication for the client's condition.
(f) If a physician issues an order to administer
psychoactive medication to a client without the client's consent
because the client is having a medication-related emergency:
(1) the physician shall document in the client's
clinical record in specific medical or behavioral terms the
necessity of the order and that the physician has evaluated but
rejected other generally accepted, less intrusive forms of
treatment, if any; and
(2) treatment of the client with the psychoactive
medication shall be provided in the manner, consistent with
clinically appropriate medical care, least restrictive of the
client's personal liberty.
Sec. 592.083. ADMINISTRATION OF MEDICATION TO CLIENT
COMMITTED TO RESIDENTIAL CARE FACILITY. (a) In this section,
"ward" has the meaning assigned by Section 601, Texas Probate Code.
(b) A person may not administer a psychoactive medication to
a client who refuses to take the medication voluntarily unless:
(1) the client is having a medication-related
emergency;
(2) the client is under an order issued under Section
592.086 authorizing the administration of the medication
regardless of the client's refusal; or
(3) the client is a ward who is 18 years of age or older
and the guardian of the person of the ward consents to the
administration of psychoactive medication regardless of the ward's
expressed preferences regarding treatment with psychoactive
medication.
Sec. 592.084. PHYSICIAN'S APPLICATION FOR ORDER TO
AUTHORIZE PSYCHOACTIVE MEDICATION; DATE OF HEARING. (a) A
physician who is treating a client may file an application in a
probate court or a court with probate jurisdiction on behalf of the
state for an order to authorize the administration of a
psychoactive medication regardless of the client's refusal if:
(1) the physician believes that the client lacks the
capacity to make a decision regarding the administration of the
psychoactive medication;
(2) the physician determines that the medication is
the proper course of treatment for the client; and
(3) the client has been committed to a residential
care facility under Subchapter C, Chapter 593, or other law or an
application for commitment to a residential care facility under
Subchapter C, Chapter 593, has been filed for the client.
(b) An application filed under this section must state:
(1) that the physician believes that the client lacks
the capacity to make a decision regarding administration of the
psychoactive medication and the reasons for that belief;
(2) each medication the physician wants the court to
compel the client to take;
(3) whether an application for commitment to a
residential care facility under Subchapter C, Chapter 593, has been
filed;
(4) whether an order committing the client to a
residential care facility has been issued and, if so, under what
authority it was issued;
(5) the physician's diagnosis of the client; and
(6) the proposed method for administering the
medication and, if the method is not customary, an explanation
justifying the departure from the customary methods.
(c) An application filed under this section must be filed
separately from an application for commitment to a residential care
facility.
(d) The hearing on the application may be held on the same
date as a hearing on an application for commitment to a residential
care facility under Subchapter C, Chapter 593, but the hearing must
be held not later than 30 days after the filing of the application
for the order to authorize psychoactive medication. If the hearing
is not held on the same date as the application for commitment to a
residential care facility under Subchapter C, Chapter 593, and the
client is transferred to a residential care facility in another
county, the court may transfer the application for an order to
authorize psychoactive medication to the county where the client
has been transferred.
(e) Subject to the requirement in Subsection (d) that the
hearing shall be held not later than 30 days after the filing of the
application, the court may grant one continuance on a party's
motion and for good cause shown. The court may grant more than one
continuance only with the agreement of the parties.
Sec. 592.085. RIGHTS OF CLIENT. A client for whom an
application for an order to authorize the administration of a
psychoactive medication is filed is entitled:
(1) to be represented by a court-appointed attorney
who is knowledgeable about issues to be adjudicated at the hearing;
(2) to meet with that attorney as soon as is
practicable to prepare for the hearing and to discuss any of the
client's questions or concerns;
(3) to receive, immediately after the time of the
hearing is set, a copy of the application and written notice of the
time, place, and date of the hearing;
(4) to be informed, at the time personal notice of the
hearing is given, of the client's right to a hearing and right to
the assistance of an attorney to prepare for the hearing and to
answer any questions or concerns;
(5) to be present at the hearing;
(6) to request from the court an independent expert;
and
(7) to be notified orally, at the conclusion of the
hearing, of the court's determinations of the client's capacity and
best interest.
Sec. 592.086. HEARING AND ORDER AUTHORIZING PSYCHOACTIVE
MEDICATION. (a) The court may issue an order authorizing the
administration of one or more classes of psychoactive medication to
a client who:
(1) has been committed to a residential care facility;
or
(2) is in custody awaiting trial in a criminal
proceeding and was committed to a residential care facility in the
six months preceding a hearing under this section.
(b) The court may issue an order under this section only if
the court finds by clear and convincing evidence after the hearing:
(1) that the client lacks the capacity to make a
decision regarding the administration of the proposed medication
and that treatment with the proposed medication is in the best
interest of the client; or
(2) if the client was committed to a residential care
facility by a criminal court with jurisdiction over the client,
that treatment with the proposed medication is in the best interest
of the client, and either:
(A) the client presents a danger to the client or
others in the residential care facility in which the client is being
treated as a result of a mental disorder or mental defect as
determined under Section 592.087; or
(B) the client:
(i) has remained confined in a correctional
facility, as defined by Section 1.07, Penal Code, for a period
exceeding 72 hours while awaiting transfer for competency
restoration treatment; and
(ii) presents a danger to the client or
others in the correctional facility as a result of a mental disorder
or mental defect as determined under Section 592.087.
(c) In making the finding that treatment with the proposed
medication is in the best interest of the client, the court shall
consider:
(1) the client's expressed preferences regarding
treatment with psychoactive medication;
(2) the client's religious beliefs;
(3) the risks and benefits, from the perspective of
the client, of taking psychoactive medication;
(4) the consequences to the client if the psychoactive
medication is not administered;
(5) the prognosis for the client if the client is
treated with psychoactive medication;
(6) alternative, less intrusive treatments that are
likely to produce the same results as treatment with psychoactive
medication; and
(7) less intrusive treatments likely to secure the
client's consent to take the psychoactive medication.
(d) A hearing under this subchapter shall be conducted on
the record by the probate judge or judge with probate jurisdiction,
except as provided by Subsection (e).
(e) A judge may refer a hearing to a magistrate or
court-appointed associate judge who has training regarding
psychoactive medications. The magistrate or associate judge may
effectuate the notice, set hearing dates, and appoint attorneys as
required by this subchapter. A record is not required if the
hearing is held by a magistrate or court-appointed associate judge.
(f) A party is entitled to a hearing de novo by the judge if
an appeal of the magistrate's or associate judge's report is filed
with the court before the fourth day after the date the report is
issued. The hearing de novo shall be held not later than the 30th
day after the date the application for an order to authorize
psychoactive medication was filed.
(g) If a hearing or an appeal of an associate judge's or
magistrate's report is to be held in a county court in which the
judge is not a licensed attorney, the proposed client or the
proposed client's attorney may request that the proceeding be
transferred to a court with a judge who is licensed to practice law
in this state. The county judge shall transfer the case after
receiving the request, and the receiving court shall hear the case
as if it had been originally filed in that court.
(h) As soon as practicable after the conclusion of the
hearing, the client is entitled to have provided to the client and
the client's attorney written notification of the court's
determinations under this section. The notification shall include
a statement of the evidence on which the court relied and the
reasons for the court's determinations.
(i) An order entered under this section shall authorize the
administration to a client, regardless of the client's refusal, of
one or more classes of psychoactive medications specified in the
application and consistent with the client's diagnosis. The order
shall permit an increase or decrease in a medication's dosage,
restitution of medication authorized but discontinued during the
period the order is valid, or the substitution of a medication
within the same class.
(j) The classes of psychoactive medications in the order
must conform to classes determined by the department.
(k) An order issued under this section may be reauthorized
or modified on the petition of a party. The order remains in effect
pending action on a petition for reauthorization or modification.
For the purpose of this subsection, "modification" means a change
of a class of medication authorized in the order.
(l) For a client described by Subsection (b)(2)(B), an order
issued under this section:
(1) authorizes the initiation of any appropriate
mental health treatment for the patient awaiting transfer; and
(2) does not constitute authorization to retain the
client in a correctional facility for competency restoration
treatment.
Sec. 592.087. FINDING THAT CLIENT PRESENTS A DANGER. In
making a finding under Section 592.086(b)(2) that, as a result of a
mental disorder or mental defect, the client presents a danger to
the client or others in the residential care facility in which the
client is being treated or in the correctional facility, as
applicable, the court shall consider:
(1) an assessment of the client's present mental
condition; and
(2) whether the client has inflicted, attempted to
inflict, or made a serious threat of inflicting substantial
physical harm to the client's self or to another while in the
facility.
Sec. 592.088. APPEAL. (a) A client may appeal an order
under this subchapter in the manner provided by Section 593.056 for
an appeal of an order committing the client to a residential care
facility.
(b) An order authorizing the administration of medication
regardless of the refusal of the client is effective pending an
appeal of the order.
Sec. 592.089. EFFECT OF ORDER. (a) A person's consent to
take a psychoactive medication is not valid and may not be relied on
if the person is subject to an order issued under Section 592.086.
(b) The issuance of an order under Section 592.086 is not a
determination or adjudication of mental incompetency and does not
limit in any other respect that person's rights as a citizen or the
person's property rights or legal capacity.
Sec. 592.090. EXPIRATION OF ORDER. (a) Except as provided
by Subsection (b), an order issued under Section 592.086 expires on
the anniversary of the date the order was issued.
(b) An order issued under Section 592.086 for a client
awaiting trial in a criminal proceeding expires on the date the
defendant is acquitted, is convicted, or enters a plea of guilty or
the date on which charges in the case are dismissed. An order
continued under this subsection shall be reviewed by the issuing
court every six months.
SECTION 4. Articles 46B.086(a) and (b), Code of Criminal
Procedure, are amended to read as follows:
(a) This article applies only to a defendant:
(1) who is determined under this chapter to be
incompetent to stand trial;
(2) who either:
(A) remains confined in a correctional facility,
as defined by Section 1.07, Penal Code, for a period exceeding 72
hours while awaiting transfer to an inpatient mental health
facility, a residential care facility, or an outpatient treatment
program;
(B) is committed to an inpatient mental health
facility or a residential care facility for the purpose of
competency restoration;
(C) is confined in a correctional facility while
awaiting further criminal proceedings following competency
restoration treatment; or
(D) is subject to Article 46B.072, if the court
has made the determinations required by Subsection (a) of that
article;
(3) for whom a correctional facility that employs or
contracts with a licensed psychiatrist, an inpatient mental health
facility, a residential care facility, or an outpatient treatment
program provider has prepared a continuity of care plan that
requires the defendant to take psychoactive medications; and
(4) who, after a hearing held under Section 574.106 or
592.086, Health and Safety Code, if applicable, has been found to
not meet the criteria prescribed by Sections 574.106(a) and (a-1)
or 592.086(a) and (b), Health and Safety Code, for court-ordered
administration of psychoactive medications.
(b) If a defendant described by Subsection (a) refuses to
take psychoactive medications as required by the defendant's
continuity of care plan, the director of the correctional facility
or outpatient treatment program provider, as applicable, shall
notify the court in which the criminal proceedings are pending of
that fact not later than the end of the next business day following
the refusal. The court shall promptly notify the attorney
representing the state and the attorney representing the defendant
of the defendant's refusal. The attorney representing the state
may file a written motion to compel medication. The motion to
compel medication must be filed not later than the 15th day after
the date a judge issues an order stating that the defendant does not
meet the criteria for court-ordered administration of psychoactive
medications under Section 574.106 or 592.086, Health and Safety
Code, except that, for a defendant in an outpatient treatment
program, the motion may be filed at any time.
SECTION 5. This Act takes effect September 1, 2011.