Texas 2013 - 83rd Regular

Texas House Bill HB1739 Compare Versions

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1	1	83R651 AJZ-D
2	2	By: Naishtat H.B. No. 1739
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the administration of psychoactive medications to
8	8	persons receiving services in certain facilities.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Section 592.038, Health and Safety Code, is
11	11	amended by adding Subsection (d) to read as follows:
12	12	(d) Each client has the right to refuse psychoactive
13	13	medication, as provided by Subchapter F.
14	14	SECTION 2. Section 592.054(b), Health and Safety Code, is
15	15	amended to read as follows:
16	16	(b) Notwithstanding Subsection (a), consent is required
17	17	for:
18	18	(1) all surgical procedures; and
19	19	(2) as provided by Section 592.153, the administration
20	20	of psychoactive medications.
21	21	SECTION 3. Chapter 592, Health and Safety Code, is amended
22	22	by adding Subchapter F to read as follows:
23	23	SUBCHAPTER F. ADMINISTRATION OF PSYCHOACTIVE MEDICATIONS
24	24	Sec. 592.151. DEFINITIONS. In this subchapter:
25	25	(1) "Capacity" means a client's ability to:
26	26	(A) understand the nature and consequences of a
27	27	proposed treatment, including the benefits, risks, and
28	28	alternatives to the proposed treatment; and
29	29	(B) make a decision whether to undergo the
30	30	proposed treatment.
31	31	(2) "Medication-related emergency" means a situation
32	32	in which it is immediately necessary to administer medication to a
33	33	client to prevent:
34	34	(A) imminent probable death or substantial
35	35	bodily harm to the client because the client:
36	36	(i) overtly or continually is threatening
37	37	or attempting to commit suicide or serious bodily harm; or
38	38	(ii) is behaving in a manner that indicates
39	39	that the client is unable to satisfy the client's need for
40	40	nourishment, essential medical care, or self-protection; or
41	41	(B) imminent physical or emotional harm to
42	42	another because of threats, attempts, or other acts the client
43	43	overtly or continually makes or commits.
44	44	(3) "Psychoactive medication" means a medication
45	45	prescribed for the treatment of symptoms of psychosis or other
46	46	severe mental or emotional disorders and that is used to exercise an
47	47	effect on the central nervous system to influence and modify
48	48	behavior, cognition, or affective state when treating the symptoms
49	49	of mental illness. "Psychoactive medication" includes the
50	50	following categories when used as described in this subdivision:
51	51	(A) antipsychotics or neuroleptics;
52	52	(B) antidepressants;
53	53	(C) agents for control of mania or depression;
54	54	(D) antianxiety agents;
55	55	(E) sedatives, hypnotics, or other
56	56	sleep-promoting drugs; and
57	57	(F) psychomotor stimulants.
58	58	Sec. 592.152. ADMINISTRATION OF PSYCHOACTIVE MEDICATION.
59	59	(a) A person may not administer a psychoactive medication to a
60	60	client receiving voluntary or involuntary residential care
61	61	services who refuses the administration unless:
62	62	(1) the client is having a medication-related
63	63	emergency;
64	64	(2) the refusing client's representative authorized by
65	65	law to consent on behalf of the client has consented to the
66	66	administration;
67	67	(3) the administration of the medication regardless of
68	68	the client's refusal is authorized by an order issued under Section
69	69	592.156; or
70	70	(4) the administration of the medication regardless of
71	71	the client's refusal is authorized by an order issued under Article
72	72	46B.086, Code of Criminal Procedure.
73	73	(b) Consent to the administration of psychoactive
74	74	medication given by a client or by a person authorized by law to
75	75	consent on behalf of the client is valid only if:
76	76	(1) the consent is given voluntarily and without
77	77	coercive or undue influence;
78	78	(2) the treating physician or a person designated by
79	79	the physician provides the following information, in a standard
80	80	format approved by the department, to the client and, if
81	81	applicable, to the client's representative authorized by law to
82	82	consent on behalf of the client:
83	83	(A) the specific condition to be treated;
84	84	(B) the beneficial effects on that condition
85	85	expected from the medication;
86	86	(C) the probable health care consequences of not
87	87	consenting to the medication;
88	88	(D) the probable clinically significant side
89	89	effects and risks associated with the medication;
90	90	(E) the generally accepted alternatives to the
91	91	medication, if any, and why the physician recommends that they be
92	92	rejected; and
93	93	(F) the proposed course of the medication;
94	94	(3) the client and, if appropriate, the client's
95	95	representative authorized by law to consent on behalf of the client
96	96	are informed in writing that consent may be revoked; and
97	97	(4) the consent is evidenced in the client's clinical
98	98	record by a signed form prescribed by the residential care facility
99	99	or by a statement of the treating physician or a person designated
100	100	by the physician that documents that consent was given by the
101	101	appropriate person and the circumstances under which the consent
102	102	was obtained.
103	103	(c) If the treating physician designates another person to
104	104	provide the information under Subsection (b), then, not later than
105	105	two working days after that person provides the information,
106	106	excluding weekends and legal holidays, the physician shall meet
107	107	with the client and, if appropriate, the client's representative
108	108	who provided the consent, to review the information and answer any
109	109	questions.
110	110	(d) A client's refusal or attempt to refuse to receive
111	111	psychoactive medication, whether given verbally or by other
112	112	indications or means, shall be documented in the client's clinical
113	113	record.
114	114	(e) In prescribing psychoactive medication, a treating
115	115	physician shall:
116	116	(1) prescribe, consistent with clinically appropriate
117	117	medical care, the medication that has the fewest side effects or the
118	118	least potential for adverse side effects, unless the class of
119	119	medication has been demonstrated or justified not to be effective
120	120	clinically; and
121	121	(2) administer the smallest therapeutically
122	122	acceptable dosages of medication for the client's condition.
123	123	(f) If a physician issues an order to administer
124	124	psychoactive medication to a client without the client's consent
125	125	because the client is having a medication-related emergency:
126	126	(1) the physician shall document in the client's
127	127	clinical record in specific medical or behavioral terms the
128	128	necessity of the order and that the physician has evaluated but
129	129	rejected other generally accepted, less intrusive forms of
130	130	treatment, if any; and
131	131	(2) treatment of the client with the psychoactive
132	132	medication shall be provided in the manner, consistent with
133	133	clinically appropriate medical care, least restrictive of the
134	134	client's personal liberty.
135	135	Sec. 592.153. ADMINISTRATION OF MEDICATION TO CLIENT
136	136	COMMITTED TO RESIDENTIAL CARE FACILITY. (a) In this section,
137	137	"ward" has the meaning assigned by Section 601, Texas Probate Code.
138	138	(b) A person may not administer a psychoactive medication to
139	139	a client who refuses to take the medication voluntarily unless:
140	140	(1) the client is having a medication-related
141	141	emergency;
142	142	(2) the client is under an order issued under Section
143	143	592.156 authorizing the administration of the medication
144	144	regardless of the client's refusal; or
145	145	(3) the client is a ward who is 18 years of age or older
146	146	and the guardian of the person of the ward consents to the
147	147	administration of psychoactive medication regardless of the ward's
148	148	expressed preferences regarding treatment with psychoactive
149	149	medication.
150	150	Sec. 592.154. PHYSICIAN'S APPLICATION FOR ORDER TO
151	151	AUTHORIZE PSYCHOACTIVE MEDICATION; DATE OF HEARING. (a) A
152	152	physician who is treating a client may file an application in a
153	153	probate court or a court with probate jurisdiction on behalf of the
154	154	state for an order to authorize the administration of a
155	155	psychoactive medication regardless of the client's refusal if:
156	156	(1) the physician believes that the client lacks the
157	157	capacity to make a decision regarding the administration of the
158	158	psychoactive medication;
159	159	(2) the physician determines that the medication is
160	160	the proper course of treatment for the client; and
161	161	(3) the client has been committed to a residential
162	162	care facility under Subchapter C, Chapter 593, or other law or an
163	163	application for commitment to a residential care facility under
164	164	Subchapter C, Chapter 593, has been filed for the client.
165	165	(b) An application filed under this section must state:
166	166	(1) that the physician believes that the client lacks
167	167	the capacity to make a decision regarding administration of the
168	168	psychoactive medication and the reasons for that belief;
169	169	(2) each medication the physician wants the court to
170	170	compel the client to take;
171	171	(3) whether an application for commitment to a
172	172	residential care facility under Subchapter C, Chapter 593, has been
173	173	filed;
174	174	(4) whether an order committing the client to a
175	175	residential care facility has been issued and, if so, under what
176	176	authority it was issued;
177	177	(5) the physician's diagnosis of the client; and
178	178	(6) the proposed method for administering the
179	179	medication and, if the method is not customary, an explanation
180	180	justifying the departure from the customary methods.
181	181	(c) An application filed under this section must be filed
182	182	separately from an application for commitment to a residential care
183	183	facility.
184	184	(d) The hearing on the application may be held on the same
185	185	date as a hearing on an application for commitment to a residential
186	186	care facility under Subchapter C, Chapter 593, but the hearing must
187	187	be held not later than 30 days after the filing of the application
188	188	for the order to authorize psychoactive medication. If the hearing
189	189	is not held on the same date as the application for commitment to a
190	190	residential care facility under Subchapter C, Chapter 593, and the
191	191	client is transferred to a residential care facility in another
192	192	county, the court may transfer the application for an order to
193	193	authorize psychoactive medication to the county where the client
194	194	has been transferred.
195	195	(e) Subject to the requirement in Subsection (d) that the
196	196	hearing shall be held not later than 30 days after the filing of the
197	197	application, the court may grant one continuance on a party's
198	198	motion and for good cause shown. The court may grant more than one
199	199	continuance only with the agreement of the parties.
200	200	Sec. 592.155. RIGHTS OF CLIENT. A client for whom an
201	201	application for an order to authorize the administration of a
202	202	psychoactive medication is filed is entitled:
203	203	(1) to be represented by a court-appointed attorney
204	204	who is knowledgeable about issues to be adjudicated at the hearing;
205	205	(2) to meet with that attorney as soon as is
206	206	practicable to prepare for the hearing and to discuss any of the
207	207	client's questions or concerns;
208	208	(3) to receive, immediately after the time of the
209	209	hearing is set, a copy of the application and written notice of the
210	210	time, place, and date of the hearing;
211	211	(4) to be informed, at the time personal notice of the
212	212	hearing is given, of the client's right to a hearing and right to
213	213	the assistance of an attorney to prepare for the hearing and to
214	214	answer any questions or concerns;
215	215	(5) to be present at the hearing;
216	216	(6) to request from the court an independent expert;
217	217	and
218	218	(7) to be notified orally, at the conclusion of the
219	219	hearing, of the court's determinations of the client's capacity and
220	220	best interest.
221	221	Sec. 592.156. HEARING AND ORDER AUTHORIZING PSYCHOACTIVE
222	222	MEDICATION. (a) The court may issue an order authorizing the
223	223	administration of one or more classes of psychoactive medication to
224	224	a client who:
225	225	(1) has been committed to a residential care facility;
226	226	or
227	227	(2) is in custody awaiting trial in a criminal
228	228	proceeding and was committed to a residential care facility in the
229	229	six months preceding a hearing under this section.
230	230	(b) The court may issue an order under this section only if
231	231	the court finds by clear and convincing evidence after the hearing:
232	232	(1) that the client lacks the capacity to make a
233	233	decision regarding the administration of the proposed medication
234	234	and that treatment with the proposed medication is in the best
235	235	interest of the client; or
236	236	(2) if the client was committed to a residential care
237	237	facility by a criminal court with jurisdiction over the client,
238	238	that treatment with the proposed medication is in the best interest
239	239	of the client, and either:
240	240	(A) the client presents a danger to the client or
241	241	others in the residential care facility in which the client is being
242	242	treated as a result of a mental disorder or mental defect as
243	243	determined under Section 592.157; or
244	244	(B) the client:
245	245	(i) has remained confined in a correctional
246	246	facility, as defined by Section 1.07, Penal Code, for a period
247	247	exceeding 72 hours while awaiting transfer for competency
248	248	restoration treatment; and
249	249	(ii) presents a danger to the client or
250	250	others in the correctional facility as a result of a mental disorder
251	251	or mental defect as determined under Section 592.157.
252	252	(c) In making the finding that treatment with the proposed
253	253	medication is in the best interest of the client, the court shall
254	254	consider:
255	255	(1) the client's expressed preferences regarding
256	256	treatment with psychoactive medication;
257	257	(2) the client's religious beliefs;
258	258	(3) the risks and benefits, from the perspective of
259	259	the client, of taking psychoactive medication;
260	260	(4) the consequences to the client if the psychoactive
261	261	medication is not administered;
262	262	(5) the prognosis for the client if the client is
263	263	treated with psychoactive medication;
264	264	(6) alternative, less intrusive treatments that are
265	265	likely to produce the same results as treatment with psychoactive
266	266	medication; and
267	267	(7) less intrusive treatments likely to secure the
268	268	client's consent to take the psychoactive medication.
269	269	(d) A hearing under this subchapter shall be conducted on
270	270	the record by the probate judge or judge with probate jurisdiction,
271	271	except as provided by Subsection (e).
272	272	(e) A judge may refer a hearing to a magistrate or
273	273	court-appointed associate judge who has training regarding
274	274	psychoactive medications. The magistrate or associate judge may
275	275	effectuate the notice, set hearing dates, and appoint attorneys as
276	276	required by this subchapter. A record is not required if the
277	277	hearing is held by a magistrate or court-appointed associate judge.
278	278	(f) A party is entitled to a hearing de novo by the judge if
279	279	an appeal of the magistrate's or associate judge's report is filed
280	280	with the court before the fourth day after the date the report is
281	281	issued. The hearing de novo shall be held not later than the 30th
282	282	day after the date the application for an order to authorize
283	283	psychoactive medication was filed.
284	284	(g) If a hearing or an appeal of an associate judge's or
285	285	magistrate's report is to be held in a county court in which the
286	286	judge is not a licensed attorney, the proposed client or the
287	287	proposed client's attorney may request that the proceeding be
288	288	transferred to a court with a judge who is licensed to practice law
289	289	in this state. The county judge shall transfer the case after
290	290	receiving the request, and the receiving court shall hear the case
291	291	as if it had been originally filed in that court.
292	292	(h) As soon as practicable after the conclusion of the
293	293	hearing, the client is entitled to have provided to the client and
294	294	the client's attorney written notification of the court's
295	295	determinations under this section. The notification shall include
296	296	a statement of the evidence on which the court relied and the
297	297	reasons for the court's determinations.
298	298	(i) An order entered under this section shall authorize the
299	299	administration to a client, regardless of the client's refusal, of
300	300	one or more classes of psychoactive medications specified in the
301	301	application and consistent with the client's diagnosis. The order
302	302	shall permit an increase or decrease in a medication's dosage,
303	303	restitution of medication authorized but discontinued during the
304	304	period the order is valid, or the substitution of a medication
305	305	within the same class.
306	306	(j) The classes of psychoactive medications in the order
307	307	must conform to classes determined by the department.
308	308	(k) An order issued under this section may be reauthorized
309	309	or modified on the petition of a party. The order remains in effect
310	310	pending action on a petition for reauthorization or modification.
311	311	For the purpose of this subsection, "modification" means a change
312	312	of a class of medication authorized in the order.
313	313	(l) For a client described by Subsection (b)(2)(B), an order
314	314	issued under this section:
315	315	(1) authorizes the initiation of any appropriate
316	316	mental health treatment for the patient awaiting transfer; and
317	317	(2) does not constitute authorization to retain the
318	318	client in a correctional facility for competency restoration
319	319	treatment.
320	320	Sec. 592.157. FINDING THAT CLIENT PRESENTS A DANGER. In
321	321	making a finding under Section 592.156(b)(2) that, as a result of a
322	322	mental disorder or mental defect, the client presents a danger to
323	323	the client or others in the residential care facility in which the
324	324	client is being treated or in the correctional facility, as
325	325	applicable, the court shall consider:
326	326	(1) an assessment of the client's present mental
327	327	condition; and
328	328	(2) whether the client has inflicted, attempted to
329	329	inflict, or made a serious threat of inflicting substantial
330	330	physical harm to the client's self or to another while in the
331	331	facility.
332	332	Sec. 592.158. APPEAL. (a) A client may appeal an order
333	333	under this subchapter in the manner provided by Section 593.056 for
334	334	an appeal of an order committing the client to a residential care
335	335	facility.
336	336	(b) An order authorizing the administration of medication
337	337	regardless of the refusal of the client is effective pending an
338	338	appeal of the order.
339	339	Sec. 592.159. EFFECT OF ORDER. (a) A person's consent to
340	340	take a psychoactive medication is not valid and may not be relied on
341	341	if the person is subject to an order issued under Section 592.156.
342	342	(b) The issuance of an order under Section 592.156 is not a
343	343	determination or adjudication of mental incompetency and does not
344	344	limit in any other respect that person's rights as a citizen or the
345	345	person's property rights or legal capacity.
346	346	Sec. 592.160. EXPIRATION OF ORDER. (a) Except as provided
347	347	by Subsection (b), an order issued under Section 592.156 expires on
348	348	the anniversary of the date the order was issued.
349	349	(b) An order issued under Section 592.156 for a client
350	350	awaiting trial in a criminal proceeding expires on the date the
351	351	defendant is acquitted, is convicted, or enters a plea of guilty or
352	352	the date on which charges in the case are dismissed. An order
353	353	continued under this subsection shall be reviewed by the issuing
354	354	court every six months.
355	355	SECTION 4. Articles 46B.086(a) and (b), Code of Criminal
356	356	Procedure, are amended to read as follows:
357	357	(a) This article applies only to a defendant:
358	358	(1) who is determined under this chapter to be
359	359	incompetent to stand trial;
360	360	(2) who either:
361	361	(A) remains confined in a correctional facility,
362	362	as defined by Section 1.07, Penal Code, for a period exceeding 72
363	363	hours while awaiting transfer to an inpatient mental health
364	364	facility, a residential care facility, or an outpatient treatment
365	365	program;
366	366	(B) is committed to an inpatient mental health
367	367	facility or a residential care facility for the purpose of
368	368	competency restoration;
369	369	(C) is confined in a correctional facility while
370	370	awaiting further criminal proceedings following competency
371	371	restoration treatment; or
372	372	(D) is subject to Article 46B.072, if the court
373	373	has made the determinations required by Subsection (a-1) of that
374	374	article;
375	375	(3) for whom a correctional facility that employs or
376	376	contracts with a licensed psychiatrist, an inpatient mental health
377	377	facility, a residential care facility, or an outpatient treatment
378	378	program provider has prepared a continuity of care plan that
379	379	requires the defendant to take psychoactive medications; and
380	380	(4) who, after a hearing held under Section 574.106 or
381	381	592.156, Health and Safety Code, if applicable, has been found to
382	382	not meet the criteria prescribed by Sections 574.106(a) and (a-1)
383	383	or 592.156(a) and (b), Health and Safety Code, for court-ordered
384	384	administration of psychoactive medications.
385	385	(b) If a defendant described by Subsection (a) refuses to
386	386	take psychoactive medications as required by the defendant's
387	387	continuity of care plan, the director of the correctional facility
388	388	or outpatient treatment program provider, as applicable, shall
389	389	notify the court in which the criminal proceedings are pending of
390	390	that fact not later than the end of the next business day following
391	391	the refusal. The court shall promptly notify the attorney
392	392	representing the state and the attorney representing the defendant
393	393	of the defendant's refusal. The attorney representing the state
394	394	may file a written motion to compel medication. The motion to
395	395	compel medication must be filed not later than the 15th day after
396	396	the date a judge issues an order stating that the defendant does not
397	397	meet the criteria for court-ordered administration of psychoactive
398	398	medications under Section 574.106 or 592.156, Health and Safety
399	399	Code, except that, for a defendant in an outpatient treatment
400	400	program, the motion may be filed at any time.
401	401	SECTION 5. This Act takes effect September 1, 2013.