83R4669 AED-D
By: Hughes H.B. No. 3656
A BILL TO BE ENTITLED
AN ACT
relating to court authorization of elective surgery for certain
persons with disabilities.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subtitle E, Title 7, Health and Safety Code, is
amended by adding Chapter 618 to read as follows:
CHAPTER 618. ELECTIVE MEDICAL PROCEDURES FOR INCAPACITATED
INDIVIDUALS WITH DEVELOPMENTAL OR INTELLECTUAL DISABILITIES
Sec. 618.001. DEFINITIONS. In this chapter:
(1) "Elective medical procedure" means a medical
procedure that does not prevent or treat an illness or disease and
is solely based on the presence of a disability. The term includes
sterilization and growth attenuation.
(2) "Incapacitated individual with a disability"
means an individual who has a developmental or intellectual
disability and who is an incapacitated person because of age or
mental condition.
(3) "Incapacitated person" has the meaning assigned by
Section 601, Texas Probate Code.
Sec. 618.002. COURT ORDER AUTHORIZING ELECTIVE MEDICAL
PROCEDURE. (a) An elective medical procedure may not be performed
on an incapacitated individual with a disability unless a court
issues an order authorizing the procedure.
(b) There is a rebuttable presumption that the elective
medical procedure is not in the best interest of the incapacitated
individual with a disability.
(c) A court may issue an order authorizing the elective
medical procedure only if the court finds that:
(1) there are no medically preferable alternatives to
the procedure;
(2) the risks of the procedure and the long-term risks
to the individual are minimal;
(3) the individual will not likely suffer
psychological harm; and
(4) the procedure will promote the individual's best
interests.
Sec. 618.003. PETITION FOR COURT ORDER. The parent,
guardian, or managing conservator of an incapacitated individual
with a disability may petition a district court with probate
jurisdiction for an order authorizing an elective medical procedure
for the individual.
Sec. 618.004. COURT HEARING. (a) The court shall hold a
hearing on the petition filed under Section 618.003.
(b) A party to the proceeding is entitled on request to a
preferential setting for the hearing.
(c) The court shall appoint an attorney ad litem and a
guardian ad litem to represent the interests of the incapacitated
individual with a disability in the manner provided by Chapter 107,
Family Code, or Section 645, Texas Probate Code, as appropriate, or
may appoint an attorney to serve in the dual role.
(d) The hearing must be adversary in order to secure a
complete record, and the attorney ad litem shall advocate the best
interests of the incapacitated individual with a disability.
Sec. 618.005. ACCESS TO INCAPACITATED INDIVIDUAL WITH A
DISABILITY AND INFORMATION RELATING TO INDIVIDUAL. (a) In
conjunction with an appointment under this chapter, the court shall
issue an order authorizing the attorney ad litem and guardian ad
litem for the incapacitated individual with a disability, and any
amicus attorney, to have immediate access to the individual and any
information relating to the individual.
(b) If the attorney ad litem or guardian ad litem considers
it necessary, the court shall order the performance of a
determination under Section 593.005 to help the ad litem evaluate
the capacity of the incapacitated individual with a disability.
(c) Without requiring a further order or release, the
custodian of any relevant records relating to the incapacitated
individual with a disability, including records regarding social
services, law enforcement records, school records, and records of a
probate or court proceeding, shall provide access to a person
authorized to access the records under Subsection (a).
(d) Without requiring a further order or release, the
custodian of a medical, mental health, or drug or alcohol treatment
record of an incapacitated individual with a disability that is
privileged or confidential under other law shall release the record
to a person authorized to access the record under Subsection (a),
except that an individual's drug or alcohol treatment record that
is confidential under 42 U.S.C. Section 290dd-2 may be released
only as provided under applicable federal regulations.
(e) The disclosure of a confidential record under this
section does not affect the confidentiality of the record, and the
person provided access to the record may not disclose the record
further except as provided by court order or other law.
(f) Notwithstanding the provisions of this section, the
provisions of Section 159.008, Occupations Code, apply to
information obtained under this section.
(g) Records obtained under this section shall be destroyed
on termination of the appointment.
Sec. 618.006. SUBSTITUTED JUDGMENT OF ATTORNEY AD LITEM FOR
INCAPACITATED INDIVIDUAL WITH A DISABILITY. (a) An attorney ad
litem appointed to represent an incapacitated individual with a
disability may determine that the individual does not have the
capacity to meaningfully formulate the individual's objectives of
representation in the case.
(b) An attorney ad litem or an attorney appointed in the
dual role who determines that the individual does not have the
capacity to meaningfully formulate the individual's objectives of
representation may present to the court a position that the
attorney determines will serve the best interests of the
individual. An attorney ad litem who is not appointed in the dual
role shall consult with the guardian ad litem and, without being
bound by the guardian ad litem's opinion or recommendation, ensure
that the guardian ad litem's opinion and basis for any
recommendation regarding the best interests of the individual are
presented to the court.
Sec. 618.007. INTERVIEW AND EVALUATION ORDER BY COURT. (a)
If there is reason to believe that the incapacitated individual
with a disability may have the capacity to understand the nature and
consequences of the elective medical procedure, the court shall
interview the individual before the eighth day after the date of the
hearing to determine if the individual assents to the elective
medical procedure. The interview shall be conducted in chambers
and out of the presence of the parent, guardian, or managing
conservator of the individual.
(b) If the court considers it necessary, the court may order
the performance of a determination under Section 593.005 to help
the court evaluate the individual's capacity.
SECTION 2. This Act applies to an elective medical
procedure that is performed on or after the effective date of this
Act, regardless of the date on which it was originally scheduled.
SECTION 3. This Act takes effect September 1, 2013.