Texas 2013 - 83rd Regular

Texas Senate Bill SB1752 Compare Versions

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1	1	By: Uresti S.B. No. 1752
2	2	(In the Senate - Filed March 8, 2013; March 25, 2013, read
3	3	first time and referred to Committee on Health and Human Services;
4	4	April 25, 2013, reported adversely, with favorable Committee
5	5	Substitute by the following vote: Yeas 7, Nays 0; April 25, 2013,
6	6	sent to printer.)
7	7	COMMITTEE SUBSTITUTE FOR S.B. No. 1752 By: Schwertner
8	8
9	9
10	10	A BILL TO BE ENTITLED
11	11	AN ACT
12	12	relating to declarations for mental health treatment.
13	13	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
14	14	SECTION 1. Chapter 137, Civil Practice and Remedies Code,
15	15	is transferred to Chapter 576, Health and Safety Code, redesignated
16	16	as Subchapter C, Chapter 576, Health and Safety Code, and amended to
17	17	read as follows:
18	18	SUBCHAPTER C [CHAPTER 137]. DECLARATION FOR MENTAL HEALTH
19	19	TREATMENT
20	20	Sec. 576.051 [137.001]. DEFINITIONS. In this chapter:
21	21	(1) "Adult" means a person 18 years of age or older or
22	22	a person under 18 years of age who has had the disabilities of
23	23	minority removed.
24	24	(2) "Attending physician" means the physician,
25	25	selected by or assigned to a patient, who has primary
26	26	responsibility for the treatment and care of the patient.
27	27	(3) "Declaration for mental health treatment" means a
28	28	document making a declaration of preferences or instructions
29	29	regarding mental health treatment.
30	30	(4) "Emergency" means a situation in which it is
31	31	immediately necessary to treat a patient to prevent:
32	32	(A) probable imminent death or serious bodily
33	33	injury to the patient because the patient:
34	34	(i) overtly or continually is threatening
35	35	or attempting to commit suicide or serious bodily injury to the
36	36	patient; or
37	37	(ii) is behaving in a manner that indicates
38	38	that the patient is unable to satisfy the patient's need for
39	39	nourishment, essential medical care, or self-protection; or
40	40	(B) imminent physical or emotional harm to
41	41	another because of threats, attempts, or other acts of the patient.
42	42	(5) "Health care provider" means an individual or
43	43	facility licensed, certified, or otherwise authorized to
44	44	administer health care or treatment, for profit or otherwise, in
45	45	the ordinary course of business or professional practice and
46	46	includes a physician or other health care provider, a residential
47	47	care provider, or an inpatient mental health facility as defined by
48	48	Section 571.003[, Health and Safety Code].
49	49	(6) "Incapacitated" means that, in the opinion of the
50	50	court in a guardianship proceeding under Chapter XIII, Texas
51	51	Probate Code, or in a medication hearing under Section 574.106[,
52	52	Health and Safety Code], a person lacks the ability to understand
53	53	the nature and consequences of a proposed treatment, including the
54	54	benefits, risks, and alternatives to the proposed treatment, and
55	55	lacks the ability to make mental health treatment decisions because
56	56	of impairment.
57	57	(7) "Mental health treatment" means electroconvulsive
58	58	or other convulsive treatment, treatment of mental illness with
59	59	psychoactive medication as defined by Section 574.101[, Health and
60	60	Safety Code], or emergency mental health treatment.
61	61	(8) "Principal" means a person who has executed a
62	62	declaration for mental health treatment.
63	63	Sec. 576.052 [137.002]. PERSONS WHO MAY EXECUTE
64	64	DECLARATION FOR MENTAL HEALTH TREATMENT; PERIOD OF VALIDITY.
65	65	(a) An adult who is not incapacitated may execute a declaration
66	66	for mental health treatment. The preferences or instructions may
67	67	include consent to or refusal of mental health treatment.
68	68	(b) A declaration for mental health treatment is effective
69	69	on execution as provided by this chapter. Except as provided by
70	70	Subsection (c), a declaration for mental health treatment expires
71	71	on the third anniversary of the date of its execution or when
72	72	revoked by the principal, whichever is earlier.
73	73	(c) If the declaration for mental health treatment is in
74	74	effect and the principal is incapacitated on the third anniversary
75	75	of the date of its execution, the declaration remains in effect
76	76	until the principal is no longer incapacitated.
77	77	Sec. 576.053 [137.003]. EXECUTION AND WITNESSES. (a) A
78	78	declaration for mental health treatment must be signed by the
79	79	principal in the presence of two or more subscribing witnesses.
80	80	(b) A witness may not, at the time of execution, be:
81	81	(1) the principal's health or residential care
82	82	provider or an employee of that provider;
83	83	(2) the operator of a community health care facility
84	84	providing care to the principal or an employee of an operator of the
85	85	facility;
86	86	(3) a person related to the principal by blood,
87	87	marriage, or adoption;
88	88	(4) a person entitled to any part of the estate of the
89	89	principal on the death of the principal under a will, trust, or deed
90	90	in existence or who would be entitled to any part of the estate by
91	91	operation of law if the principal died intestate; or
92	92	(5) a person who has a claim against the estate of the
93	93	principal.
94	94	(c) For a witness's signature to be effective, the witness
95	95	must sign a statement affirming that, at the time the declaration
96	96	for mental health treatment was signed, the principal:
97	97	(1) appeared to be of sound mind to make a mental
98	98	health treatment decision;
99	99	(2) has stated in the witness's presence that the
100	100	principal was aware of the nature of the declaration for mental
101	101	health treatment and that the principal was signing the document
102	102	voluntarily and free from any duress; and
103	103	(3) requested that the witness serve as a witness to
104	104	the principal's execution of the document.
105	105	Sec. 576.054 [137.004]. HEALTH CARE PROVIDER TO ACT IN
106	106	ACCORDANCE WITH DECLARATION FOR MENTAL HEALTH TREATMENT. A
107	107	physician or other health care provider shall act in accordance
108	108	with the declaration for mental health treatment when the principal
109	109	has been found to be incapacitated. A physician or other provider
110	110	shall continue to seek and act in accordance with the principal's
111	111	informed consent to all mental health treatment decisions if the
112	112	principal is capable of providing informed consent.
113	113	Sec. 576.055 [137.005]. LIMITATION ON LIABILITY. (a) An
114	114	attending physician, health or residential care provider, or person
115	115	acting for or under an attending physician's or health or
116	116	residential care provider's control is not subject to criminal or
117	117	civil liability and has not engaged in professional misconduct for
118	118	an act or omission if the act or omission is done in good faith under
119	119	the terms of a declaration for mental health treatment.
120	120	(b) An attending physician, health or residential care
121	121	provider, or person acting for or under an attending physician's or
122	122	health or residential care provider's control does not engage in
123	123	professional misconduct for:
124	124	(1) failure to act in accordance with a declaration
125	125	for mental health treatment if the physician, provider, or other
126	126	person:
127	127	(A) was not provided with a copy of the
128	128	declaration; and
129	129	(B) had no knowledge of the declaration after a
130	130	good faith attempt to learn of the existence of a declaration; or
131	131	(2) acting in accordance with a directive for mental
132	132	health treatment after the directive has expired or has been
133	133	revoked if the physician, provider, or other person does not have
134	134	knowledge of the expiration or revocation.
135	135	Sec. 576.056 [137.006]. DISCRIMINATION RELATING TO
136	136	EXECUTION OF DECLARATION FOR MENTAL HEALTH TREATMENT. A health or
137	137	residential care provider, health care service plan, insurer
138	138	issuing disability insurance, self-insured employee benefit plan,
139	139	or nonprofit hospital service plan may not:
140	140	(1) charge a person a different rate solely because
141	141	the person has executed a declaration for mental health treatment;
142	142	(2) require a person to execute a declaration for
143	143	mental health treatment before:
144	144	(A) admitting the person to a hospital, nursing
145	145	home, or residential care home;
146	146	(B) insuring the person; or
147	147	(C) allowing the person to receive health or
148	148	residential care;
149	149	(3) refuse health or residential care to a person
150	150	solely because the person has executed a declaration for mental
151	151	health treatment; or
152	152	(4) discharge the person solely because the person has
153	153	or has not executed a declaration for mental health treatment.
154	154	Sec. 576.057 [137.007]. USE AND EFFECT OF DECLARATION FOR
155	155	MENTAL HEALTH TREATMENT. (a) On being presented with a
156	156	declaration for mental health treatment, a physician or other
157	157	health care provider shall make the declaration a part of the
158	158	principal's medical record. When acting in accordance with a
159	159	declaration for mental health treatment, a physician or other
160	160	health care provider shall comply with the declaration to the
161	161	fullest extent possible.
162	162	(b) If a physician or other provider is unwilling at any
163	163	time to comply with a declaration for mental health treatment, the
164	164	physician or provider may withdraw from providing treatment
165	165	consistent with the exercise of independent medical judgment and
166	166	must promptly:
167	167	(1) make a reasonable effort to transfer care for the
168	168	principal to a physician or provider who is willing to comply with
169	169	the declaration;
170	170	(2) notify the principal, or principal's guardian, if
171	171	appropriate, of the decision to withdraw; and
172	172	(3) record in the principal's medical record the
173	173	notification and, if applicable, the name of the physician or
174	174	provider to whom the principal is transferred.
175	175	Sec. 576.058 [137.008]. DISREGARD OF DECLARATION FOR
176	176	MENTAL HEALTH TREATMENT. (a) A physician or other health care
177	177	provider may subject the principal to mental health treatment in a
178	178	manner contrary to the principal's wishes as expressed in a
179	179	declaration for mental health treatment only:
180	180	(1) if the principal is under an order for temporary or
181	181	extended mental health services under Section 574.034 or 574.035[,
182	182	Health and Safety Code], and treatment is authorized in compliance
183	183	with Section 574.106[, Health and Safety Code]; or
184	184	(2) in case of an emergency when the principal's
185	185	instructions have not been effective in reducing the severity of
186	186	the behavior that has caused the emergency.
187	187	(b) A declaration for mental health treatment does not limit
188	188	any authority provided by Chapter 573 or 574[, Health and Safety
189	189	Code]:
190	190	(1) to take a person into custody; or
191	191	(2) to admit or retain a person in a mental health
192	192	treatment facility.
193	193	(c) This section does not apply to the use of
194	194	electroconvulsive treatment or other convulsive treatment.
195	195	Sec. 576.059 [137.009]. CONFLICTING OR CONTRARY
196	196	PROVISIONS. (a) Mental health treatment instructions contained
197	197	in a declaration executed in accordance with this chapter supersede
198	198	any contrary or conflicting instructions given by:
199	199	(1) a durable power of attorney under Subchapter D,
200	200	Chapter 166 [Chapter 135]; or
201	201	(2) a guardian appointed under Chapter XIII, Texas
202	202	Probate Code, after the execution of the declaration.
203	203	(b) Mental health treatment instructions contained in a
204	204	declaration executed in accordance with this chapter shall be
205	205	conclusive evidence of a declarant's preference in a medication
206	206	hearing under Section 574.106[, Health and Safety Code].
207	207	Sec. 576.060 [137.010]. REVOCATION. (a) A declaration
208	208	for mental health treatment is revoked when a principal who is not
209	209	incapacitated:
210	210	(1) notifies a licensed or certified health or
211	211	residential care provider of the revocation;
212	212	(2) acts in a manner that demonstrates a specific
213	213	intent to revoke the declaration; or
214	214	(3) executes a later declaration for mental health
215	215	treatment.
216	216	(b) A principal's health or residential care provider who is
217	217	informed of or provided with a revocation of a declaration for
218	218	mental health treatment immediately shall:
219	219	(1) record the revocation in the principal's medical
220	220	record; and
221	221	(2) give notice of the revocation to any other health
222	222	or residential care provider the provider knows to be responsible
223	223	for the principal's care.
224	224	Sec. 576.061 [137.011]. FORM OF DECLARATION FOR MENTAL
225	225	HEALTH TREATMENT. The declaration for mental health treatment must
226	226	be in substantially the following form:
227	227	DECLARATION FOR MENTAL HEALTH TREATMENT
228	228	I, __________________, being an adult of sound mind, wilfully
229	229	and voluntarily make this declaration for mental health treatment
230	230	to be followed if it is determined by a court that my ability to
231	231	understand the nature and consequences of a proposed treatment,
232	232	including the benefits, risks, and alternatives to the proposed
233	233	treatment, is impaired to such an extent that I lack the capacity to
234	234	make mental health treatment decisions. "Mental health treatment"
235	235	means electroconvulsive or other convulsive treatment, treatment
236	236	of mental illness with psychoactive medication, and preferences
237	237	regarding emergency mental health treatment.
238	238	(OPTIONAL PARAGRAPH) I understand that I may become
239	239	incapable of giving or withholding informed consent for mental
240	240	health treatment due to the symptoms of a diagnosed mental
241	241	disorder. These symptoms may include:
242	242	________________________________________________________________
243	243	PSYCHOACTIVE MEDICATIONS
244	244	If I become incapable of giving or withholding informed
245	245	consent for mental health treatment, my wishes regarding
246	246	psychoactive medications are as follows:
247	247	_____ I consent to the administration of the following
248	248	medications:
249	249	________________________________________________________________
250	250	_____ I do not consent to the administration of the following
251	251	medications:
252	252	________________________________________________________________
253	253	_____ I consent to the administration of a federal Food and
254	254	Drug Administration approved medication that was only approved and
255	255	in existence after my declaration and that is considered in the same
256	256	class of psychoactive medications as stated below:
257	257	________________________________________________________________
258	258	Conditions or limitations: ________________________________
259	259	CONVULSIVE TREATMENT
260	260	If I become incapable of giving or withholding informed
261	261	consent for mental health treatment, my wishes regarding convulsive
262	262	treatment are as follows:
263	263	_____ I consent to the administration of convulsive
264	264	treatment.
265	265	_____ I do not consent to the administration of convulsive
266	266	treatment.
267	267	Conditions or limitations: ________________________________
268	268	PREFERENCES FOR EMERGENCY TREATMENT
269	269	In an emergency, I prefer the following treatment FIRST
270	270	(circle one) Restraint/Seclusion/Medication.
271	271	In an emergency, I prefer the following treatment SECOND
272	272	(circle one) Restraint/Seclusion/Medication.
273	273	In an emergency, I prefer the following treatment THIRD
274	274	(circle one) Restraint/Seclusion/Medication.
275	275	______ I prefer a male/female to administer restraint,
276	276	seclusion, and/or medications.
277	277	Options for treatment prior to use of restraint, seclusion,
278	278	and/or medications:
279	279	________________________________________________________________
280	280	Conditions or limitations: ________________________________
281	281	ADDITIONAL PREFERENCES OR INSTRUCTIONS
282	282	________________________________________________________________
283	283	Conditions or limitations: ________________________________
284	284	Signature of Principal/Date: ______________________________
285	285	STATEMENT OF WITNESSES
286	286	I declare under penalty of perjury that the principal's name
287	287	has been represented to me by the principal, that the principal
288	288	signed or acknowledged this declaration in my presence, that I
289	289	believe the principal to be of sound mind, that the principal has
290	290	affirmed that the principal is aware of the nature of the document
291	291	and is signing it voluntarily and free from duress, that the
292	292	principal requested that I serve as witness to the principal's
293	293	execution of this document, and that I am not a provider of health
294	294	or residential care to the principal, an employee of a provider of
295	295	health or residential care to the principal, an operator of a
296	296	community health care facility providing care to the principal, or
297	297	an employee of an operator of a community health care facility
298	298	providing care to the principal.
299	299	I declare that I am not related to the principal by blood,
300	300	marriage, or adoption and that to the best of my knowledge I am not
301	301	entitled to and do not have a claim against any part of the estate of
302	302	the principal on the death of the principal under a will or by
303	303	operation of law.
304	304	Witness Signature: _________________________________________
305	305	Print Name: ________________________________________________
306	306	Date: ______________________
307	307	Address: ___________________________________________________
308	308	Witness Signature: _________________________________________
309	309	Print Name: ________________________________________________
310	310	Date: ______________________
311	311	Address: ___________________________________________________
312	312	NOTICE TO PERSON MAKING A DECLARATION FOR MENTAL HEALTH TREATMENT
313	313	This is an important legal document. It creates a
314	314	declaration for mental health treatment. Before signing this
315	315	document, you should know these important facts:
316	316	This document allows you to make decisions in advance about
317	317	mental health treatment and specifically three types of mental
318	318	health treatment: psychoactive medication, convulsive therapy,
319	319	and emergency mental health treatment. The instructions that you
320	320	include in this declaration will be followed only if a court
321	321	believes that you are incapacitated to make treatment decisions.
322	322	Otherwise, you will be considered able to give or withhold consent
323	323	for the treatments.
324	324	This document will continue in effect for a period of three
325	325	years unless you become incapacitated to participate in mental
326	326	health treatment decisions. If this occurs, the directive will
327	327	continue in effect until you are no longer incapacitated.
328	328	You have the right to revoke this document in whole or in part
329	329	at any time you have not been determined to be incapacitated. YOU
330	330	MAY NOT REVOKE THIS DECLARATION WHEN YOU ARE CONSIDERED BY A COURT
331	331	TO BE INCAPACITATED. A revocation is effective when it is
332	332	communicated to your attending physician or other health care
333	333	provider.
334	334	If there is anything in this document that you do not
335	335	understand, you should ask a lawyer to explain it to you. This
336	336	declaration is not valid unless it is signed by two qualified
337	337	witnesses who are personally known to you and who are present when
338	338	you sign or acknowledge your signature.
339	339	SECTION 2. (a) Subdivision (6), Section 576.051, Health
340	340	and Safety Code, as effective September 1, 2013, is amended to read
341	341	as follows:
342	342	(6) "Incapacitated" means that, in the opinion of the
343	343	court in a guardianship proceeding under Title 3, Estates [Chapter
344	344	XIII, Texas Probate] Code, or in a medication hearing under Section
345	345	574.106, a person lacks the ability to understand the nature and
346	346	consequences of a proposed treatment, including the benefits,
347	347	risks, and alternatives to the proposed treatment, and lacks the
348	348	ability to make mental health treatment decisions because of
349	349	impairment.
350	350	(b) This section takes effect January 1, 2014.
351	351	SECTION 3. (a) Subsection (a), Section 576.059, Health and
352	352	Safety Code, as effective September 1, 2013, is amended to read as
353	353	follows:
354	354	(a) Mental health treatment instructions contained in a
355	355	declaration executed in accordance with this chapter supersede any
356	356	contrary or conflicting instructions given by:
357	357	(1) a durable power of attorney under Subchapter D,
358	358	Chapter 166; or
359	359	(2) a guardian appointed under Title 3, Estates
360	360	[Chapter XIII, Texas Probate] Code, after the execution of the
361	361	declaration.
362	362	(b) This section takes effect January 1, 2014.
363	363	SECTION 4. Except as otherwise provided by this Act, this
364	364	Act takes effect September 1, 2013.
365	365	* * * * *