By: Uresti S.B. No. 1752
(In the Senate - Filed March 8, 2013; March 25, 2013, read
first time and referred to Committee on Health and Human Services;
April 25, 2013, reported adversely, with favorable Committee
Substitute by the following vote: Yeas 7, Nays 0; April 25, 2013,
sent to printer.)
COMMITTEE SUBSTITUTE FOR S.B. No. 1752 By: Schwertner
A BILL TO BE ENTITLED
AN ACT
relating to declarations for mental health treatment.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 137, Civil Practice and Remedies Code,
is transferred to Chapter 576, Health and Safety Code, redesignated
as Subchapter C, Chapter 576, Health and Safety Code, and amended to
read as follows:
SUBCHAPTER C [CHAPTER 137]. DECLARATION FOR MENTAL HEALTH
TREATMENT
Sec. 576.051 [137.001]. DEFINITIONS. In this chapter:
(1) "Adult" means a person 18 years of age or older or
a person under 18 years of age who has had the disabilities of
minority removed.
(2) "Attending physician" means the physician,
selected by or assigned to a patient, who has primary
responsibility for the treatment and care of the patient.
(3) "Declaration for mental health treatment" means a
document making a declaration of preferences or instructions
regarding mental health treatment.
(4) "Emergency" means a situation in which it is
immediately necessary to treat a patient to prevent:
(A) probable imminent death or serious bodily
injury to the patient because the patient:
(i) overtly or continually is threatening
or attempting to commit suicide or serious bodily injury to the
patient; or
(ii) is behaving in a manner that indicates
that the patient is unable to satisfy the patient'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 of the patient.
(5) "Health care provider" means an individual or
facility licensed, certified, or otherwise authorized to
administer health care or treatment, for profit or otherwise, in
the ordinary course of business or professional practice and
includes a physician or other health care provider, a residential
care provider, or an inpatient mental health facility as defined by
Section 571.003[, Health and Safety Code].
(6) "Incapacitated" means that, in the opinion of the
court in a guardianship proceeding under Chapter XIII, Texas
Probate Code, or in a medication hearing under Section 574.106[,
Health and Safety Code], a person lacks the ability to understand
the nature and consequences of a proposed treatment, including the
benefits, risks, and alternatives to the proposed treatment, and
lacks the ability to make mental health treatment decisions because
of impairment.
(7) "Mental health treatment" means electroconvulsive
or other convulsive treatment, treatment of mental illness with
psychoactive medication as defined by Section 574.101[, Health and
Safety Code], or emergency mental health treatment.
(8) "Principal" means a person who has executed a
declaration for mental health treatment.
Sec. 576.052 [137.002]. PERSONS WHO MAY EXECUTE
DECLARATION FOR MENTAL HEALTH TREATMENT; PERIOD OF VALIDITY.
(a) An adult who is not incapacitated may execute a declaration
for mental health treatment. The preferences or instructions may
include consent to or refusal of mental health treatment.
(b) A declaration for mental health treatment is effective
on execution as provided by this chapter. Except as provided by
Subsection (c), a declaration for mental health treatment expires
on the third anniversary of the date of its execution or when
revoked by the principal, whichever is earlier.
(c) If the declaration for mental health treatment is in
effect and the principal is incapacitated on the third anniversary
of the date of its execution, the declaration remains in effect
until the principal is no longer incapacitated.
Sec. 576.053 [137.003]. EXECUTION AND WITNESSES. (a) A
declaration for mental health treatment must be signed by the
principal in the presence of two or more subscribing witnesses.
(b) A witness may not, at the time of execution, be:
(1) the principal's health or residential care
provider or an employee of that provider;
(2) the operator of a community health care facility
providing care to the principal or an employee of an operator of the
facility;
(3) a person related to the principal by blood,
marriage, or adoption;
(4) a person entitled to any part of the estate of the
principal on the death of the principal under a will, trust, or deed
in existence or who would be entitled to any part of the estate by
operation of law if the principal died intestate; or
(5) a person who has a claim against the estate of the
principal.
(c) For a witness's signature to be effective, the witness
must sign a statement affirming that, at the time the declaration
for mental health treatment was signed, the principal:
(1) appeared to be of sound mind to make a mental
health treatment decision;
(2) has stated in the witness's presence that the
principal was aware of the nature of the declaration for mental
health treatment and that the principal was signing the document
voluntarily and free from any duress; and
(3) requested that the witness serve as a witness to
the principal's execution of the document.
Sec. 576.054 [137.004]. HEALTH CARE PROVIDER TO ACT IN
ACCORDANCE WITH DECLARATION FOR MENTAL HEALTH TREATMENT. A
physician or other health care provider shall act in accordance
with the declaration for mental health treatment when the principal
has been found to be incapacitated. A physician or other provider
shall continue to seek and act in accordance with the principal's
informed consent to all mental health treatment decisions if the
principal is capable of providing informed consent.
Sec. 576.055 [137.005]. LIMITATION ON LIABILITY. (a) An
attending physician, health or residential care provider, or person
acting for or under an attending physician's or health or
residential care provider's control is not subject to criminal or
civil liability and has not engaged in professional misconduct for
an act or omission if the act or omission is done in good faith under
the terms of a declaration for mental health treatment.
(b) An attending physician, health or residential care
provider, or person acting for or under an attending physician's or
health or residential care provider's control does not engage in
professional misconduct for:
(1) failure to act in accordance with a declaration
for mental health treatment if the physician, provider, or other
person:
(A) was not provided with a copy of the
declaration; and
(B) had no knowledge of the declaration after a
good faith attempt to learn of the existence of a declaration; or
(2) acting in accordance with a directive for mental
health treatment after the directive has expired or has been
revoked if the physician, provider, or other person does not have
knowledge of the expiration or revocation.
Sec. 576.056 [137.006]. DISCRIMINATION RELATING TO
EXECUTION OF DECLARATION FOR MENTAL HEALTH TREATMENT. A health or
residential care provider, health care service plan, insurer
issuing disability insurance, self-insured employee benefit plan,
or nonprofit hospital service plan may not:
(1) charge a person a different rate solely because
the person has executed a declaration for mental health treatment;
(2) require a person to execute a declaration for
mental health treatment before:
(A) admitting the person to a hospital, nursing
home, or residential care home;
(B) insuring the person; or
(C) allowing the person to receive health or
residential care;
(3) refuse health or residential care to a person
solely because the person has executed a declaration for mental
health treatment; or
(4) discharge the person solely because the person has
or has not executed a declaration for mental health treatment.
Sec. 576.057 [137.007]. USE AND EFFECT OF DECLARATION FOR
MENTAL HEALTH TREATMENT. (a) On being presented with a
declaration for mental health treatment, a physician or other
health care provider shall make the declaration a part of the
principal's medical record. When acting in accordance with a
declaration for mental health treatment, a physician or other
health care provider shall comply with the declaration to the
fullest extent possible.
(b) If a physician or other provider is unwilling at any
time to comply with a declaration for mental health treatment, the
physician or provider may withdraw from providing treatment
consistent with the exercise of independent medical judgment and
must promptly:
(1) make a reasonable effort to transfer care for the
principal to a physician or provider who is willing to comply with
the declaration;
(2) notify the principal, or principal's guardian, if
appropriate, of the decision to withdraw; and
(3) record in the principal's medical record the
notification and, if applicable, the name of the physician or
provider to whom the principal is transferred.
Sec. 576.058 [137.008]. DISREGARD OF DECLARATION FOR
MENTAL HEALTH TREATMENT. (a) A physician or other health care
provider may subject the principal to mental health treatment in a
manner contrary to the principal's wishes as expressed in a
declaration for mental health treatment only:
(1) if the principal is under an order for temporary or
extended mental health services under Section 574.034 or 574.035[,
Health and Safety Code], and treatment is authorized in compliance
with Section 574.106[, Health and Safety Code]; or
(2) in case of an emergency when the principal's
instructions have not been effective in reducing the severity of
the behavior that has caused the emergency.
(b) A declaration for mental health treatment does not limit
any authority provided by Chapter 573 or 574[, Health and Safety
Code]:
(1) to take a person into custody; or
(2) to admit or retain a person in a mental health
treatment facility.
(c) This section does not apply to the use of
electroconvulsive treatment or other convulsive treatment.
Sec. 576.059 [137.009]. CONFLICTING OR CONTRARY
PROVISIONS. (a) Mental health treatment instructions contained
in a declaration executed in accordance with this chapter supersede
any contrary or conflicting instructions given by:
(1) a durable power of attorney under Subchapter D,
Chapter 166 [Chapter 135]; or
(2) a guardian appointed under Chapter XIII, Texas
Probate Code, after the execution of the declaration.
(b) Mental health treatment instructions contained in a
declaration executed in accordance with this chapter shall be
conclusive evidence of a declarant's preference in a medication
hearing under Section 574.106[, Health and Safety Code].
Sec. 576.060 [137.010]. REVOCATION. (a) A declaration
for mental health treatment is revoked when a principal who is not
incapacitated:
(1) notifies a licensed or certified health or
residential care provider of the revocation;
(2) acts in a manner that demonstrates a specific
intent to revoke the declaration; or
(3) executes a later declaration for mental health
treatment.
(b) A principal's health or residential care provider who is
informed of or provided with a revocation of a declaration for
mental health treatment immediately shall:
(1) record the revocation in the principal's medical
record; and
(2) give notice of the revocation to any other health
or residential care provider the provider knows to be responsible
for the principal's care.
Sec. 576.061 [137.011]. FORM OF DECLARATION FOR MENTAL
HEALTH TREATMENT. The declaration for mental health treatment must
be in substantially the following form:
DECLARATION FOR MENTAL HEALTH TREATMENT
I, __________________, being an adult of sound mind, wilfully
and voluntarily make this declaration for mental health treatment
to be followed if it is determined by a court that my ability to
understand the nature and consequences of a proposed treatment,
including the benefits, risks, and alternatives to the proposed
treatment, is impaired to such an extent that I lack the capacity to
make mental health treatment decisions. "Mental health treatment"
means electroconvulsive or other convulsive treatment, treatment
of mental illness with psychoactive medication, and preferences
regarding emergency mental health treatment.
(OPTIONAL PARAGRAPH) I understand that I may become
incapable of giving or withholding informed consent for mental
health treatment due to the symptoms of a diagnosed mental
disorder. These symptoms may include:
________________________________________________________________
PSYCHOACTIVE MEDICATIONS
If I become incapable of giving or withholding informed
consent for mental health treatment, my wishes regarding
psychoactive medications are as follows:
_____ I consent to the administration of the following
medications:
________________________________________________________________
_____ I do not consent to the administration of the following
medications:
________________________________________________________________
_____ I consent to the administration of a federal Food and
Drug Administration approved medication that was only approved and
in existence after my declaration and that is considered in the same
class of psychoactive medications as stated below:
________________________________________________________________
Conditions or limitations: ________________________________
CONVULSIVE TREATMENT
If I become incapable of giving or withholding informed
consent for mental health treatment, my wishes regarding convulsive
treatment are as follows:
_____ I consent to the administration of convulsive
treatment.
_____ I do not consent to the administration of convulsive
treatment.
Conditions or limitations: ________________________________
PREFERENCES FOR EMERGENCY TREATMENT
In an emergency, I prefer the following treatment FIRST
(circle one) Restraint/Seclusion/Medication.
In an emergency, I prefer the following treatment SECOND
(circle one) Restraint/Seclusion/Medication.
In an emergency, I prefer the following treatment THIRD
(circle one) Restraint/Seclusion/Medication.
______ I prefer a male/female to administer restraint,
seclusion, and/or medications.
Options for treatment prior to use of restraint, seclusion,
and/or medications:
________________________________________________________________
Conditions or limitations: ________________________________
ADDITIONAL PREFERENCES OR INSTRUCTIONS
________________________________________________________________
Conditions or limitations: ________________________________
Signature of Principal/Date: ______________________________
STATEMENT OF WITNESSES
I declare under penalty of perjury that the principal's name
has been represented to me by the principal, that the principal
signed or acknowledged this declaration in my presence, that I
believe the principal to be of sound mind, that the principal has
affirmed that the principal is aware of the nature of the document
and is signing it voluntarily and free from duress, that the
principal requested that I serve as witness to the principal's
execution of this document, and that I am not a provider of health
or residential care to the principal, an employee of a provider of
health or residential care to the principal, an operator of a
community health care facility providing care to the principal, or
an employee of an operator of a community health care facility
providing care to the principal.
I declare that I am not related to the principal by blood,
marriage, or adoption and that to the best of my knowledge I am not
entitled to and do not have a claim against any part of the estate of
the principal on the death of the principal under a will or by
operation of law.
Witness Signature: _________________________________________
Print Name: ________________________________________________
Date: ______________________
Address: ___________________________________________________
Witness Signature: _________________________________________
Print Name: ________________________________________________
Date: ______________________
Address: ___________________________________________________
NOTICE TO PERSON MAKING A DECLARATION FOR MENTAL HEALTH TREATMENT
This is an important legal document. It creates a
declaration for mental health treatment. Before signing this
document, you should know these important facts:
This document allows you to make decisions in advance about
mental health treatment and specifically three types of mental
health treatment: psychoactive medication, convulsive therapy,
and emergency mental health treatment. The instructions that you
include in this declaration will be followed only if a court
believes that you are incapacitated to make treatment decisions.
Otherwise, you will be considered able to give or withhold consent
for the treatments.
This document will continue in effect for a period of three
years unless you become incapacitated to participate in mental
health treatment decisions. If this occurs, the directive will
continue in effect until you are no longer incapacitated.
You have the right to revoke this document in whole or in part
at any time you have not been determined to be incapacitated. YOU
MAY NOT REVOKE THIS DECLARATION WHEN YOU ARE CONSIDERED BY A COURT
TO BE INCAPACITATED. A revocation is effective when it is
communicated to your attending physician or other health care
provider.
If there is anything in this document that you do not
understand, you should ask a lawyer to explain it to you. This
declaration is not valid unless it is signed by two qualified
witnesses who are personally known to you and who are present when
you sign or acknowledge your signature.
SECTION 2. (a) Subdivision (6), Section 576.051, Health
and Safety Code, as effective September 1, 2013, is amended to read
as follows:
(6) "Incapacitated" means that, in the opinion of the
court in a guardianship proceeding under Title 3, Estates [Chapter
XIII, Texas Probate] Code, or in a medication hearing under Section
574.106, a person lacks the ability to understand the nature and
consequences of a proposed treatment, including the benefits,
risks, and alternatives to the proposed treatment, and lacks the
ability to make mental health treatment decisions because of
impairment.
(b) This section takes effect January 1, 2014.
SECTION 3. (a) Subsection (a), Section 576.059, Health and
Safety Code, as effective September 1, 2013, is amended to read as
follows:
(a) Mental health treatment instructions contained in a
declaration executed in accordance with this chapter supersede any
contrary or conflicting instructions given by:
(1) a durable power of attorney under Subchapter D,
Chapter 166; or
(2) a guardian appointed under Title 3, Estates
[Chapter XIII, Texas Probate] Code, after the execution of the
declaration.
(b) This section takes effect January 1, 2014.
SECTION 4. Except as otherwise provided by this Act, this
Act takes effect September 1, 2013.
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