Texas 2013 - 83rd Regular

Texas Senate Bill SB34 Compare Versions

The same version is selected twice. Please select two different versions to compare.

Version 1 (Old)

Version 2 (New)

Old	New	Differences
1	1	By: Zaffirini S.B. No. 34
2	2	(In the Senate - Filed November 12, 2012; January 28, 2013,
3	3	read first time and referred to Committee on Health and Human
4	4	Services; April 11, 2013, reported favorably by the following
5	5	vote: Yeas 7, Nays 0; April 11, 2013, sent to printer.)
6	6
7	7
8	8	A BILL TO BE ENTITLED
9	9	AN ACT
10	10	relating to the administration of psychoactive medications to
11	11	persons receiving services in certain facilities.
12	12	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
13	13	SECTION 1. Section 592.038, Health and Safety Code, is
14	14	amended by adding Subsection (d) to read as follows:
15	15	(d) Each client has the right to refuse psychoactive
16	16	medication, as provided by Subchapter F.
17	17	SECTION 2. Subsection (b), Section 592.054, Health and
18	18	Safety Code, is amended to read as follows:
19	19	(b) Notwithstanding Subsection (a), consent is required
20	20	for:
21	21	(1) all surgical procedures; and
22	22	(2) as provided by Section 592.153, the administration
23	23	of psychoactive medications.
24	24	SECTION 3. Chapter 592, Health and Safety Code, is amended
25	25	by adding Subchapter F to read as follows:
26	26	SUBCHAPTER F. ADMINISTRATION OF PSYCHOACTIVE MEDICATIONS
27	27	Sec. 592.151. DEFINITIONS. In this subchapter:
28	28	(1) "Capacity" means a client's ability to:
29	29	(A) understand the nature and consequences of a
30	30	proposed treatment, including the benefits, risks, and
31	31	alternatives to the proposed treatment; and
32	32	(B) make a decision whether to undergo the
33	33	proposed treatment.
34	34	(2) "Medication-related emergency" means a situation
35	35	in which it is immediately necessary to administer medication to a
36	36	client to prevent:
37	37	(A) imminent probable death or substantial
38	38	bodily harm to the client because the client:
39	39	(i) overtly or continually is threatening
40	40	or attempting to commit suicide or serious bodily harm; or
41	41	(ii) is behaving in a manner that indicates
42	42	that the client is unable to satisfy the client's need for
43	43	nourishment, essential medical care, or self-protection; or
44	44	(B) imminent physical or emotional harm to
45	45	another because of threats, attempts, or other acts the client
46	46	overtly or continually makes or commits.
47	47	(3) "Psychoactive medication" means a medication
48	48	prescribed for the treatment of symptoms of psychosis or other
49	49	severe mental or emotional disorders and that is used to exercise an
50	50	effect on the central nervous system to influence and modify
51	51	behavior, cognition, or affective state when treating the symptoms
52	52	of mental illness. "Psychoactive medication" includes the
53	53	following categories when used as described in this subdivision:
54	54	(A) antipsychotics or neuroleptics;
55	55	(B) antidepressants;
56	56	(C) agents for control of mania or depression;
57	57	(D) antianxiety agents;
58	58	(E) sedatives, hypnotics, or other
59	59	sleep-promoting drugs; and
60	60	(F) psychomotor stimulants.
61	61	Sec. 592.152. ADMINISTRATION OF PSYCHOACTIVE MEDICATION.
62	62	(a) A person may not administer a psychoactive medication to a
63	63	client receiving voluntary or involuntary residential care
64	64	services who refuses the administration unless:
65	65	(1) the client is having a medication-related
66	66	emergency;
67	67	(2) the refusing client's representative authorized by
68	68	law to consent on behalf of the client has consented to the
69	69	administration;
70	70	(3) the administration of the medication regardless of
71	71	the client's refusal is authorized by an order issued under Section
72	72	592.156; or
73	73	(4) the administration of the medication regardless of
74	74	the client's refusal is authorized by an order issued under Article
75	75	46B.086, Code of Criminal Procedure.
76	76	(b) Consent to the administration of psychoactive
77	77	medication given by a client or by a person authorized by law to
78	78	consent on behalf of the client is valid only if:
79	79	(1) the consent is given voluntarily and without
80	80	coercive or undue influence;
81	81	(2) the treating physician or a person designated by
82	82	the physician provides the following information, in a standard
83	83	format approved by the department, to the client and, if
84	84	applicable, to the client's representative authorized by law to
85	85	consent on behalf of the client:
86	86	(A) the specific condition to be treated;
87	87	(B) the beneficial effects on that condition
88	88	expected from the medication;
89	89	(C) the probable health care consequences of not
90	90	consenting to the medication;
91	91	(D) the probable clinically significant side
92	92	effects and risks associated with the medication;
93	93	(E) the generally accepted alternatives to the
94	94	medication, if any, and why the physician recommends that they be
95	95	rejected; and
96	96	(F) the proposed course of the medication;
97	97	(3) the client and, if appropriate, the client's
98	98	representative authorized by law to consent on behalf of the client
99	99	are informed in writing that consent may be revoked; and
100	100	(4) the consent is evidenced in the client's clinical
101	101	record by a signed form prescribed by the residential care facility
102	102	or by a statement of the treating physician or a person designated
103	103	by the physician that documents that consent was given by the
104	104	appropriate person and the circumstances under which the consent
105	105	was obtained.
106	106	(c) If the treating physician designates another person to
107	107	provide the information under Subsection (b), then, not later than
108	108	two working days after that person provides the information,
109	109	excluding weekends and legal holidays, the physician shall meet
110	110	with the client and, if appropriate, the client's representative
111	111	who provided the consent, to review the information and answer any
112	112	questions.
113	113	(d) A client's refusal or attempt to refuse to receive
114	114	psychoactive medication, whether given verbally or by other
115	115	indications or means, shall be documented in the client's clinical
116	116	record.
117	117	(e) In prescribing psychoactive medication, a treating
118	118	physician shall:
119	119	(1) prescribe, consistent with clinically appropriate
120	120	medical care, the medication that has the fewest side effects or the
121	121	least potential for adverse side effects, unless the class of
122	122	medication has been demonstrated or justified not to be effective
123	123	clinically; and
124	124	(2) administer the smallest therapeutically
125	125	acceptable dosages of medication for the client's condition.
126	126	(f) If a physician issues an order to administer
127	127	psychoactive medication to a client without the client's consent
128	128	because the client is having a medication-related emergency:
129	129	(1) the physician shall document in the client's
130	130	clinical record in specific medical or behavioral terms the
131	131	necessity of the order and that the physician has evaluated but
132	132	rejected other generally accepted, less intrusive forms of
133	133	treatment, if any; and
134	134	(2) treatment of the client with the psychoactive
135	135	medication shall be provided in the manner, consistent with
136	136	clinically appropriate medical care, least restrictive of the
137	137	client's personal liberty.
138	138	Sec. 592.153. ADMINISTRATION OF MEDICATION TO CLIENT
139	139	COMMITTED TO RESIDENTIAL CARE FACILITY. (a) In this section,
140	140	"ward" has the meaning assigned by Section 601, Texas Probate Code.
141	141	(b) A person may not administer a psychoactive medication to
142	142	a client who refuses to take the medication voluntarily unless:
143	143	(1) the client is having a medication-related
144	144	emergency;
145	145	(2) the client is under an order issued under Section
146	146	592.156 authorizing the administration of the medication
147	147	regardless of the client's refusal; or
148	148	(3) the client is a ward who is 18 years of age or older
149	149	and the guardian of the person of the ward consents to the
150	150	administration of psychoactive medication regardless of the ward's
151	151	expressed preferences regarding treatment with psychoactive
152	152	medication.
153	153	Sec. 592.154. PHYSICIAN'S APPLICATION FOR ORDER TO
154	154	AUTHORIZE PSYCHOACTIVE MEDICATION; DATE OF HEARING. (a) A
155	155	physician who is treating a client may file an application in a
156	156	probate court or a court with probate jurisdiction on behalf of the
157	157	state for an order to authorize the administration of a
158	158	psychoactive medication regardless of the client's refusal if:
159	159	(1) the physician believes that the client lacks the
160	160	capacity to make a decision regarding the administration of the
161	161	psychoactive medication;
162	162	(2) the physician determines that the medication is
163	163	the proper course of treatment for the client; and
164	164	(3) the client has been committed to a residential
165	165	care facility under Subchapter C, Chapter 593, or other law or an
166	166	application for commitment to a residential care facility under
167	167	Subchapter C, Chapter 593, has been filed for the client.
168	168	(b) An application filed under this section must state:
169	169	(1) that the physician believes that the client lacks
170	170	the capacity to make a decision regarding administration of the
171	171	psychoactive medication and the reasons for that belief;
172	172	(2) each medication the physician wants the court to
173	173	compel the client to take;
174	174	(3) whether an application for commitment to a
175	175	residential care facility under Subchapter C, Chapter 593, has been
176	176	filed;
177	177	(4) whether an order committing the client to a
178	178	residential care facility has been issued and, if so, under what
179	179	authority it was issued;
180	180	(5) the physician's diagnosis of the client; and
181	181	(6) the proposed method for administering the
182	182	medication and, if the method is not customary, an explanation
183	183	justifying the departure from the customary methods.
184	184	(c) An application filed under this section must be filed
185	185	separately from an application for commitment to a residential care
186	186	facility.
187	187	(d) The hearing on the application may be held on the same
188	188	date as a hearing on an application for commitment to a residential
189	189	care facility under Subchapter C, Chapter 593, but the hearing must
190	190	be held not later than 30 days after the filing of the application
191	191	for the order to authorize psychoactive medication. If the hearing
192	192	is not held on the same date as the application for commitment to a
193	193	residential care facility under Subchapter C, Chapter 593, and the
194	194	client is transferred to a residential care facility in another
195	195	county, the court may transfer the application for an order to
196	196	authorize psychoactive medication to the county where the client
197	197	has been transferred.
198	198	(e) Subject to the requirement in Subsection (d) that the
199	199	hearing shall be held not later than 30 days after the filing of the
200	200	application, the court may grant one continuance on a party's
201	201	motion and for good cause shown. The court may grant more than one
202	202	continuance only with the agreement of the parties.
203	203	Sec. 592.155. RIGHTS OF CLIENT. A client for whom an
204	204	application for an order to authorize the administration of a
205	205	psychoactive medication is filed is entitled:
206	206	(1) to be represented by a court-appointed attorney
207	207	who is knowledgeable about issues to be adjudicated at the hearing;
208	208	(2) to meet with that attorney as soon as is
209	209	practicable to prepare for the hearing and to discuss any of the
210	210	client's questions or concerns;
211	211	(3) to receive, immediately after the time of the
212	212	hearing is set, a copy of the application and written notice of the
213	213	time, place, and date of the hearing;
214	214	(4) to be informed, at the time personal notice of the
215	215	hearing is given, of the client's right to a hearing and right to
216	216	the assistance of an attorney to prepare for the hearing and to
217	217	answer any questions or concerns;
218	218	(5) to be present at the hearing;
219	219	(6) to request from the court an independent expert;
220	220	and
221	221	(7) to be notified orally, at the conclusion of the
222	222	hearing, of the court's determinations of the client's capacity and
223	223	best interest.
224	224	Sec. 592.156. HEARING AND ORDER AUTHORIZING PSYCHOACTIVE
225	225	MEDICATION. (a) The court may issue an order authorizing the
226	226	administration of one or more classes of psychoactive medication to
227	227	a client who:
228	228	(1) has been committed to a residential care facility;
229	229	or
230	230	(2) is in custody awaiting trial in a criminal
231	231	proceeding and was committed to a residential care facility in the
232	232	six months preceding a hearing under this section.
233	233	(b) The court may issue an order under this section only if
234	234	the court finds by clear and convincing evidence after the hearing:
235	235	(1) that the client lacks the capacity to make a
236	236	decision regarding the administration of the proposed medication
237	237	and that treatment with the proposed medication is in the best
238	238	interest of the client; or
239	239	(2) if the client was committed to a residential care
240	240	facility by a criminal court with jurisdiction over the client,
241	241	that treatment with the proposed medication is in the best interest
242	242	of the client, and either:
243	243	(A) the client presents a danger to the client or
244	244	others in the residential care facility in which the client is being
245	245	treated as a result of a mental disorder or mental defect as
246	246	determined under Section 592.157; or
247	247	(B) the client:
248	248	(i) has remained confined in a correctional
249	249	facility, as defined by Section 1.07, Penal Code, for a period
250	250	exceeding 72 hours while awaiting transfer for competency
251	251	restoration treatment; and
252	252	(ii) presents a danger to the client or
253	253	others in the correctional facility as a result of a mental disorder
254	254	or mental defect as determined under Section 592.157.
255	255	(c) In making the finding that treatment with the proposed
256	256	medication is in the best interest of the client, the court shall
257	257	consider:
258	258	(1) the client's expressed preferences regarding
259	259	treatment with psychoactive medication;
260	260	(2) the client's religious beliefs;
261	261	(3) the risks and benefits, from the perspective of
262	262	the client, of taking psychoactive medication;
263	263	(4) the consequences to the client if the psychoactive
264	264	medication is not administered;
265	265	(5) the prognosis for the client if the client is
266	266	treated with psychoactive medication;
267	267	(6) alternative, less intrusive treatments that are
268	268	likely to produce the same results as treatment with psychoactive
269	269	medication; and
270	270	(7) less intrusive treatments likely to secure the
271	271	client's consent to take the psychoactive medication.
272	272	(d) A hearing under this subchapter shall be conducted on
273	273	the record by the probate judge or judge with probate jurisdiction,
274	274	except as provided by Subsection (e).
275	275	(e) A judge may refer a hearing to a magistrate or
276	276	court-appointed associate judge who has training regarding
277	277	psychoactive medications. The magistrate or associate judge may
278	278	effectuate the notice, set hearing dates, and appoint attorneys as
279	279	required by this subchapter. A record is not required if the
280	280	hearing is held by a magistrate or court-appointed associate judge.
281	281	(f) A party is entitled to a hearing de novo by the judge if
282	282	an appeal of the magistrate's or associate judge's report is filed
283	283	with the court before the fourth day after the date the report is
284	284	issued. The hearing de novo shall be held not later than the 30th
285	285	day after the date the application for an order to authorize
286	286	psychoactive medication was filed.
287	287	(g) If a hearing or an appeal of an associate judge's or
288	288	magistrate's report is to be held in a county court in which the
289	289	judge is not a licensed attorney, the proposed client or the
290	290	proposed client's attorney may request that the proceeding be
291	291	transferred to a court with a judge who is licensed to practice law
292	292	in this state. The county judge shall transfer the case after
293	293	receiving the request, and the receiving court shall hear the case
294	294	as if it had been originally filed in that court.
295	295	(h) As soon as practicable after the conclusion of the
296	296	hearing, the client is entitled to have provided to the client and
297	297	the client's attorney written notification of the court's
298	298	determinations under this section. The notification shall include
299	299	a statement of the evidence on which the court relied and the
300	300	reasons for the court's determinations.
301	301	(i) An order entered under this section shall authorize the
302	302	administration to a client, regardless of the client's refusal, of
303	303	one or more classes of psychoactive medications specified in the
304	304	application and consistent with the client's diagnosis. The order
305	305	shall permit an increase or decrease in a medication's dosage,
306	306	restitution of medication authorized but discontinued during the
307	307	period the order is valid, or the substitution of a medication
308	308	within the same class.
309	309	(j) The classes of psychoactive medications in the order
310	310	must conform to classes determined by the department.
311	311	(k) An order issued under this section may be reauthorized
312	312	or modified on the petition of a party. The order remains in effect
313	313	pending action on a petition for reauthorization or modification.
314	314	For the purpose of this subsection, "modification" means a change
315	315	of a class of medication authorized in the order.
316	316	(l) For a client described by Subsection (b)(2)(B), an order
317	317	issued under this section:
318	318	(1) authorizes the initiation of any appropriate
319	319	mental health treatment for the patient awaiting transfer; and
320	320	(2) does not constitute authorization to retain the
321	321	client in a correctional facility for competency restoration
322	322	treatment.
323	323	Sec. 592.157. FINDING THAT CLIENT PRESENTS A DANGER. In
324	324	making a finding under Section 592.156(b)(2) that, as a result of a
325	325	mental disorder or mental defect, the client presents a danger to
326	326	the client or others in the residential care facility in which the
327	327	client is being treated or in the correctional facility, as
328	328	applicable, the court shall consider:
329	329	(1) an assessment of the client's present mental
330	330	condition; and
331	331	(2) whether the client has inflicted, attempted to
332	332	inflict, or made a serious threat of inflicting substantial
333	333	physical harm to the client's self or to another while in the
334	334	facility.
335	335	Sec. 592.158. APPEAL. (a) A client may appeal an order
336	336	under this subchapter in the manner provided by Section 593.056 for
337	337	an appeal of an order committing the client to a residential care
338	338	facility.
339	339	(b) An order authorizing the administration of medication
340	340	regardless of the refusal of the client is effective pending an
341	341	appeal of the order.
342	342	Sec. 592.159. EFFECT OF ORDER. (a) A person's consent to
343	343	take a psychoactive medication is not valid and may not be relied on
344	344	if the person is subject to an order issued under Section 592.156.
345	345	(b) The issuance of an order under Section 592.156 is not a
346	346	determination or adjudication of mental incompetency and does not
347	347	limit in any other respect that person's rights as a citizen or the
348	348	person's property rights or legal capacity.
349	349	Sec. 592.160. EXPIRATION OF ORDER. (a) Except as provided
350	350	by Subsection (b), an order issued under Section 592.156 expires on
351	351	the anniversary of the date the order was issued.
352	352	(b) An order issued under Section 592.156 for a client
353	353	awaiting trial in a criminal proceeding expires on the date the
354	354	defendant is acquitted, is convicted, or enters a plea of guilty or
355	355	the date on which charges in the case are dismissed. An order
356	356	continued under this subsection shall be reviewed by the issuing
357	357	court every six months.
358	358	SECTION 4. Subsections (a) and (b), Article 46B.086, Code
359	359	of Criminal Procedure, are amended to read as follows:
360	360	(a) This article applies only to a defendant:
361	361	(1) who is determined under this chapter to be
362	362	incompetent to stand trial;
363	363	(2) who either:
364	364	(A) remains confined in a correctional facility,
365	365	as defined by Section 1.07, Penal Code, for a period exceeding 72
366	366	hours while awaiting transfer to an inpatient mental health
367	367	facility, a residential care facility, or an outpatient treatment
368	368	program;
369	369	(B) is committed to an inpatient mental health
370	370	facility or a residential care facility for the purpose of
371	371	competency restoration;
372	372	(C) is confined in a correctional facility while
373	373	awaiting further criminal proceedings following competency
374	374	restoration treatment; or
375	375	(D) is subject to Article 46B.072, if the court
376	376	has made the determinations required by Subsection (a-1) of that
377	377	article;
378	378	(3) for whom a correctional facility that employs or
379	379	contracts with a licensed psychiatrist, an inpatient mental health
380	380	facility, a residential care facility, or an outpatient treatment
381	381	program provider has prepared a continuity of care plan that
382	382	requires the defendant to take psychoactive medications; and
383	383	(4) who, after a hearing held under Section 574.106 or
384	384	592.156, Health and Safety Code, if applicable, has been found to
385	385	not meet the criteria prescribed by Sections 574.106(a) and (a-1)
386	386	or 592.156(a) and (b), Health and Safety Code, for court-ordered
387	387	administration of psychoactive medications.
388	388	(b) If a defendant described by Subsection (a) refuses to
389	389	take psychoactive medications as required by the defendant's
390	390	continuity of care plan, the director of the correctional facility
391	391	or outpatient treatment program provider, as applicable, shall
392	392	notify the court in which the criminal proceedings are pending of
393	393	that fact not later than the end of the next business day following
394	394	the refusal. The court shall promptly notify the attorney
395	395	representing the state and the attorney representing the defendant
396	396	of the defendant's refusal. The attorney representing the state
397	397	may file a written motion to compel medication. The motion to
398	398	compel medication must be filed not later than the 15th day after
399	399	the date a judge issues an order stating that the defendant does not
400	400	meet the criteria for court-ordered administration of psychoactive
401	401	medications under Section 574.106 or 592.156, Health and Safety
402	402	Code, except that, for a defendant in an outpatient treatment
403	403	program, the motion may be filed at any time.
404	404	SECTION 5. This Act takes effect September 1, 2013.
405	405	* * * * *