Bill not drafted by TLC or Senate E&E.
Line and page numbers may not match official copy.
By Coleman H.B. No. 2268
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to mental health treatment decisions made on behalf of an
1-3 incapacitated individual and authorizing a declaration for mental
1-4 health treatment.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Title 6, Civil Practice and Remedies Code, is
1-7 amended by adding Chapter 137 to read as follows:
1-8 CHAPTER 137. DECLARATION FOR MENTAL HEALTH TREATMENT
1-9 Sec. 137.001. DEFINITIONS. In this chapter:
1-10 (1) "Adult" means a person 18 years of age or older or
1-11 a person under 18 years of age who has had the disabilities of
1-12 minority removed.
1-13 (2) "Attending physician" means the physician,
1-14 selected by or assigned to a patient, who has primary
1-15 responsibility for the treatment and care of the patient.
1-16 (3) "Declaration for mental health treatment" means a
1-17 document making a declaration of preferences or instructions
1-18 regarding mental health treatment.
1-19 (4) "Health care provider" means an individual or
1-20 facility licensed, certified, or otherwise authorized to administer
1-21 health care or treatment, for profit or otherwise, in the ordinary
1-22 course of business or professional practice and includes a
1-23 physician or other health care provider, a residential care
1-24 provider, or an inpatient mental health facility as defined by
2-1 Section 571.003, Health and Safety Code.
2-2 (5) "Incapacitated" means that, in the opinion of the
2-3 court in a guardianship proceeding under Chapter XIII, Texas
2-4 Probate Code, or in a medication hearing under Section 574.106,
2-5 Health and Safety Code, a person lacks the ability to understand
2-6 the nature and consequences of a proposed treatment, including the
2-7 benefits, risks, and alternatives to the proposed treatment, and
2-8 lacks the ability to make mental health treatment decisions because
2-9 of impairment.
2-10 (6) "Mental health treatment" means electroconvulsive
2-11 or other convulsive treatment, treatment of mental illness with
2-12 psychoactive medication as defined by Section 574.101, Health and
2-13 Safety Code, or emergency mental health treatment.
2-14 (7) "Principal" means a person who has executed a
2-15 declaration for mental health treatment.
2-16 Sec. 137.002. PERSONS WHO MAY EXECUTE DECLARATION FOR MENTAL
2-17 HEALTH TREATMENT; PERIOD OF VALIDITY. (a) An adult who is not
2-18 incapacitated may execute a declaration for mental health
2-19 treatment. The preferences or instructions may include consent to
2-20 or refusal of mental health treatment.
2-21 (b) A declaration for mental health treatment is effective
2-22 on execution as provided by this chapter. Except as provided by
2-23 Subsection (c), a declaration for mental health treatment expires
2-24 on the third anniversary of the date of its execution or when
2-25 revoked by the principal, whichever is earlier.
2-26 (c) If the declaration for mental health treatment is in
2-27 effect and the principal is incapacitated on the third anniversary
2-28 of the date of its execution, the declaration remains in effect
2-29 until the principal is no longer incapacitated.
2-30 Sec. 137.003. EXECUTION AND WITNESSES. (a) A declaration
3-1 for mental health treatment must be signed by the principal in the
3-2 presence of two or more subscribing witnesses.
3-3 (b) A witness may not, at the time of execution, be:
3-4 (1) the principal's health or residential care
3-5 provider or an employee of that provider;
3-6 (2) the operator of a community health care facility
3-7 providing care to the principal or an employee of an operator of
3-8 the facility;
3-9 (3) a person related to the principal by blood,
3-10 marriage, or adoption;
3-11 (4) a person entitled to any part of the estate of the
3-12 principal on the death of the principal under a will, trust, or
3-13 deed in existence or who would be entitled to any part of the
3-14 estate by operation of law if the principal died intestate; or
3-15 (5) a person who has a claim against the estate of the
3-16 principal.
3-17 (c) For a witness's signature to be effective, the witness
3-18 must sign a statement affirming that, at the time the declaration
3-19 for mental health treatment was signed, the principal:
3-20 (1) appeared to be of sound mind to make a mental
3-21 health treatment decision;
3-22 (2) has stated in the witness's presence that the
3-23 principal was aware of the nature of the declaration for mental
3-24 health treatment and that the principal was signing the document
3-25 voluntarily and free from any duress; and
3-26 (3) requested that the witness serve as a witness to
3-27 the principal's execution of the document.
3-28 Sec. 137.004. HEALTH CARE PROVIDER TO ACT IN ACCORDANCE WITH
3-29 DECLARATION FOR MENTAL HEALTH TREATMENT. A physician or other
3-30 health care provider shall act in accordance with the declaration
4-1 for mental health treatment when the principal has been found to be
4-2 incapacitated. A physician or other provider shall continue to
4-3 seek and act in accordance with the principal's informed consent to
4-4 all mental health treatment decisions if the principal is capable
4-5 of providing informed consent.
4-6 Sec. 137.005. LIMITATION ON LIABILITY. (a) An attending
4-7 physician, health or residential care provider, or person acting
4-8 for or under an attending physician's or health or residential care
4-9 provider's control is not subject to criminal or civil liability
4-10 and has not engaged in professional misconduct for an act or
4-11 omission if the act or omission is done in good faith under the
4-12 terms of a declaration for mental health treatment.
4-13 (b) An attending physician, health or residential care
4-14 provider, or person acting for or under an attending physician's or
4-15 health or residential care provider's control does not engage in
4-16 professional misconduct for:
4-17 (1) failure to act in accordance with a declaration
4-18 for mental health treatment if the physician, provider, or other
4-19 person:
4-20 (A) was not provided with a copy of the
4-21 declaration; and
4-22 (B) had no knowledge of the declaration after a
4-23 good faith attempt to learn of the existence of a declaration; or
4-24 (2) acting in accordance with a directive for mental
4-25 health treatment after the directive has expired or has been
4-26 revoked if the physician, provider, or other person does not have
4-27 knowledge of the expiration or revocation.
4-28 Sec. 137.006. DISCRIMINATION RELATING TO EXECUTION OF
4-29 DECLARATION FOR MENTAL HEALTH TREATMENT. A health or residential
4-30 care provider, health care service plan, insurer issuing disability
5-1 insurance, self-insured employee benefit plan, or nonprofit
5-2 hospital service plan may not:
5-3 (1) charge a person a different rate solely because
5-4 the person has executed a declaration for mental health treatment;
5-5 (2) require a person to execute a declaration for
5-6 mental health treatment before:
5-7 (A) admitting the person to a hospital, nursing
5-8 home, or residential care home;
5-9 (B) insuring the person; or
5-10 (C) allowing the person to receive health or
5-11 residential care;
5-12 (3) refuse health or residential care to a person
5-13 solely because the person has executed a declaration for mental
5-14 health treatment; or
5-15 (4) discharge the person solely because the person has
5-16 or has not executed a declaration for mental health treatment.
5-17 Sec. 137.007. USE AND EFFECT OF DECLARATION FOR MENTAL
5-18 HEALTH TREATMENT. Upon being presented with a declaration for
5-19 mental health treatment, a physician or other health care provider
5-20 shall make the declaration a part of the principal's medical
5-21 record. When acting in accordance with a declaration for mental
5-22 health treatment, a physician or other health care provider shall
5-23 comply with the declaration to the fullest extent possible. If the
5-24 physician or other provider is unwilling at any time to comply with
5-25 the declaration, the physician or provider may withdraw from
5-26 providing treatment consistent with the exercise of independent
5-27 medical judgment and must promptly:
5-28 (1) notify the principal of that action; and
5-29 (2) document the notification in the principal's
5-30 medical record.
6-1 Sec. 137.008. DISREGARD OF DECLARATION FOR MENTAL HEALTH
6-2 TREATMENT. (a) A physician or other health care provider may
6-3 subject the principal to mental health treatment in a manner
6-4 contrary to the principal's wishes as expressed in a declaration
6-5 for mental health treatment only:
6-6 (1) if the principal is under an order for temporary
6-7 or extended mental health services under Section 574.034 or
6-8 574.035, Health and Safety Code, and treatment is authorized in
6-9 compliance with Section 574.106, Health and Safety Code; or
6-10 (2) in case of an emergency when the principal's
6-11 instructions have not been effective in avoiding the emergency.
6-12 (b) For purposes of Subsection (a), "emergency" means a
6-13 situation in which it is immediately necessary to treat a patient
6-14 to prevent:
6-15 (1) probable imminent death or serious bodily injury
6-16 to the patient because the patient:
6-17 (A) overtly or continually is threatening or
6-18 attempting to commit suicide or serious bodily injury to the
6-19 patient; or
6-20 (B) is behaving in a manner that indicates that
6-21 the patient is unable to satisfy the patient's need for
6-22 nourishment, essential medical care, or self-protection; or
6-23 (2) imminent physical or emotional harm to another
6-24 because of threats, attempts, or other acts of the patient.
6-25 (c) A declaration for mental health treatment does not limit
6-26 any authority provided by Chapter 573 or 574, Health and Safety
6-27 Code:
6-28 (1) to take a person into custody; or
6-29 (2) to admit, or retain, a person in a mental health
6-30 treatment facility.
7-1 (d) This section does not apply to the use of
7-2 electroconvulsive treatment or other convulsive treatment.
7-3 Sec. 137.009. CONFLICTING OR CONTRARY PROVISIONS. (a)
7-4 Mental health treatment instructions contained in a declaration
7-5 executed in accordance with this chapter supersede any contrary or
7-6 conflicting instructions given by:
7-7 (1) a durable power of attorney under Chapter 135; or
7-8 (2) a guardian appointed under Chapter XIII, Texas
7-9 Probate Code, after the execution of the declaration.
7-10 (b) mental health treatment instructions contained in a
7-11 declaration executed in accordance with this act shall be
7-12 conclusive evidence of a declarant's preference in a medication
7-13 hearing under Section 574.106 of the Texas Health and Safety Code.
7-14 Sec. 137.010. REVOCATION. (a) A declaration for mental
7-15 health treatment is revoked by:
7-16 (1) notification at any time by a principal, when
7-17 competent, to a licensed or certified health or residential care
7-18 provider;
7-19 (2) any act of the principal that demonstrates a
7-20 specific intent to revoke the declaration; or
7-21 (3) the principal executing a later declaration for
7-22 mental health treatment.
7-23 (b) A principal's health or residential care provider who is
7-24 informed of or provided with a revocation of a declaration for
7-25 mental health treatment immediately shall:
7-26 (1) record the revocation in the principal's medical
7-27 record; and
7-28 (2) give notice of the revocation to any other health
7-29 or residential care provider the provider knows to be responsible
7-30 for the principal's care.
8-1 Sec. 137.011. FORM OF DECLARATION FOR MENTAL HEALTH
8-2 TREATMENT. The declaration for mental health treatment must be in
8-3 substantially the following form:
8-4 DECLARATION FOR MENTAL HEALTH TREATMENT
8-5 I,________________, being an adult of sound mind, wilfully
8-6 and voluntarily make this declaration for mental health treatment
8-7 to be followed if it is determined by a court that my ability to
8-8 understand the nature and consequences of a proposed treatment,
8-9 including the benefits, risks, and alternatives to the proposed
8-10 treatment, is impaired to such an extent that I lack the capacity
8-11 to make mental health treatment decisions. "Mental health
8-12 treatment" means electroconvulsive or other convulsive treatment,
8-13 treatment of mental illness with psychoactive medication, and
8-14 preferences regarding emergency mental health treatment.
8-15 (OPTIONAL PARAGRAPH) I understand that I may become incapable
8-16 of giving or withholding informed consent for mental health
8-17 treatment due to the symptoms of a diagnosed mental disorder.
8-18 These symptoms may include:
8-19 ___________________________________________________________________
8-20 ___________________________________________________________________
8-21 PSYCHOACTIVE MEDICATIONS
8-22 If I become incapable of giving or withholding informed
8-23 consent for mental health treatment, my wishes regarding
8-24 psychoactive medications are as follows:
8-25 _____ I consent to the administration of the following
8-26 medications:
8-27 ___________________________________________________________________
8-28 _____ I do not consent to the administration of the following
8-29 medications:
8-30 ___________________________________________________________________
9-1 _____ I consent to the administration of a Federal Drug
9-2 Administration (FDA) approved medication that was only approved and
9-3 in existence after my declaration and that is considered in the
9-4 same class of psychoactive medications as stated below:
9-5 ___________________________________________________________________
9-6 ___________________________________________________________________
9-7 Conditions or limitations:___________________________________
9-8 ___________________________________________________________________
9-9 ___________________________________________________________________
9-10 CONVULSIVE TREATMENT
9-11 If I become incapable of giving or withholding informed
9-12 consent for mental health treatment, my wishes regarding convulsive
9-13 treatment are as follows:
9-14 _____ I consent to the administration of convulsive treatment.
9-15 _____ I do not consent to the administration of convulsive
9-16 treatment.
9-17 Conditions or limitations:___________________________________
9-18 ___________________________________________________________________
9-19 ___________________________________________________________________
9-20 PREFERENCES FOR EMERGENCY TREATMENT
9-21 _____ In an emergency, I prefer chemical restraint to physical
9-22 restraint.
9-23 _____ In an emergency, I prefer physical restraint to chemical
9-24 restraint.
9-25 _____ I prefer a male/female to administer physical/chemical
9-26 restraints.
9-27 Options for treatment prior to use of physical/chemical
9-28 restraint or seclusion:
9-29 ___________________________________________________________________
9-30 ___________________________________________________________________
10-1 Conditions or limitations:___________________________________
10-2 ___________________________________________________________________
10-3 ADDITIONAL PREFERENCES OR INSTRUCTIONS
10-4 ___________________________________________________________________
10-5 ___________________________________________________________________
10-6 ___________________________________________________________________
10-7 Conditions or limitations:___________________________________
10-8 ___________________________________________________________________
10-9 ___________________________________________________________________
10-10 Signature of Principal/Date: _____________________________________
10-11 STATEMENT OF WITNESSES
10-12 I declare under penalty of perjury that the principal's name
10-13 has been represented to me by the principal, that the principal
10-14 signed or acknowledged this declaration in my presence, that I
10-15 believe the principal to be of sound mind, that the principal has
10-16 affirmed that the principal is aware of the nature of the document
10-17 and is signing it voluntarily and free from duress, that the
10-18 principal requested that I serve as witness to the principal's
10-19 execution of this document, and that I am not a provider of health
10-20 or residential care to the principal, an employee of a provider of
10-21 health or residential care to the principal, an operator of a
10-22 community health care facility providing care to the principal, or
10-23 an employee of an operator of a community health care facility
10-24 providing care to the principal.
10-25 I declare that I am not related to the principal by blood,
10-26 marriage, or adoption and that to the best of my knowledge I am not
10-27 entitled to and do not have a claim against any part of the estate
10-28 of the principal on the death of the principal under a will or by
10-29 operation of law.
10-30 Witness Signature:_________________________________________________
11-1 Print Name:________________________________________________________
11-2 Date:______________________
11-3 Address:___________________________________________________________
11-4 Witness Signature:_________________________________________________
11-5 Print Name:________________________________________________________
11-6 Date:______________________
11-7 Address:___________________________________________________________
11-8 NOTICE TO PERSON MAKING A DECLARATION
11-9 FOR MENTAL HEALTH TREATMENT
11-10 This is an important legal document. It creates a
11-11 declaration for mental health treatment. Before signing this
11-12 document, you should know these important facts:
11-13 This document allows you to make decisions in advance about
11-14 mental health treatment and specifically three types of mental
11-15 health treatment: psychoactive medication, convulsive therapy, and
11-16 emergency mental health treatment. The instructions that you
11-17 include in this declaration will be followed only if a court
11-18 believes that you are incapacitated to make treatment decisions.
11-19 Otherwise, you will be considered able to give or withhold consent
11-20 for the treatments.
11-21 This document will continue in effect for a period of three
11-22 years unless you become incapacitated to participate in mental
11-23 health treatment decisions. If this occurs, the directive will
11-24 continue in effect until you are no longer incapacitated.
11-25 You have the right to revoke this document in whole or in
11-26 part at any time you have not been determined to be incapacitated.
11-27 YOU MAY NOT REVOKE THIS DECLARATION WHEN YOU ARE CONSIDERED BY A
11-28 COURT TO BE INCAPACITATED. A revocation is effective when it is
11-29 communicated to your attending physician or other health care
11-30 provider.
12-1 If there is anything in this document that you do not
12-2 understand, you should ask a lawyer to explain it to you. This
12-3 declaration is not valid unless it is signed by two qualified
12-4 witnesses who are personally known to you and who are present when
12-5 you sign or acknowledge your signature.
12-6 SECTION 2. The importance of this legislation and the
12-7 crowded condition of the calendars in both houses create an
12-8 emergency and an imperative public necessity that the
12-9 constitutional rule requiring bills to be read on three several
12-10 days in each house be suspended, and this rule is hereby suspended,
12-11 and that this Act take effect and be in force from and after its
12-12 passage, and it is so enacted.