By: Moncrief S.B. No. 85
97S0018/1 10/17/96
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to surrogate decision making.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Subsections (c) and (f), Section 597.043, Health
1-5 and Safety Code, are amended to read as follows:
1-6 (c) The list of qualified individuals from which committee
1-7 members are drawn shall include:
1-8 (1) health care professionals licensed or registered
1-9 in this state who have specialized training in medicine,
1-10 psychopharmacology, nursing, or psychology;
1-11 (2) persons with mental retardation or parents,
1-12 siblings, spouses, or children of a person with mental retardation;
1-13 (3) attorneys licensed in this state who have
1-14 knowledge of legal issues of concern to persons with mental
1-15 retardation or to the families of persons with mental retardation;
1-16 (4) members of private organizations that advocate on
1-17 behalf of persons with mental retardation; and
1-18 (5) persons with demonstrated expertise or interest in
1-19 the care and treatment of persons with mental disabilities.
1-20 (f) The department [Each committee] shall designate a
1-21 committee chair.
1-22 SECTION 2. Subsection (b), Section 597.044, Health and
1-23 Safety Code, is amended to read as follows:
2-1 (b) An application must be in the form prescribed by the
2-2 department, must be signed by the applicant, and must:
2-3 (1) state that the applicant has reason to believe and
2-4 does believe that the client has a need for major medical or dental
2-5 treatment, psychoactive medication, or a highly restrictive
2-6 procedure;
2-7 (2) specify the condition proposed to be treated;
2-8 (3) provide a description of the proposed treatment,
2-9 including the risks and benefits to the client of the proposed
2-10 treatment;
2-11 (4) provide a description of generally accepted
2-12 alternatives to the proposed treatment, including the risks and
2-13 potential benefits to the client of the alternatives, and the
2-14 reasons the alternatives were rejected;
2-15 (5) state the applicant's opinion on whether the
2-16 proposed treatment promotes the client's best interest and the
2-17 grounds for the opinion;
2-18 (6) [(5)] state the client's opinion about the
2-19 proposed treatment, if known;
2-20 (7) [(6)] provide any other information necessary to
2-21 determine the client's best interests regarding the treatment; and
2-22 (8) [(7)] state that the client does not have a
2-23 guardian of the person and does not have a parent, spouse, child,
2-24 or other person with demonstrated interest in the care and welfare
2-25 of the client who is able and willing to become the client's
3-1 guardian or surrogate decision-maker.
3-2 SECTION 3. Section 597.045, Health and Safety Code, is
3-3 amended to read as follows:
3-4 Sec. 597.045. NOTICE OF REVIEW OF APPLICATION FOR TREATMENT
3-5 DECISION. (a) Following [On] receipt of an application for a
3-6 treatment decision that meets the requirements of Section
3-7 597.044(b), the department shall appoint a surrogate consent
3-8 committee.
3-9 (b) [The department shall notify pro bono attorney programs
3-10 if available in the area in which the client resides of the intent
3-11 to review an application for treatment decision.]
3-12 [(c)] The ICF-MR facility with assistance from the
3-13 department shall schedule a review of the application.
3-14 (c) [(d)] The ICF-MR facility with assistance from the
3-15 department shall send notice of the date, place, and time of the
3-16 review to the surrogate consent committee, [the pro bono attorney
3-17 program if available in the area in which the client resides,] the
3-18 client who is the subject of the application, the client's actively
3-19 involved parent, spouse, adult child, or other person known to have
3-20 a demonstrated interest in the care and welfare of the client, and
3-21 any other person as prescribed by board rule. The ICF-MR facility
3-22 shall include a copy of the application and a statement of the
3-23 committee's procedure for consideration of the application,
3-24 including the opportunity to be heard or to present evidence and to
3-25 appeal.
4-1 SECTION 4. Subsection (c), Section 597.046, Health and
4-2 Safety Code, is amended to read as follows:
4-3 (c) If a committee that does not include in its membership
4-4 an individual listed in Section 597.043(c)(1) is to review an
4-5 application for a treatment decision about psychoactive medication,
4-6 the department [committee chair] shall provide consultation
4-7 [consult] with a health care professional licensed or registered in
4-8 this state to assist the committee in the determination of the best
4-9 interest of the client.
4-10 SECTION 5. Subsections (a), (e), and (f), Section 597.048,
4-11 Health and Safety Code, are amended to read as follows:
4-12 (a) The committee shall review the application at the time,
4-13 place, and date provided [by the ICF-MR facility] in the notice
4-14 under Section 597.045.
4-15 (e) If practicable, the committee shall interview and
4-16 observe the client before making a determination of the client's
4-17 best interest, and in those cases when a client is not interviewed,
4-18 the reason must be documented in the committee's [client's] record.
4-19 (f) At any time before the committee makes its determination
4-20 of a client's best interest under Section 597.049, the committee
4-21 chair may [shall] suspend the review of the application for not
4-22 more than five days if any person applies for appointment as the
4-23 client's guardian of the person in accordance with the Texas
4-24 Probate Code.
4-25 SECTION 6. Subsection (d), Section 597.049, Health and
5-1 Safety Code, is amended to read as follows:
5-2 (d) The committee shall determine a date on which the
5-3 consent becomes effective and a date on which the consent expires.
5-4 SECTION 7. Subsection (b), Section 597.050, Health and
5-5 Safety Code, is amended to read as follows:
5-6 (b) The ICF-MR facility [committee] shall send a copy of the
5-7 committee's opinion to:
5-8 (1) each person notified under Section 597.045; and
5-9 (2) [the director of the client's ICF-MR facility; and]
5-10 [(3)] the department.
5-11 SECTION 8. Subsection (b), Section 597.052, Health and
5-12 Safety Code, is amended to read as follows:
5-13 (b) The interdisciplinary team may consent to psychoactive
5-14 medication subsequent to the initial consent [decision] for
5-15 administration of psychoactive medication made by a surrogate
5-16 consent committee in accordance with rules of the department until
5-17 the expiration date of the consent.
5-18 SECTION 9. Section 597.054, Health and Safety Code, is
5-19 amended to read as follows:
5-20 Sec. 597.054. PROCEDURES. (a) Each ICF-MR shall develop
5-21 procedures for the surrogate consent committees in accordance with
5-22 the rules adopted under Section 597.002.
5-23 (b) [A committee shall phase in, during the three-year
5-24 period immediately following the effective date of this chapter,
5-25 its initial review process for applications for treatment decisions
6-1 regarding adult clients who do not have legal guardians and who are
6-2 receiving psychoactive medication.]
6-3 [(c)] A committee is not subject to Chapter 2001, Government
6-4 Code, Chapter 551, Government Code, or Chapter 552, Government
6-5 Code.
6-6 SECTION 10. Section 597.055, Health and Safety Code, is
6-7 repealed.
6-8 SECTION 11. The importance of this legislation and the
6-9 crowded condition of the calendars in both houses create an
6-10 emergency and an imperative public necessity that the
6-11 constitutional rule requiring bills to be read on three several
6-12 days in each house be suspended, and this rule is hereby suspended,
6-13 and that this Act take effect and be in force from and after its
6-14 passage, and it is so enacted.