By: Harris, Moncrief S.B. No. 972
A BILL TO BE ENTITLED
AN ACT
1-1 relating to mental health treatment decisions made on behalf of an
1-2 incapacitated individual and authorizing a declaration for mental
1-3 health treatment.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Title 6, Civil Practice and Remedies Code, is
1-6 amended by adding Chapter 137 to read as follows:
1-7 CHAPTER 137. DECLARATION FOR MENTAL HEALTH TREATMENT
1-8 Sec. 137.001. DEFINITIONS. In this chapter:
1-9 (1) "Adult" means a person 18 years of age or older or
1-10 a person under 18 years of age who has had the disabilities of
1-11 minority removed.
1-12 (2) "Attending physician" means the physician,
1-13 selected by or assigned to a patient, who has primary
1-14 responsibility for the treatment and care of the patient.
1-15 (3) "Declaration for mental health treatment" means a
1-16 document making a declaration of preferences or instructions
1-17 regarding mental health treatment.
1-18 (4) "Health care provider" means an individual or
1-19 facility licensed, certified, or otherwise authorized to administer
1-20 health care or treatment, for profit or otherwise, in the ordinary
1-21 course of business or professional practice and includes a
1-22 physician or other health care provider, a residential care
1-23 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.
3-1 (c) If the declaration for mental health treatment is in
3-2 effect and the principal is incapacitated on the third anniversary
3-3 of the date of its execution, the declaration remains in effect
3-4 until the principal is no longer incapacitated.
3-5 Sec. 137.003. EXECUTION AND WITNESSES. (a) A declaration
3-6 for mental health treatment must be signed by the principal in the
3-7 presence of two or more subscribing witnesses.
3-8 (b) A witness may not, at the time of execution, be:
3-9 (1) the principal's health or residential care
3-10 provider or an employee of that provider;
3-11 (2) the operator of a community health care facility
3-12 providing care to the principal or an employee of an operator of
3-13 the facility;
3-14 (3) a person related to the principal by blood,
3-15 marriage, or adoption;
3-16 (4) a person entitled to any part of the estate of the
3-17 principal on the death of the principal under a will, trust, or
3-18 deed in existence or who would be entitled to any part of the
3-19 estate by operation of law if the principal died intestate; or
3-20 (5) a person who has a claim against the estate of the
3-21 principal.
3-22 (c) For a witness's signature to be effective, the witness
3-23 must sign a statement affirming that, at the time the declaration
3-24 for mental health treatment was signed, the principal:
3-25 (1) appeared to be of sound mind to make a mental
4-1 health treatment decision;
4-2 (2) has stated in the witness's presence that the
4-3 principal was aware of the nature of the declaration for mental
4-4 health treatment and that the principal was signing the document
4-5 voluntarily and free from any duress; and
4-6 (3) requested that the witness serve as a witness to
4-7 the principal's execution of the document.
4-8 Sec. 137.004. HEALTH CARE PROVIDER TO ACT IN ACCORDANCE WITH
4-9 DECLARATION FOR MENTAL HEALTH TREATMENT. A physician or other
4-10 health care provider shall act in accordance with the declaration
4-11 for mental health treatment when the principal has been found to be
4-12 incapacitated. A physician or other provider shall continue to
4-13 seek and act in accordance with the principal's informed consent to
4-14 all mental health treatment decisions if the principal is capable
4-15 of providing informed consent.
4-16 Sec. 137.005. LIMITATION ON LIABILITY. (a) An attending
4-17 physician, health or residential care provider, or person acting
4-18 for or under an attending physician's or health or residential care
4-19 provider's control is not subject to criminal or civil liability
4-20 and has not engaged in professional misconduct for an act or
4-21 omission if the act or omission is done in good faith under the
4-22 terms of a declaration for mental health treatment.
4-23 (b) An attending physician, health or residential care
4-24 provider, or person acting for or under an attending physician's or
4-25 health or residential care provider's control does not engage in
5-1 professional misconduct for:
5-2 (1) failure to act in accordance with a declaration
5-3 for mental health treatment if the physician, provider, or other
5-4 person:
5-5 (A) was not provided with a copy of the
5-6 declaration; and
5-7 (B) had no knowledge of the declaration after a
5-8 good faith attempt to learn of the existence of a declaration; or
5-9 (2) acting in accordance with a directive for mental
5-10 health treatment after the directive has expired or has been
5-11 revoked if the physician, provider, or other person does not have
5-12 knowledge of the expiration or revocation.
5-13 Sec. 137.006. DISCRIMINATION RELATING TO EXECUTION OF
5-14 DECLARATION FOR MENTAL HEALTH TREATMENT. A health or residential
5-15 care provider, health care service plan, insurer issuing disability
5-16 insurance, self-insured employee benefit plan, or nonprofit
5-17 hospital service plan may not:
5-18 (1) charge a person a different rate solely because
5-19 the person has executed a declaration for mental health treatment;
5-20 (2) require a person to execute a declaration for
5-21 mental health treatment before:
5-22 (A) admitting the person to a hospital, nursing
5-23 home, or residential care home;
5-24 (B) insuring the person; or
5-25 (C) allowing the person to receive health or
6-1 residential care;
6-2 (3) refuse health or residential care to a person
6-3 solely because the person has executed a declaration for mental
6-4 health treatment; or
6-5 (4) discharge the person solely because the person has
6-6 or has not executed a declaration for mental health treatment.
6-7 Sec. 137.007. USE AND EFFECT OF DECLARATION FOR MENTAL
6-8 HEALTH TREATMENT. On being presented with a declaration for mental
6-9 health treatment, a physician or other health care provider shall
6-10 make the declaration a part of the principal's medical record.
6-11 When acting in accordance with a declaration for mental health
6-12 treatment, a physician or other health care provider shall comply
6-13 with the declaration to the fullest extent possible. If the
6-14 physician or other provider is unwilling at any time to comply with
6-15 the declaration, the physician or provider may withdraw from
6-16 providing treatment consistent with the exercise of independent
6-17 medical judgment and must promptly:
6-18 (1) notify the principal, or principal's guardian, if
6-19 appropriate, of that action; and
6-20 (2) document the notification in the principal's
6-21 medical record.
6-22 Sec. 137.008. DISREGARD OF DECLARATION FOR MENTAL HEALTH
6-23 TREATMENT. (a) A physician or other health care provider may
6-24 subject the principal to mental health treatment in a manner
6-25 contrary to the principal's wishes as expressed in a declaration
7-1 for mental health treatment only:
7-2 (1) if the principal is under an order for temporary
7-3 or extended mental health services under Section 574.034 or
7-4 574.035, Health and Safety Code, and treatment is authorized in
7-5 compliance with Section 574.106, Health and Safety Code; or
7-6 (2) in case of an emergency when the principal's
7-7 instructions have not been effective in avoiding the emergency.
7-8 (b) For purposes of Subsection (a), "emergency" means a
7-9 situation in which it is immediately necessary to treat a patient
7-10 to prevent:
7-11 (1) probable imminent death or serious bodily injury
7-12 to the patient because the patient:
7-13 (A) overtly or continually is threatening or
7-14 attempting to commit suicide or serious bodily injury to the
7-15 patient; or
7-16 (B) is behaving in a manner that indicates that
7-17 the patient is unable to satisfy the patient's need for
7-18 nourishment, essential medical care, or self-protection; or
7-19 (2) imminent physical or emotional harm to another
7-20 because of threats, attempts, or other acts of the patient.
7-21 (c) A declaration for mental health treatment does not limit
7-22 any authority provided by Chapter 573 or 574, Health and Safety
7-23 Code:
7-24 (1) to take a person into custody; or
7-25 (2) to admit or retain a person in a mental health
8-1 treatment facility.
8-2 (d) This section does not apply to the use of
8-3 electroconvulsive treatment or other convulsive treatment.
8-4 Sec. 137.009. CONFLICTING OR CONTRARY PROVISIONS.
8-5 (a) Mental health treatment instructions contained in a
8-6 declaration executed in accordance with this chapter supersede any
8-7 contrary or conflicting instructions given by:
8-8 (1) a durable power of attorney under Chapter 135; or
8-9 (2) a guardian appointed under Chapter XIII, Texas
8-10 Probate Code, after the execution of the declaration.
8-11 (b) Mental health treatment instructions contained in a
8-12 declaration executed in accordance with this chapter shall be
8-13 conclusive evidence of a declarant's preference in a medication
8-14 hearing under Section 574.106, Health and Safety Code.
8-15 Sec. 137.010. REVOCATION. (a) A declaration for mental
8-16 health treatment is revoked by:
8-17 (1) notification at any time by a principal, when
8-18 competent, to a licensed or certified health or residential care
8-19 provider;
8-20 (2) any act of the principal that demonstrates a
8-21 specific intent to revoke the declaration; or
8-22 (3) the principal executing a later declaration for
8-23 mental health treatment.
8-24 (b) A principal's health or residential care provider who is
8-25 informed of or provided with a revocation of a declaration for
9-1 mental health treatment immediately shall:
9-2 (1) record the revocation in the principal's medical
9-3 record; and
9-4 (2) give notice of the revocation to any other health
9-5 or residential care provider the provider knows to be responsible
9-6 for the principal's care.
9-7 Sec. 137.011. FORM OF DECLARATION FOR MENTAL HEALTH
9-8 TREATMENT. The declaration for mental health treatment must be in
9-9 substantially the following form:
9-10 DECLARATION FOR MENTAL HEALTH TREATMENT
9-11 I, __________________, being an adult of sound mind, wilfully
9-12 and voluntarily make this declaration for mental health treatment
9-13 to be followed if it is determined by a court that my ability to
9-14 understand the nature and consequences of a proposed treatment,
9-15 including the benefits, risks, and alternatives to the proposed
9-16 treatment, is impaired to such an extent that I lack the capacity
9-17 to make mental health treatment decisions. "Mental health
9-18 treatment" means electroconvulsive or other convulsive treatment,
9-19 treatment of mental illness with psychoactive medication, and
9-20 preferences regarding emergency mental health treatment.
9-21 (OPTIONAL PARAGRAPH) I understand that I may become incapable
9-22 of giving or withholding informed consent for mental health
9-23 treatment due to the symptoms of a diagnosed mental disorder.
9-24 These symptoms may include:
9-25 ___________________________________________________________________
10-1 ___________________________________________________________________
10-2 PSYCHOACTIVE MEDICATIONS
10-3 If I become incapable of giving or withholding informed
10-4 consent for mental health treatment, my wishes regarding
10-5 psychoactive medications are as follows:
10-6 _____ I consent to the administration of the following
10-7 medications:
10-8 ___________________________________________________________________
10-9 _____ I do not consent to the administration of the following
10-10 medications:
10-11 ___________________________________________________________________
10-12 _____ I consent to the administration of a federal Food and Drug
10-13 Administration approved medication that was only approved and in
10-14 existence after my declaration and that is considered in the same
10-15 class of psychoactive medications as stated below:
10-16 ___________________________________________________________________
10-17 ___________________________________________________________________
10-18 Conditions or limitations:___________________________________
10-19 ___________________________________________________________________
10-20 ___________________________________________________________________
10-21 CONVULSIVE TREATMENT
10-22 If I become incapable of giving or withholding informed
10-23 consent for mental health treatment, my wishes regarding convulsive
10-24 treatment are as follows:
10-25 _____ I consent to the administration of convulsive treatment.
11-1 _____ I do not consent to the administration of convulsive
11-2 treatment.
11-3 Conditions or limitations:___________________________________
11-4 ___________________________________________________________________
11-5 ___________________________________________________________________
11-6 PREFERENCES FOR EMERGENCY TREATMENT
11-7 In an emergency, I prefer the following treatment FIRST
11-8 (circle one) Restraint/Seclusion/Medication.
11-9 In an emergency, I prefer the following treatment SECOND
11-10 (circle one) Restraint/Seclusion/Medication.
11-11 In an emergency, I prefer the following treatment THIRD
11-12 (circle one) Restraint/Seclusion/Medication.
11-13 ______ I prefer a male/female to administer restraint, seclusion,
11-14 and/or medications.
11-15 Options for treatment prior to use of restraint, seclusion, and/or
11-16 medications:
11-17 ___________________________________________________________________
11-18 ___________________________________________________________________
11-19 Conditions or limitations:___________________________________
11-20 ___________________________________________________________________
11-21 ADDITIONAL PREFERENCES OR INSTRUCTIONS
11-22 ___________________________________________________________________
11-23 ___________________________________________________________________
11-24 ___________________________________________________________________
11-25 Conditions or limitations:___________________________________
12-1 ___________________________________________________________________
12-2 ___________________________________________________________________
12-3 Signature of Principal/Date: _____________________________________
12-4 STATEMENT OF WITNESSES
12-5 I declare under penalty of perjury that the principal's name
12-6 has been represented to me by the principal, that the principal
12-7 signed or acknowledged this declaration in my presence, that I
12-8 believe the principal to be of sound mind, that the principal has
12-9 affirmed that the principal is aware of the nature of the document
12-10 and is signing it voluntarily and free from duress, that the
12-11 principal requested that I serve as witness to the principal's
12-12 execution of this document, and that I am not a provider of health
12-13 or residential care to the principal, an employee of a provider of
12-14 health or residential care to the principal, an operator of a
12-15 community health care facility providing care to the principal, or
12-16 an employee of an operator of a community health care facility
12-17 providing care to the principal.
12-18 I declare that I am not related to the principal by blood,
12-19 marriage, or adoption and that to the best of my knowledge I am not
12-20 entitled to and do not have a claim against any part of the estate
12-21 of the principal on the death of the principal under a will or by
12-22 operation of law.
12-23 Witness Signature:_________________________________________________
12-24 Print Name:________________________________________________________
12-25 Date:______________________
13-1 Address:___________________________________________________________
13-2 Witness Signature:_________________________________________________
13-3 Print Name:________________________________________________________
13-4 Date:______________________
13-5 Address:___________________________________________________________
13-6 NOTICE TO PERSON MAKING A DECLARATION
13-7 FOR MENTAL HEALTH TREATMENT
13-8 This is an important legal document. It creates a
13-9 declaration for mental health treatment. Before signing this
13-10 document, you should know these important facts:
13-11 This document allows you to make decisions in advance about
13-12 mental health treatment and specifically three types of mental
13-13 health treatment: psychoactive medication, convulsive therapy, and
13-14 emergency mental health treatment. The instructions that you
13-15 include in this declaration will be followed only if a court
13-16 believes that you are incapacitated to make treatment decisions.
13-17 Otherwise, you will be considered able to give or withhold consent
13-18 for the treatments.
13-19 This document will continue in effect for a period of three
13-20 years unless you become incapacitated to participate in mental
13-21 health treatment decisions. If this occurs, the directive will
13-22 continue in effect until you are no longer incapacitated.
13-23 You have the right to revoke this document in whole or in
13-24 part at any time you have not been determined to be incapacitated.
13-25 YOU MAY NOT REVOKE THIS DECLARATION WHEN YOU ARE CONSIDERED BY A
14-1 COURT TO BE INCAPACITATED. A revocation is effective when it is
14-2 communicated to your attending physician or other health care
14-3 provider.
14-4 If there is anything in this document that you do not
14-5 understand, you should ask a lawyer to explain it to you. This
14-6 declaration is not valid unless it is signed by two qualified
14-7 witnesses who are personally known to you and who are present when
14-8 you sign or acknowledge your signature.
14-9 SECTION 2. The importance of this legislation and the
14-10 crowded condition of the calendars in both houses create an
14-11 emergency and an imperative public necessity that the
14-12 constitutional rule requiring bills to be read on three several
14-13 days in each house be suspended, and this rule is hereby suspended,
14-14 and that this Act take effect and be in force from and after its
14-15 passage, and it is so enacted.