1-1 By: Harris S.B. No. 972 1-2 (In the Senate - Filed March 6, 1997; March 10, 1997, read 1-3 first time and referred to Committee on Health and Human Services; 1-4 April 1, 1997, reported favorably, as amended, by the following 1-5 vote: Yeas 10, Nays 0; April 1, 1997, sent to printer.) 1-6 COMMITTEE AMENDMENT NO. 1 By: Harris 1-7 Amend S.B. No. 972 on page 5, by striking lines 12-21, and adding 1-8 the following: 1-9 "In an emergency, I prefer the following treatment FIRST 1-10 (circle one) Restraint/Seclusion/Medication. 1-11 In an emergency, I prefer the following treatment SECOND 1-12 (circle one) Restraint/Seclusion/Medication. 1-13 In an emergency, I prefer the following treatment THIRD 1-14 (circle one) Restraint/Seclusion/Medication. 1-15 ______ I prefer a male/female to administer restraint, seclusion, 1-16 and/or medications. 1-17 Options for treatment prior to use of restraint, seclusion, and/or 1-18 medications: 1-19 ___________________________________________________________________ 1-20 ___________________________________________________________________ 1-21 _________________________________________________________________." 1-22 COMMITTEE AMENDMENT NO. 2 By: Harris 1-23 Amend S.B. No. 972 on page 3, line 37, after the word "principal" 1-24 by adding ", or principal's guardian, if appropriate,". 1-25 A BILL TO BE ENTITLED 1-26 AN ACT 1-27 relating to mental health treatment decisions made on behalf of an 1-28 incapacitated individual and authorizing a declaration for mental 1-29 health treatment. 1-30 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-31 SECTION 1. Title 6, Civil Practice and Remedies Code, is 1-32 amended by adding Chapter 137 to read as follows: 1-33 CHAPTER 137. DECLARATION FOR MENTAL HEALTH TREATMENT 1-34 Sec. 137.001. DEFINITIONS. In this chapter: 1-35 (1) "Adult" means a person 18 years of age or older or 1-36 a person under 18 years of age who has had the disabilities of 1-37 minority removed. 1-38 (2) "Attending physician" means the physician, 1-39 selected by or assigned to a patient, who has primary 1-40 responsibility for the treatment and care of the patient. 1-41 (3) "Declaration for mental health treatment" means a 1-42 document making a declaration of preferences or instructions 1-43 regarding mental health treatment. 1-44 (4) "Health care provider" means an individual or 1-45 facility licensed, certified, or otherwise authorized to administer 1-46 health care or treatment, for profit or otherwise, in the ordinary 1-47 course of business or professional practice and includes a 1-48 physician or other health care provider, a residential care 1-49 provider, or an inpatient mental health facility as defined by 1-50 Section 571.003, Health and Safety Code. 1-51 (5) "Incapacitated" means that, in the opinion of the 1-52 court in a guardianship proceeding under Chapter XIII, Texas 1-53 Probate Code, or in a medication hearing under Section 574.106, 1-54 Health and Safety Code, a person lacks the ability to understand 1-55 the nature and consequences of a proposed treatment, including the 1-56 benefits, risks, and alternatives to the proposed treatment, and 1-57 lacks the ability to make mental health treatment decisions because 1-58 of impairment. 1-59 (6) "Mental health treatment" means electroconvulsive 1-60 or other convulsive treatment, treatment of mental illness with 1-61 psychoactive medication as defined by Section 574.101, Health and 1-62 Safety Code, or emergency mental health treatment. 1-63 (7) "Principal" means a person who has executed a 1-64 declaration for mental health treatment. 2-1 Sec. 137.002. PERSONS WHO MAY EXECUTE DECLARATION FOR MENTAL 2-2 HEALTH TREATMENT; PERIOD OF VALIDITY. (a) An adult who is not 2-3 incapacitated may execute a declaration for mental health 2-4 treatment. The preferences or instructions may include consent to 2-5 or refusal of mental health treatment. 2-6 (b) A declaration for mental health treatment is effective 2-7 on execution as provided by this chapter. Except as provided by 2-8 Subsection (c), a declaration for mental health treatment expires 2-9 on the third anniversary of the date of its execution or when 2-10 revoked by the principal, whichever is earlier. 2-11 (c) If the declaration for mental health treatment is in 2-12 effect and the principal is incapacitated on the third anniversary 2-13 of the date of its execution, the declaration remains in effect 2-14 until the principal is no longer incapacitated. 2-15 Sec. 137.003. EXECUTION AND WITNESSES. (a) A declaration 2-16 for mental health treatment must be signed by the principal in the 2-17 presence of two or more subscribing witnesses. 2-18 (b) A witness may not, at the time of execution, be: 2-19 (1) the principal's health or residential care 2-20 provider or an employee of that provider; 2-21 (2) the operator of a community health care facility 2-22 providing care to the principal or an employee of an operator of 2-23 the facility; 2-24 (3) a person related to the principal by blood, 2-25 marriage, or adoption; 2-26 (4) a person entitled to any part of the estate of the 2-27 principal on the death of the principal under a will, trust, or 2-28 deed in existence or who would be entitled to any part of the 2-29 estate by operation of law if the principal died intestate; or 2-30 (5) a person who has a claim against the estate of the 2-31 principal. 2-32 (c) For a witness's signature to be effective, the witness 2-33 must sign a statement affirming that, at the time the declaration 2-34 for mental health treatment was signed, the principal: 2-35 (1) appeared to be of sound mind to make a mental 2-36 health treatment decision; 2-37 (2) has stated in the witness's presence that the 2-38 principal was aware of the nature of the declaration for mental 2-39 health treatment and that the principal was signing the document 2-40 voluntarily and free from any duress; and 2-41 (3) requested that the witness serve as a witness to 2-42 the principal's execution of the document. 2-43 Sec. 137.004. HEALTH CARE PROVIDER TO ACT IN ACCORDANCE WITH 2-44 DECLARATION FOR MENTAL HEALTH TREATMENT. A physician or other 2-45 health care provider shall act in accordance with the declaration 2-46 for mental health treatment when the principal has been found to be 2-47 incapacitated. A physician or other provider shall continue to 2-48 seek and act in accordance with the principal's informed consent to 2-49 all mental health treatment decisions if the principal is capable 2-50 of providing informed consent. 2-51 Sec. 137.005. LIMITATION ON LIABILITY. (a) An attending 2-52 physician, health or residential care provider, or person acting 2-53 for or under an attending physician's or health or residential care 2-54 provider's control is not subject to criminal or civil liability 2-55 and has not engaged in professional misconduct for an act or 2-56 omission if the act or omission is done in good faith under the 2-57 terms of a declaration for mental health treatment. 2-58 (b) An attending physician, health or residential care 2-59 provider, or person acting for or under an attending physician's or 2-60 health or residential care provider's control does not engage in 2-61 professional misconduct for: 2-62 (1) failure to act in accordance with a declaration 2-63 for mental health treatment if the physician, provider, or other 2-64 person: 2-65 (A) was not provided with a copy of the 2-66 declaration; and 2-67 (B) had no knowledge of the declaration after a 2-68 good faith attempt to learn of the existence of a declaration; or 2-69 (2) acting in accordance with a directive for mental 3-1 health treatment after the directive has expired or has been 3-2 revoked if the physician, provider, or other person does not have 3-3 knowledge of the expiration or revocation. 3-4 Sec. 137.006. DISCRIMINATION RELATING TO EXECUTION OF 3-5 DECLARATION FOR MENTAL HEALTH TREATMENT. A health or residential 3-6 care provider, health care service plan, insurer issuing disability 3-7 insurance, self-insured employee benefit plan, or nonprofit 3-8 hospital service plan may not: 3-9 (1) charge a person a different rate solely because 3-10 the person has executed a declaration for mental health treatment; 3-11 (2) require a person to execute a declaration for 3-12 mental health treatment before: 3-13 (A) admitting the person to a hospital, nursing 3-14 home, or residential care home; 3-15 (B) insuring the person; or 3-16 (C) allowing the person to receive health or 3-17 residential care; 3-18 (3) refuse health or residential care to a person 3-19 solely because the person has executed a declaration for mental 3-20 health treatment; or 3-21 (4) discharge the person solely because the person has 3-22 or has not executed a declaration for mental health treatment. 3-23 Sec. 137.007. USE AND EFFECT OF DECLARATION FOR MENTAL 3-24 HEALTH TREATMENT. On being presented with a declaration for mental 3-25 health treatment, a physician or other health care provider shall 3-26 make the declaration a part of the principal's medical record. 3-27 When acting in accordance with a declaration for mental health 3-28 treatment, a physician or other health care provider shall comply 3-29 with the declaration to the fullest extent possible. If the 3-30 physician or other provider is unwilling at any time to comply with 3-31 the declaration, the physician or provider may withdraw from 3-32 providing treatment consistent with the exercise of independent 3-33 medical judgment and must promptly: 3-34 (1) notify the principal of that action; and 3-35 (2) document the notification in the principal's 3-36 medical record. 3-37 Sec. 137.008. DISREGARD OF DECLARATION FOR MENTAL HEALTH 3-38 TREATMENT. (a) A physician or other health care provider may 3-39 subject the principal to mental health treatment in a manner 3-40 contrary to the principal's wishes as expressed in a declaration 3-41 for mental health treatment only: 3-42 (1) if the principal is under an order for temporary 3-43 or extended mental health services under Section 574.034 or 3-44 574.035, Health and Safety Code, and treatment is authorized in 3-45 compliance with Section 574.106, Health and Safety Code; or 3-46 (2) in case of an emergency when the principal's 3-47 instructions have not been effective in avoiding the emergency. 3-48 (b) For purposes of Subsection (a), "emergency" means a 3-49 situation in which it is immediately necessary to treat a patient 3-50 to prevent: 3-51 (1) probable imminent death or serious bodily injury 3-52 to the patient because the patient: 3-53 (A) overtly or continually is threatening or 3-54 attempting to commit suicide or serious bodily injury to the 3-55 patient; or 3-56 (B) is behaving in a manner that indicates that 3-57 the patient is unable to satisfy the patient's need for 3-58 nourishment, essential medical care, or self-protection; or 3-59 (2) imminent physical or emotional harm to another 3-60 because of threats, attempts, or other acts of the patient. 3-61 (c) A declaration for mental health treatment does not limit 3-62 any authority provided by Chapter 573 or 574, Health and Safety 3-63 Code: 3-64 (1) to take a person into custody; or 3-65 (2) to admit or retain a person in a mental health 3-66 treatment facility. 3-67 (d) This section does not apply to the use of 3-68 electroconvulsive treatment or other convulsive treatment. 3-69 Sec. 137.009. CONFLICTING OR CONTRARY PROVISIONS. 4-1 (a) Mental health treatment instructions contained in a 4-2 declaration executed in accordance with this chapter supersede any 4-3 contrary or conflicting instructions given by: 4-4 (1) a durable power of attorney under Chapter 135; or 4-5 (2) a guardian appointed under Chapter XIII, Texas 4-6 Probate Code, after the execution of the declaration. 4-7 (b) Mental health treatment instructions contained in a 4-8 declaration executed in accordance with this chapter shall be 4-9 conclusive evidence of a declarant's preference in a medication 4-10 hearing under Section 574.106, Health and Safety Code. 4-11 Sec. 137.010. REVOCATION. (a) A declaration for mental 4-12 health treatment is revoked by: 4-13 (1) notification at any time by a principal, when 4-14 competent, to a licensed or certified health or residential care 4-15 provider; 4-16 (2) any act of the principal that demonstrates a 4-17 specific intent to revoke the declaration; or 4-18 (3) the principal executing a later declaration for 4-19 mental health treatment. 4-20 (b) A principal's health or residential care provider who is 4-21 informed of or provided with a revocation of a declaration for 4-22 mental health treatment immediately shall: 4-23 (1) record the revocation in the principal's medical 4-24 record; and 4-25 (2) give notice of the revocation to any other health 4-26 or residential care provider the provider knows to be responsible 4-27 for the principal's care. 4-28 Sec. 137.011. FORM OF DECLARATION FOR MENTAL HEALTH 4-29 TREATMENT. The declaration for mental health treatment must be in 4-30 substantially the following form: 4-31 DECLARATION FOR MENTAL HEALTH TREATMENT 4-32 I, __________________, being an adult of sound mind, wilfully 4-33 and voluntarily make this declaration for mental health treatment 4-34 to be followed if it is determined by a court that my ability to 4-35 understand the nature and consequences of a proposed treatment, 4-36 including the benefits, risks, and alternatives to the proposed 4-37 treatment, is impaired to such an extent that I lack the capacity 4-38 to make mental health treatment decisions. "Mental health 4-39 treatment" means electroconvulsive or other convulsive treatment, 4-40 treatment of mental illness with psychoactive medication, and 4-41 preferences regarding emergency mental health treatment. 4-42 (OPTIONAL PARAGRAPH) I understand that I may become incapable 4-43 of giving or withholding informed consent for mental health 4-44 treatment due to the symptoms of a diagnosed mental disorder. 4-45 These symptoms may include: 4-46 ___________________________________________________________________ 4-47 ___________________________________________________________________ 4-48 PSYCHOACTIVE MEDICATIONS 4-49 If I become incapable of giving or withholding informed 4-50 consent for mental health treatment, my wishes regarding 4-51 psychoactive medications are as follows: 4-52 _____ I consent to the administration of the following 4-53 medications: 4-54 ___________________________________________________________________ 4-55 _____ I do not consent to the administration of the following 4-56 medications: 4-57 ___________________________________________________________________ 4-58 _____ I consent to the administration of a federal Food and Drug 4-59 Administration approved medication that was only approved and in 4-60 existence after my declaration and that is considered in the same 4-61 class of psychoactive medications as stated below: 4-62 ___________________________________________________________________ 4-63 ___________________________________________________________________ 4-64 Conditions or limitations:___________________________________ 4-65 ___________________________________________________________________ 4-66 ___________________________________________________________________ 4-67 CONVULSIVE TREATMENT 4-68 If I become incapable of giving or withholding informed 4-69 consent for mental health treatment, my wishes regarding convulsive 5-1 treatment are as follows: 5-2 _____ I consent to the administration of convulsive treatment. 5-3 _____ I do not consent to the administration of convulsive 5-4 treatment. 5-5 Conditions or limitations:___________________________________ 5-6 ___________________________________________________________________ 5-7 ___________________________________________________________________ 5-8 PREFERENCES FOR EMERGENCY TREATMENT 5-9 _____ In an emergency, I prefer chemical restraint to physical 5-10 restraint. 5-11 _____ In an emergency, I prefer physical restraint to chemical 5-12 restraint. 5-13 _____ I prefer a male/female to administer physical/chemical 5-14 restraints. 5-15 Options for treatment prior to use of physical/chemical 5-16 restraint or seclusion: 5-17 ___________________________________________________________________ 5-18 ___________________________________________________________________ 5-19 Conditions or limitations:___________________________________ 5-20 ___________________________________________________________________ 5-21 ADDITIONAL PREFERENCES OR INSTRUCTIONS 5-22 ___________________________________________________________________ 5-23 ___________________________________________________________________ 5-24 ___________________________________________________________________ 5-25 Conditions or limitations:___________________________________ 5-26 ___________________________________________________________________ 5-27 ___________________________________________________________________ 5-28 Signature of Principal/Date: _____________________________________ 5-29 STATEMENT OF WITNESSES 5-30 I declare under penalty of perjury that the principal's name 5-31 has been represented to me by the principal, that the principal 5-32 signed or acknowledged this declaration in my presence, that I 5-33 believe the principal to be of sound mind, that the principal has 5-34 affirmed that the principal is aware of the nature of the document 5-35 and is signing it voluntarily and free from duress, that the 5-36 principal requested that I serve as witness to the principal's 5-37 execution of this document, and that I am not a provider of health 5-38 or residential care to the principal, an employee of a provider of 5-39 health or residential care to the principal, an operator of a 5-40 community health care facility providing care to the principal, or 5-41 an employee of an operator of a community health care facility 5-42 providing care to the principal. 5-43 I declare that I am not related to the principal by blood, 5-44 marriage, or adoption and that to the best of my knowledge I am not 5-45 entitled to and do not have a claim against any part of the estate 5-46 of the principal on the death of the principal under a will or by 5-47 operation of law. 5-48 Witness Signature:_________________________________________________ 5-49 Print Name:________________________________________________________ 5-50 Date:______________________ 5-51 Address:___________________________________________________________ 5-52 Witness Signature:_________________________________________________ 5-53 Print Name:________________________________________________________ 5-54 Date:______________________ 5-55 Address:___________________________________________________________ 5-56 NOTICE TO PERSON MAKING A DECLARATION 5-57 FOR MENTAL HEALTH TREATMENT 5-58 This is an important legal document. It creates a 5-59 declaration for mental health treatment. Before signing this 5-60 document, you should know these important facts: 5-61 This document allows you to make decisions in advance about 5-62 mental health treatment and specifically three types of mental 5-63 health treatment: psychoactive medication, convulsive therapy, and 5-64 emergency mental health treatment. The instructions that you 5-65 include in this declaration will be followed only if a court 5-66 believes that you are incapacitated to make treatment decisions. 5-67 Otherwise, you will be considered able to give or withhold consent 5-68 for the treatments. 5-69 This document will continue in effect for a period of three 6-1 years unless you become incapacitated to participate in mental 6-2 health treatment decisions. If this occurs, the directive will 6-3 continue in effect until you are no longer incapacitated. 6-4 You have the right to revoke this document in whole or in 6-5 part at any time you have not been determined to be incapacitated. 6-6 YOU MAY NOT REVOKE THIS DECLARATION WHEN YOU ARE CONSIDERED BY A 6-7 COURT TO BE INCAPACITATED. A revocation is effective when it is 6-8 communicated to your attending physician or other health care 6-9 provider. 6-10 If there is anything in this document that you do not 6-11 understand, you should ask a lawyer to explain it to you. This 6-12 declaration is not valid unless it is signed by two qualified 6-13 witnesses who are personally known to you and who are present when 6-14 you sign or acknowledge your signature. 6-15 SECTION 2. The importance of this legislation and the 6-16 crowded condition of the calendars in both houses create an 6-17 emergency and an imperative public necessity that the 6-18 constitutional rule requiring bills to be read on three several 6-19 days in each house be suspended, and this rule is hereby suspended, 6-20 and that this Act take effect and be in force from and after its 6-21 passage, and it is so enacted. 6-22 * * * * *