By: Moncrief S.B. No. 209
99S0102/1
A BILL TO BE ENTITLED
AN ACT
1-1 relating to surrogate decision-making regarding treatment of
1-2 certain individuals with mental retardation or related conditions.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Chapter 597, Health and Safety Code, as amended
1-5 by Chapter 450, Acts of the 75th Legislature, 1997, is reenacted to
1-6 read as follows:
1-7 CHAPTER 597. CAPACITY OF CLIENTS TO CONSENT TO TREATMENT
1-8 SUBCHAPTER A. GENERAL PROVISIONS
1-9 Sec. 597.001. DEFINITIONS. In this chapter:
1-10 (1) "Highly restrictive procedure" means the
1-11 application of aversive stimuli, exclusionary time-out, physical
1-12 restraint, or a requirement to engage in an effortful task.
1-13 (2) "Client" means a person receiving services in a
1-14 community-based ICF-MR facility.
1-15 (3) "Committee" means a surrogate consent committee
1-16 established under Section 597.042.
1-17 (4) "ICF-MR" has the meaning assigned by Section
1-18 531.002.
1-19 (5) "Interdisciplinary team" means those
1-20 interdisciplinary teams defined in the Code of Federal Regulations
1-21 for participation in the intermediate care facilities for the
1-22 mentally retarded.
1-23 (6) "Major medical and dental treatment" means a
1-24 medical, surgical, dental, or diagnostic procedure or intervention
2-1 that:
2-2 (A) has a significant recovery period;
2-3 (B) presents a significant risk;
2-4 (C) employs a general anesthetic; or
2-5 (D) in the opinion of the primary physician,
2-6 involves a significant invasion of bodily integrity that requires
2-7 the extraction of bodily fluids or an incision or that produces
2-8 substantial pain, discomfort, or debilitation.
2-9 (7) "Psychoactive medication" means any medication
2-10 prescribed for the treatment of symptoms of psychosis or other
2-11 severe mental or emotional disorders and that is used to exercise
2-12 an effect upon the central nervous system for the purposes of
2-13 influencing and modifying behavior, cognition, or affective state.
2-14 (8) "Surrogate decision-maker" means an individual
2-15 authorized under Section 597.041 to consent on behalf of a client
2-16 residing in an ICF-MR facility.
2-17 Sec. 597.002. RULES. The board may adopt rules necessary to
2-18 implement this chapter not later than 180 days after its effective
2-19 date.
2-20 Sec. 597.003. EXCEPTIONS. (a) This chapter does not apply
2-21 to decisions for the following:
2-22 (1) experimental research;
2-23 (2) abortion;
2-24 (3) sterilization;
2-25 (4) management of client funds; and
2-26 (5) electroconvulsive treatment.
3-1 (b) This chapter does not apply to campus-based facilities
3-2 operated by the department.
3-3 (Sections 597.004 to 597.020 reserved for expansion)
3-4 SUBCHAPTER B. ASSESSMENT OF CLIENT'S CAPACITY;
3-5 INCAPACITATED CLIENTS WITHOUT GUARDIANS
3-6 Sec. 597.021. ICF-MR ASSESSMENT OF CLIENT'S CAPACITY TO
3-7 CONSENT TO TREATMENT. (a) The board by rule shall require an
3-8 ICF-MR facility certified in this state to assess the capacity of
3-9 each adult client without a legal guardian to make treatment
3-10 decisions when there is evidence to suggest the individual is not
3-11 capable of making a decision covered under this chapter.
3-12 (b) The rules must require the use of a uniform assessment
3-13 process prescribed by board rule to determine a client's capacity
3-14 to make treatment decisions.
3-15 (Sections 597.022 to 597.040 reserved for expansion)
3-16 SUBCHAPTER C. SURROGATE CONSENT FOR ICF-MR CLIENTS
3-17 Sec. 597.041. SURROGATE DECISION-MAKERS. (a) If the
3-18 results of an assessment conducted in accordance with Section
3-19 597.021 indicate that an adult client who does not have a legal
3-20 guardian or a client under 18 years of age who has no parent, legal
3-21 guardian, or managing or possessory conservator lacks the capacity
3-22 to make a major medical or dental treatment decision, an adult
3-23 surrogate from the following list, in order of descending
3-24 preference, who has decision-making capacity and who is willing to
3-25 consent on behalf of the client may consent to major medical or
3-26 dental treatment on behalf of the client:
4-1 (1) an actively involved spouse;
4-2 (2) an actively involved adult child who has the
4-3 waiver and consent of all other actively involved adult children of
4-4 the client to act as the sole decision-maker;
4-5 (3) an actively involved parent or stepparent;
4-6 (4) an actively involved adult sibling who has the
4-7 waiver and consent of all other actively involved adult siblings of
4-8 the client to act as the sole decision-maker; and
4-9 (5) any other actively involved adult relative who has
4-10 the waiver and consent of all other actively involved adult
4-11 relatives of the client to act as the sole decision-maker.
4-12 (b) Any person who consents on behalf of a client and who
4-13 acts in good faith, reasonably, and without malice is not
4-14 criminally or civilly liable for that action.
4-15 (c) Consent given by the surrogate decision-maker is valid
4-16 and competent to the same extent as if the client had the capacity
4-17 to consent and had consented.
4-18 (d) Any dispute as to the right of a party to act as a
4-19 surrogate decision-maker may be resolved only by a court of record
4-20 under Chapter V, Texas Probate Code.
4-21 Sec. 597.042. SURROGATE CONSENT COMMITTEE ESTABLISHED;
4-22 DEPARTMENTAL SUPPORT. (a) For cases in which there is no guardian
4-23 or surrogate decision-maker available, the department shall
4-24 establish and maintain a list of individuals qualified to serve on
4-25 a surrogate consent committee.
4-26 (b) The department shall provide the staff and assistance
5-1 necessary to perform the duties prescribed by this subchapter.
5-2 Sec. 597.043. COMMITTEE MEMBERSHIP. (a) A surrogate
5-3 consent committee considering an application for a treatment
5-4 decision shall be composed of at least three but not more than five
5-5 members, and consent on behalf of clients shall be based on
5-6 consensus of the members.
5-7 (b) A committee considering an application for a treatment
5-8 decision must consist of individuals who:
5-9 (1) are not employees of the facility;
5-10 (2) do not provide contractual services to the
5-11 facility;
5-12 (3) do not manage or exercise supervisory control
5-13 over:
5-14 (A) the facility or the employees of the
5-15 facility; or
5-16 (B) any company, corporation, or other legal
5-17 entity that manages or exercises control over the facility or the
5-18 employees of the facility;
5-19 (4) do not have a financial interest in the facility
5-20 or in any company, corporation, or other legal entity that has a
5-21 financial interest in the facility; and
5-22 (5) are not related to the client.
5-23 (c) The list of qualified individuals from which committee
5-24 members are drawn shall include:
5-25 (1) health care professionals licensed or registered
5-26 in this state who have specialized training in medicine,
6-1 psychopharmacology, nursing, or psychology;
6-2 (2) persons with mental retardation or parents,
6-3 siblings, spouses, or children of a person with mental retardation;
6-4 (3) attorneys licensed in this state who have
6-5 knowledge of legal issues of concern to persons with mental
6-6 retardation or to the families of persons with mental retardation;
6-7 (4) members of private organizations that advocate on
6-8 behalf of persons with mental retardation; and
6-9 (5) persons with demonstrated expertise or interest in
6-10 the care and treatment of persons with mental disabilities.
6-11 (d) At least one member of the committee must be an
6-12 individual listed in Subsection (c)(1) or (5).
6-13 (e) A member of a committee shall participate in education
6-14 and training as required by department rule.
6-15 (f) The department shall designate a committee chair.
6-16 Sec. 597.044. APPLICATION FOR TREATMENT DECISION. (a) If
6-17 the results of the assessment conducted in accordance with Section
6-18 597.021 indicate that a client who does not have a legal guardian
6-19 or surrogate decision-maker lacks the capacity to make a treatment
6-20 decision about major medical or dental treatment, psychoactive
6-21 medication, or a highly restrictive procedure, the ICF-MR facility
6-22 must file an application for a treatment decision with the
6-23 department.
6-24 (b) An application must be in the form prescribed by the
6-25 department, must be signed by the applicant, and must:
6-26 (1) state that the applicant has reason to believe and
7-1 does believe that the client has a need for major medical or dental
7-2 treatment, psychoactive medication, or a highly restrictive
7-3 procedure;
7-4 (2) specify the condition proposed to be treated;
7-5 (3) provide a description of the proposed treatment,
7-6 including the risks and benefits to the client of the proposed
7-7 treatment;
7-8 (4) provide a description of generally accepted
7-9 alternatives to the proposed treatment, including the risks and
7-10 potential benefits to the client of the alternatives, and the
7-11 reasons the alternatives were rejected;
7-12 (5) state the applicant's opinion on whether the
7-13 proposed treatment promotes the client's best interest and the
7-14 grounds for the opinion;
7-15 (6) state the client's opinion about the proposed
7-16 treatment, if known;
7-17 (7) provide any other information necessary to
7-18 determine the client's best interests regarding the treatment; and
7-19 (8) state that the client does not have a guardian of
7-20 the person and does not have a parent, spouse, child, or other
7-21 person with demonstrated interest in the care and welfare of the
7-22 client who is able and willing to become the client's guardian or
7-23 surrogate decision-maker.
7-24 Sec. 597.045. NOTICE OF REVIEW OF APPLICATION FOR TREATMENT
7-25 DECISION. (a) Following receipt of an application for a treatment
7-26 decision that meets the requirements of Section 597.044(b), the
8-1 department shall appoint a surrogate consent committee.
8-2 (b) The ICF-MR facility with assistance from the department
8-3 shall schedule a review of the application.
8-4 (c) The ICF-MR facility with assistance from the department
8-5 shall send notice of the date, place, and time of the review to the
8-6 surrogate consent committee, the client who is the subject of the
8-7 application, the client's actively involved parent, spouse, adult
8-8 child, or other person known to have a demonstrated interest in the
8-9 care and welfare of the client, and any other person as prescribed
8-10 by board rule. The ICF-MR facility shall include a copy of the
8-11 application and a statement of the committee's procedure for
8-12 consideration of the application, including the opportunity to be
8-13 heard or to present evidence and to appeal.
8-14 Sec. 597.046. PREREVIEW OF APPLICATION. (a) Before the
8-15 date of the review of an application for a treatment decision the
8-16 committee chair shall review the application to determine whether
8-17 additional information may be necessary to assist the committee in
8-18 determining the client's best interest under the circumstances.
8-19 (b) A committee member may consult with a person who might
8-20 assist in the determination of the best interest of the client or
8-21 in learning the personal opinions, beliefs, and values of the
8-22 client.
8-23 (c) If a committee that does not include in its membership
8-24 an individual listed in Section 597.043(c)(1) is to review an
8-25 application for a treatment decision about psychoactive medication,
8-26 the department shall provide consultation with a health care
9-1 professional licensed or registered in this state to assist the
9-2 committee in the determination of the best interest of the client.
9-3 Sec. 597.047. CONFIDENTIAL INFORMATION. Notwithstanding any
9-4 other state law, a person licensed by this state to provide
9-5 services related to health care or to the treatment or care of a
9-6 person with mental retardation, a developmental disability, or a
9-7 mental illness shall provide to the committee members any
9-8 information the committee requests that is relevant to the client's
9-9 need for a proposed treatment.
9-10 Sec. 597.048. REVIEW OF APPLICATION. (a) The committee
9-11 shall review the application at the time, place, and date provided
9-12 in the notice under Section 597.045.
9-13 (b) A person notified under Section 597.045 is entitled to
9-14 be present and to present evidence personally or through a
9-15 representative.
9-16 (c) The committee may take testimony or review evidence from
9-17 any person who might assist the committee in determining a client's
9-18 best interest.
9-19 (d) Formal rules of evidence do not apply to committee
9-20 proceedings.
9-21 (e) If practicable, the committee shall interview and
9-22 observe the client before making a determination of the client's
9-23 best interest, and in those cases when a client is not interviewed,
9-24 the reason must be documented in the committee's record.
9-25 (f) At any time before the committee makes its determination
9-26 of a client's best interest under Section 597.049, the committee
10-1 chair may suspend the review of the application for not more than
10-2 five days if any person applies for appointment as the client's
10-3 guardian of the person in accordance with the Texas Probate Code.
10-4 Sec. 597.049. DETERMINATION OF BEST INTEREST. (a) The
10-5 committee shall make a determination, based on clear and convincing
10-6 evidence, of whether the proposed treatment promotes the client's
10-7 best interest and a determination that:
10-8 (1) a person has not been appointed as the guardian of
10-9 the client's person before the sixth day after proceedings are
10-10 suspended under Section 597.048(f); or
10-11 (2) there is a medical necessity, based on clear and
10-12 convincing evidence, that the determination about the proposed
10-13 treatment occur before guardianship proceedings are completed.
10-14 (b) In making its determination of the best interest of the
10-15 client, the committee shall consider fully the preference of the
10-16 client as articulated at any time.
10-17 (c) According to its determination of the client's best
10-18 interest, the committee shall consent or refuse the treatment on
10-19 the client's behalf.
10-20 (d) The committee shall determine a date on which the
10-21 consent becomes effective and a date on which the consent expires.
10-22 (e) A person serving on a committee who consents or refuses
10-23 to consent on behalf of a client and who acts in good faith,
10-24 reasonably, and without malice is not criminally or civilly liable
10-25 for that action.
10-26 Sec. 597.050. NOTICE OF DETERMINATION. (a) The committee
11-1 shall issue a written opinion containing each of its determinations
11-2 and a separate statement of the committee's findings of fact.
11-3 (b) The ICF-MR facility shall send a copy of the committee's
11-4 opinion to:
11-5 (1) each person notified under Section 597.045; and
11-6 (2) the department.
11-7 Sec. 597.051. EFFECT OF COMMITTEE'S DETERMINATION. This
11-8 chapter does not limit the availability of other lawful means of
11-9 obtaining a client's consent for medical treatment.
11-10 Sec. 597.052. SCOPE OF CONSENT. (a) The committee or the
11-11 surrogate decision-maker may consent to the release of records
11-12 related to the client's condition or treatment to facilitate
11-13 treatment to which the committee or surrogate decision-maker has
11-14 consented.
11-15 (b) The interdisciplinary team may consent to psychoactive
11-16 medication subsequent to the initial consent for administration of
11-17 psychoactive medication made by a surrogate consent committee in
11-18 accordance with rules of the department until the expiration date
11-19 of the consent.
11-20 (c) Unless another decision-making mechanism is provided for
11-21 by law, a client, a client's authorized surrogate decision-maker if
11-22 available, or the client's interdisciplinary team may consent to
11-23 decisions which involve risk to client protection and rights not
11-24 specifically reserved to surrogate decision-makers or surrogate
11-25 consent committees.
11-26 Sec. 597.053. APPEALS. (a) A person notified under Section
12-1 597.045 may appeal the committee's decision by filing a petition in
12-2 the probate court or court having probate jurisdiction for the
12-3 county in which the client resides or in Travis County. The person
12-4 must file the appeal not later than the 15th day after the
12-5 effective date of the committee's determination.
12-6 (b) If the hearing is to be held in a probate court in which
12-7 the judge is not a licensed attorney, the person filing the appeal
12-8 may request that the proceeding be transferred to a court with a
12-9 judge who is licensed to practice law in this state. The probate
12-10 court judge shall transfer the case after receiving the request,
12-11 and the receiving court shall hear the case as if it had been
12-12 originally filed in that court.
12-13 (c) A copy of the petition must be served on all parties of
12-14 record in the proceedings before the committee.
12-15 (d) After considering the nature of the condition of the
12-16 client, the proposed treatment, and the need for timely medical
12-17 attention, the court may issue a temporary restraining order to
12-18 facilitate the appeal. If the order is granted, the court shall
12-19 expedite the trial.
12-20 Sec. 597.054. PROCEDURES. (a) Each ICF-MR shall develop
12-21 procedures for the surrogate consent committees in accordance with
12-22 the rules adopted under Section 597.002.
12-23 (b) A committee is not subject to Chapter 2001, Government
12-24 Code, Chapter 551, Government Code, or Chapter 552, Government
12-25 Code.
12-26 SECTION 2. The importance of this legislation and the
13-1 crowded condition of the calendars in both houses create an
13-2 emergency and an imperative public necessity that the
13-3 constitutional rule requiring bills to be read on three several
13-4 days in each house be suspended, and this rule is hereby suspended,
13-5 and that this Act take effect and be in force from and after its
13-6 passage, and it is so enacted.