1-1 By: Harris S.B. No. 1361
1-2 (In the Senate - Filed March 11, 1999; March 15, 1999, read
1-3 first time and referred to Committee on Health Services;
1-4 April 7, 1999, reported favorably by the following vote: Yeas 5,
1-5 Nays 0; April 7, 1999, sent to printer.)
1-6 A BILL TO BE ENTITLED
1-7 AN ACT
1-8 relating to the use of a declaration for mental health treatment.
1-9 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-10 SECTION 1. Subdivisions (4) through (7), Section 137.001,
1-11 Civil Practice and Remedies Code, are amended to read as follows:
1-12 (4) "Emergency" means a situation in which it is
1-13 immediately necessary to treat a patient to prevent:
1-14 (A) probable imminent death or serious bodily
1-15 injury to the patient because the patient:
1-16 (i) overtly or continually is threatening
1-17 or attempting to commit suicide or serious bodily injury to the
1-18 patient; or
1-19 (ii) is behaving in a manner that
1-20 indicates that the patient is unable to satisfy the patient's need
1-21 for nourishment, essential medical care, or self-protection; or
1-22 (B) imminent physical or emotional harm to
1-23 another because of threats, attempts, or other acts of the patient.
1-24 (5) "Health care provider" means an individual or
1-25 facility licensed, certified, or otherwise authorized to administer
1-26 health care or treatment, for profit or otherwise, in the ordinary
1-27 course of business or professional practice and includes a
1-28 physician or other health care provider, a residential care
1-29 provider, or an inpatient mental health facility as defined by
1-30 Section 571.003, Health and Safety Code.
1-31 (6) [(5)] "Incapacitated" means that, in the opinion
1-32 of the court in a guardianship proceeding under Chapter XIII, Texas
1-33 Probate Code, or in a medication hearing under Section 574.106,
1-34 Health and Safety Code, a person lacks the ability to understand
1-35 the nature and consequences of a proposed treatment, including the
1-36 benefits, risks, and alternatives to the proposed treatment, and
1-37 lacks the ability to make mental health treatment decisions because
1-38 of impairment.
1-39 (7) [(6)] "Mental health treatment" means
1-40 electroconvulsive or other convulsive treatment, treatment of
1-41 mental illness with psychoactive medication as defined by Section
1-42 574.101, Health and Safety Code, or emergency mental health
1-43 treatment.
1-44 (8) [(7)] "Principal" means a person who has executed
1-45 a declaration for mental health treatment.
1-46 SECTION 2. Section 137.007, Civil Practice and Remedies
1-47 Code, is amended to read as follows:
1-48 Sec. 137.007. USE AND EFFECT OF DECLARATION FOR MENTAL
1-49 HEALTH TREATMENT. (a) On being presented with a declaration for
1-50 mental health treatment, a physician or other health care provider
1-51 shall make the declaration a part of the principal's medical
1-52 record. When acting in accordance with a declaration for mental
1-53 health treatment, a physician or other health care provider shall
1-54 comply with the declaration to the fullest extent possible.
1-55 (b) If a [the] physician or other provider is unwilling at
1-56 any time to comply with a [the] declaration for mental health
1-57 treatment, the physician or provider may withdraw from providing
1-58 treatment consistent with the exercise of independent medical
1-59 judgment and must promptly:
1-60 (1) make a reasonable effort to transfer care for the
1-61 principal to a physician or provider who is willing to comply with
1-62 the declaration;
1-63 (2) notify the principal, or principal's guardian, if
1-64 appropriate, of the decision to withdraw [that action]; and
2-1 (3) record in the principal's medical record [(2)
2-2 document] the notification and, if applicable, the name of the
2-3 physician or provider to whom the principal is transferred [in the
2-4 principal's medical record].
2-5 SECTION 3. Section 137.008, Civil Practice and Remedies
2-6 Code, is amended to read as follows:
2-7 Sec. 137.008. DISREGARD OF DECLARATION FOR MENTAL HEALTH
2-8 TREATMENT. (a) A physician or other health care provider may
2-9 subject the principal to mental health treatment in a manner
2-10 contrary to the principal's wishes as expressed in a declaration
2-11 for mental health treatment only:
2-12 (1) if the principal is under an order for temporary
2-13 or extended mental health services under Section 574.034 or
2-14 574.035, Health and Safety Code, and treatment is authorized in
2-15 compliance with Section 574.106, Health and Safety Code; or
2-16 (2) in case of an emergency when the principal's
2-17 instructions have not been effective in reducing the severity of
2-18 the behavior that has caused [avoiding] the emergency.
2-19 (b) [For purposes of Subsection (a), "emergency" means a
2-20 situation in which it is immediately necessary to treat a patient
2-21 to prevent:]
2-22 [(1) probable imminent death or serious bodily injury
2-23 to the patient because the patient:]
2-24 [(A) overtly or continually is threatening or
2-25 attempting to commit suicide or serious bodily injury to the
2-26 patient; or]
2-27 [(B) is behaving in a manner that indicates that
2-28 the patient is unable to satisfy the patient's need for
2-29 nourishment, essential medical care, or self-protection; or]
2-30 [(2) imminent physical or emotional harm to another
2-31 because of threats, attempts, or other acts of the patient.]
2-32 [(c)] A declaration for mental health treatment does not
2-33 limit any authority provided by Chapter 573 or 574, Health and
2-34 Safety Code:
2-35 (1) to take a person into custody; or
2-36 (2) to admit or retain a person in a mental health
2-37 treatment facility.
2-38 (c) [(d)] This section does not apply to the use of
2-39 electroconvulsive treatment or other convulsive treatment.
2-40 SECTION 4. Subsection (a), Section 137.010, Civil Practice
2-41 and Remedies Code, is amended to read as follows:
2-42 (a) A declaration for mental health treatment is revoked
2-43 when a principal who is not incapacitated [by]:
2-44 (1) notifies [notification at any time by a principal,
2-45 when competent, to] a licensed or certified health or residential
2-46 care provider of the revocation;
2-47 (2) acts in a manner [any act of the principal] that
2-48 demonstrates a specific intent to revoke the declaration; or
2-49 (3) executes [the principal executing] a later
2-50 declaration for mental health treatment.
2-51 SECTION 5. The importance of this legislation and the
2-52 crowded condition of the calendars in both houses create an
2-53 emergency and an imperative public necessity that the
2-54 constitutional rule requiring bills to be read on three several
2-55 days in each house be suspended, and this rule is hereby suspended,
2-56 and that this Act take effect and be in force from and after its
2-57 passage, and it is so enacted.
2-58 * * * * *