By Nelson S.B. No. 1409
77R1962 JJT-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to procedures for court-ordered assisted outpatient mental
1-3 health services.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Chapter 574, Health and Safety Code, is amended by
1-6 adding Subchapter H to read as follows:
1-7 SUBCHAPTER H. PROCEEDINGS FOR
1-8 ASSISTED OUTPATIENT MENTAL HEALTH SERVICES BY COURT ORDER
1-9 Sec. 574.151. FILING AND TRANSFER OF APPLICATION FOR
1-10 COURT-ORDERED ASSISTED OUTPATIENT MENTAL HEALTH SERVICES. (a) Any
1-11 of the following persons, if 18 years of age or older, may file a
1-12 sworn written application for court-ordered assisted outpatient
1-13 mental health services for a proposed patient:
1-14 (1) a person with whom the proposed patient resides;
1-15 (2) the proposed patient's parent, spouse, sibling, or
1-16 child;
1-17 (3) the hospital administrator of the mental hospital
1-18 in which the proposed patient is hospitalized when the application
1-19 is filed;
1-20 (4) the director of a public or charitable institution
1-21 or facility in which the proposed patient resides and from which
1-22 the proposed patient receives mental health services;
1-23 (5) a psychiatrist treating or supervising the
1-24 treatment of the proposed patient;
2-1 (6) a parole or community supervision and corrections
2-2 department officer assigned to supervise the proposed patient; or
2-3 (7) the administrator of a local health department,
2-4 authority, or district from which the proposed patient is receiving
2-5 any type of services.
2-6 (b) The application must be filed with the county clerk in
2-7 the county in which the proposed patient:
2-8 (1) resides;
2-9 (2) is found; or
2-10 (3) is receiving mental health services by court order
2-11 or under Subchapter A, Chapter 573.
2-12 (c) An application may be transferred to another county as
2-13 provided by Sections 574.001(c) and (d).
2-14 Sec. 574.152. CONTENTS OF APPLICATION. (a) An application
2-15 must state:
2-16 (1) that the applicant believes that the proposed
2-17 patient meets each of the criteria for court-ordered assisted
2-18 outpatient mental health services under Section 574.160;
2-19 (2) facts that support the applicant's belief that the
2-20 proposed patient meets each criterion;
2-21 (3) that the proposed patient is or is reasonably
2-22 believed to be in the county in which the application is filed; and
2-23 (4) generally the type of assisted outpatient mental
2-24 health services the applicant proposes to be ordered for the
2-25 proposed patient.
2-26 (b) An application must be accompanied by an affidavit of a
2-27 physician other than the applicant that:
3-1 (1) the physician:
3-2 (A) personally has examined the proposed patient
3-3 not more than 10 days before the date the application is filed;
3-4 (B) as a result of that examination, believes
3-5 the proposed patient meets the criteria for court-ordered assisted
3-6 outpatient mental health services under Section 574.160 and
3-7 recommends court-ordered assisted outpatient mental health services
3-8 for the proposed patient; and
3-9 (C) is willing and able to testify at the
3-10 hearing on the application; or
3-11 (2) the physician:
3-12 (A) not more than 10 days before the date the
3-13 application is filed, personally or through another person made
3-14 appropriate attempts, without success, to persuade the proposed
3-15 patient to undergo an examination by the physician;
3-16 (B) has reason to suspect that the proposed
3-17 patient meets the criteria for court-ordered assisted outpatient
3-18 mental health services under Section 574.160; and
3-19 (C) is willing and able to examine the proposed
3-20 patient and subsequently testify at the hearing on the application.
3-21 Sec. 574.153. RIGHTS OF PROPOSED PATIENT. The proposed
3-22 patient named in an application has the rights provided a patient
3-23 by Sections 574.105(1)-(6).
3-24 Sec. 574.154. NOTICE AND DISCLOSURE OF INFORMATION. (a)
3-25 Copies of the application and notice of the time and place of the
3-26 hearing shall be given to the proposed patient and the proposed
3-27 patient's attorney as provided by Section 574.006.
4-1 (b) On the request of the proposed patient's attorney, the
4-2 county or district attorney shall provide a statement that
4-3 includes:
4-4 (1) the provisions of this subchapter that will be
4-5 relied on at the hearing to establish that the proposed patient
4-6 requires court-ordered assisted outpatient mental health services;
4-7 (2) the reasons voluntary outpatient services are not
4-8 considered appropriate for the proposed patient;
4-9 (3) the name, address, and telephone number of each
4-10 witness who may testify at the hearing;
4-11 (4) a brief description of the reasons court-ordered
4-12 assisted outpatient mental health services are considered to be
4-13 required; and
4-14 (5) a list of any acts committed by the proposed
4-15 patient that the applicant will attempt to prove at the hearing.
4-16 (c) At a hearing under this subchapter, the judge may admit
4-17 evidence or testimony that relates to matters not disclosed under
4-18 Subsection (b) only if the admission would not deprive the proposed
4-19 patient of a fair opportunity to contest the evidence or testimony.
4-20 Sec. 574.155. JURISDICTION; MASTER. (a) A proceeding under
4-21 this subchapter must be held in a district court, a statutory or
4-22 constitutional county court, or a statutory probate court:
4-23 (1) that has the jurisdiction of a probate court in
4-24 mental illness matters; and
4-25 (2) in which the judge is licensed to practice law in
4-26 this state.
4-27 (b) If an order under this subchapter provides for the
5-1 provision of the services and assistance in a county other than the
5-2 county in which the order was issued, the issuing court shall
5-3 transfer the case to an appropriate court in the county in which
5-4 the services and assistance are provided. The court receiving the
5-5 case has exclusive continuing jurisdiction of the case and stands
5-6 in the place of the issuing court for any other proceeding under
5-7 this subchapter.
5-8 (c) A county court may appoint a master to preside over
5-9 proceedings under this subchapter as provided by Section 574.0085.
5-10 Sec. 574.156. PRELIMINARY DETERMINATION OF AVAILABILITY OF
5-11 APPROPRIATE SERVICES. (a) The facility or provider in the county
5-12 designated by the commissioner under Section 574.012 shall provide
5-13 the court, on the court's request, a statement of whether assisted
5-14 outpatient mental health services of the type proposed for the
5-15 proposed patient are available.
5-16 (b) Before the hearing on the application, the court shall
5-17 hold a hearing on the matter of the availability of the proposed
5-18 services. The court may consider a statement provided under
5-19 Subsection (a) and any other evidence presented. Instead of a
5-20 hearing under this section, the court may find, based on
5-21 stipulations of the parties, that the services are or are not
5-22 reasonably available. If the court finds that the proposed services
5-23 are not reasonably available to the proposed patient, the court
5-24 may:
5-25 (1) dismiss the application; or
5-26 (2) treat the application as an application for
5-27 appropriate inpatient or outpatient mental health services under
6-1 this chapter.
6-2 (c) If the court treats the application as an application
6-3 for inpatient or outpatient mental health services under Subsection
6-4 (b)(2), the court shall provide a reasonable opportunity for the
6-5 application to be amended as appropriate.
6-6 Sec. 574.157. HEARING. (a) The court shall set a date for a
6-7 hearing on the application to be held not later than the third day
6-8 after the date the application is received, excluding a Saturday,
6-9 Sunday, or holiday. A court may postpone the hearing as provided by
6-10 Section 574.005(c).
6-11 (b) The court may adjourn the hearing only for good cause
6-12 shown and after consideration of the need for further examination
6-13 of the proposed patient by a physician and the potential need to
6-14 provide services to the proposed patient expeditiously.
6-15 (c) At the hearing, the court may examine the proposed
6-16 patient, if present, in or out of court.
6-17 (d) The court shall provide the proposed patient the
6-18 opportunity to present evidence, call witnesses, and cross-examine
6-19 witnesses.
6-20 (e) The hearing is not limited to the matters stated in the
6-21 application.
6-22 (f) The hearing may be held in the absence of the proposed
6-23 patient if appropriate attempts to have the proposed patient
6-24 voluntarily attend the hearing have failed. The court shall enter
6-25 into the record the factual basis for conducting the hearing in the
6-26 proposed patient's absence.
6-27 Sec. 574.158. CERTIFICATE AND TESTIMONY OF EXAMINING
7-1 PHYSICIAN; ORDER FOR EXAMINATION. (a) At the hearing, the court
7-2 shall consider a physician's certificate of examination of the
7-3 proposed patient and the physician's testimony regarding the
7-4 examination. The certificate must include the time, date, and
7-5 circumstances of the examination and summarize the facts and
7-6 opinions that support the allegation that the proposed patient
7-7 meets the criteria for court-ordered assisted outpatient mental
7-8 health services under Section 574.160. The court may not impose
7-9 court-ordered assisted outpatient mental health services for the
7-10 proposed patient without the physician's certificate and testimony
7-11 in the record.
7-12 (b) If the application is accompanied by an affidavit
7-13 described by Section 574.152(b)(1), and the application meets the
7-14 requirements of this section, a separate certificate of examination
7-15 is not required.
7-16 (c) If the application is accompanied by an affidavit
7-17 described by Section 574.152(b)(2), the court may request the
7-18 proposed patient to submit to an examination by a physician
7-19 appointed by the court. If the proposed patient refuses to consent
7-20 to the examination and the court finds there is reasonable cause to
7-21 believe that the allegations in the application and affidavit are
7-22 true, the court may order a peace officer to apprehend the proposed
7-23 patient and to transport the proposed patient to a designated
7-24 facility for an examination by a physician. The proposed patient
7-25 may be examined under the order by the physician who gave the
7-26 affidavit if the physician has privileges to do so at that
7-27 facility. If the examination is performed by another physician at
8-1 the facility, the examining physician shall consult with the
8-2 physician who gave the affidavit regarding the issues of whether
8-3 the allegations in the application are true and whether the
8-4 proposed patient meets the criteria for court-ordered assisted
8-5 outpatient mental health services under Section 574.160.
8-6 (d) The physician's testimony must include:
8-7 (1) the facts and opinions that support the allegation
8-8 that the proposed patient meets the criteria for court-ordered
8-9 assisted outpatient mental health services;
8-10 (2) the recommended outpatient services and assistance
8-11 to be provided; and
8-12 (3) the rationale for providing the services and
8-13 assistance.
8-14 (e) If the recommended services include medication, the
8-15 physician by testimony shall include:
8-16 (1) a description of the types and classes of
8-17 medications the physician recommends, including the beneficial and
8-18 detrimental physical and mental effects of each medication and
8-19 combination of medications; and
8-20 (2) a recommendation regarding whether the medications
8-21 should be administered by the patient or by other persons.
8-22 Sec. 574.159. TREATMENT PLAN. (a) The court may order a
8-23 person to receive court-ordered assisted outpatient mental health
8-24 services only in accordance with a written treatment plan as
8-25 provided by this section. The treatment plan's recommendations for
8-26 services and assistance for the proposed patient must conform to
8-27 the evidence presented at the hearing regarding the proposed
9-1 patient's mental illness and needs.
9-2 (b) The proposed treatment plan must be prepared by a
9-3 physician who has examined the proposed patient and has provided
9-4 the following persons a reasonable opportunity to participate in
9-5 its preparation:
9-6 (1) the proposed patient;
9-7 (2) any physician treating the proposed patient when
9-8 the application is filed; and
9-9 (3) on request of the proposed patient, any individual
9-10 significant to the proposed patient, including a relative, close
9-11 friend, or other individual concerned with the proposed patient's
9-12 welfare.
9-13 (c) The treatment plan must provide for case management
9-14 services to coordinate the other services and assistance under the
9-15 plan. The plan may provide for:
9-16 (1) medication;
9-17 (2) periodic or random blood or urine analysis to
9-18 determine the patient's compliance with prescribed medication
9-19 regimens;
9-20 (3) individual or group therapy or counseling;
9-21 (4) day or partial day program activities;
9-22 (5) supervision of the patient's living arrangements;
9-23 (6) substance abuse counseling or treatment; or
9-24 (7) any other services or assistance prescribed to:
9-25 (A) treat the patient's mental illness;
9-26 (B) assist the patient in living safely in the
9-27 community; or
10-1 (C) prevent a relapse or deterioration that
10-2 reasonably may result in behavior that presents a danger to the
10-3 patient or to others.
10-4 (d) If the treatment plan includes medication, the plan
10-5 must:
10-6 (1) state the person who is to administer the
10-7 medication to the patient; and
10-8 (2) specify the types and dosage ranges of each
10-9 medication most likely to provide the patient the maximum benefit.
10-10 (e) A treatment plan that provides for substance abuse
10-11 counseling or treatment may also include periodic or random testing
10-12 of the patient for alcohol or controlled substances only if the
10-13 court finds, based on the physician's clinical basis for
10-14 recommending the testing routine, that:
10-15 (1) the patient has a history of substance abuse that
10-16 is clinically related to the patient's mental illness; and
10-17 (2) the testing routine is necessary to prevent a
10-18 relapse or deterioration that would likely result in behavior that
10-19 presents a danger to the patient or to others.
10-20 (f) If a testing routine is ordered under Subsection (e),
10-21 the order shall provide that a physician:
10-22 (1) shall review the need for the routine at least
10-23 every six months; and
10-24 (2) may terminate the routine without involving the
10-25 court.
10-26 (g) Before the court orders a proposed patient to receive
10-27 court-ordered assisted outpatient mental health services, the court
11-1 shall require the physician who prepared the proposed treatment
11-2 plan to testify and explain the plan to the court.
11-3 (h) If the court finds by clear and convincing evidence,
11-4 after hearing all evidence at the hearing, that the proposed
11-5 patient meets the criteria for court-ordered assisted outpatient
11-6 mental health services under Section 574.160, but the court has not
11-7 been presented with a written treatment plan under Subsections
11-8 (a)-(f), the court shall order that a person identified as an
11-9 available provider of services at the preliminary hearing under
11-10 Section 574.156 provide the court with a proposed written treatment
11-11 plan as provided by this section not later than the third day after
11-12 the date the order is issued, excluding Saturday, Sunday, and
11-13 holidays. The court may order the services after the court
11-14 receives the proposed treatment plan and hears the supporting
11-15 testimony.
11-16 Sec. 574.160. DISPOSITION; ORDER FOR SERVICES. (a) If the
11-17 court finds, after hearing all evidence, that the proposed patient
11-18 does not meet the criteria provided by Subsection (b), the court
11-19 shall dismiss the application.
11-20 (b) The court may order the proposed patient to receive
11-21 court-ordered assisted outpatient mental health services if, after
11-22 hearing all evidence, the court by clear and convincing evidence
11-23 finds that the proposed patient:
11-24 (1) is 18 years of age or older;
11-25 (2) has a mental illness;
11-26 (3) as a result of the mental illness, based on a
11-27 clinical determination, is unlikely to live safely in the community
12-1 without supervision;
12-2 (4) has a history of not complying with treatment for
12-3 the mental illness that has:
12-4 (A) two times or more in the 36 months preceding
12-5 the application, not including a period immediately before the
12-6 application is filed during which the proposed patient was
12-7 hospitalized or incarcerated, been a significant factor in the
12-8 hospitalization or incarceration of the proposed patient; or
12-9 (B) in the 48 months preceding the application,
12-10 not including a period immediately before the application is filed
12-11 during which the proposed patient was hospitalized or incarcerated,
12-12 resulted in seriously violent behavior directed at the proposed
12-13 patient's self or others;
12-14 (5) as a result of the mental illness is unlikely to
12-15 participate voluntarily in the services and assistance recommended
12-16 in the treatment plan;
12-17 (6) is in need of court-ordered assisted outpatient
12-18 mental health services to prevent a relapse or deterioration that
12-19 would be likely to result in serious harm to the proposed patient
12-20 or to others; and
12-21 (7) is likely to benefit from the services and
12-22 assistance recommended in the treatment plan.
12-23 (c) The court shall incorporate the written treatment plan
12-24 into its order, including any modifications to the proposed plan
12-25 filed under Section 574.159 as the court determines. In
12-26 determining the contents of the order and the treatment plan, the
12-27 court shall consider a declaration for mental health treatment
13-1 under Chapter 137, Civil Practice and Remedies Code, executed by
13-2 the proposed patient or a substantially similar directive executed
13-3 in another state.
13-4 (d) The order may not authorize the administration of
13-5 psychoactive medication without the consent of the patient unless
13-6 the court makes the findings provided by Sections 574.106(a)(2) and
13-7 (3) by clear and convincing evidence, after hearing all evidence
13-8 and considering the factors provided by Section 574.106(b). This
13-9 subsection applies also to a modification of the order under
13-10 Section 574.161 and to an extension of the order under Section
13-11 574.162.
13-12 (e) The order must designate a physician as the physician
13-13 responsible for the patient's assisted outpatient mental health
13-14 services for purposes of Sections 574.161, 574.162, and 574.163.
13-15 (f) The order expires on the earlier of:
13-16 (1) the date the court specifies; or
13-17 (2) the 180th day after the date the order is issued.
13-18 Sec. 574.161. MODIFICATION OF ORDER. (a) The physician
13-19 responsible for a patient's court-ordered assisted outpatient
13-20 mental health services shall apply to the issuing court for
13-21 approval before a category of service or assistance in the
13-22 treatment plan for the patient is added or deleted unless the
13-23 change is made as expressly provided for in the order. A change in
13-24 the administration of medications to the patient with the patient's
13-25 consent does not require court approval.
13-26 (b) The hearing and notice on the application are governed
13-27 by Sections 574.062(b)-(e).
14-1 (c) The court may modify the order only if the court
14-2 determines after the hearing that the patient meets the criteria
14-3 provided by Section 574.160, except that the court may consider the
14-4 patient's behavior during periods of hospitalization or
14-5 incarceration immediately preceding the application.
14-6 Sec. 574.162. EXTENSION OF ORDER. (a) If the physician
14-7 responsible for a patient's court-ordered assisted outpatient
14-8 mental health services determines that the patient requires further
14-9 court-ordered assisted services, the physician shall apply to the
14-10 issuing court for an order to extend the order and treatment plan.
14-11 (b) The hearing and notice on the application are governed
14-12 by Sections 574.062(b)-(e).
14-13 (c) The court may extend the order for assisted outpatient
14-14 mental health services for a period not to exceed one year only if
14-15 the court determines after the hearing that the patient meets the
14-16 criteria provided by Section 574.160, except that the court may
14-17 consider the patient's behavior during periods of hospitalization
14-18 or incarceration immediately preceding the application.
14-19 (d) The court may consider proposed modifications of the
14-20 order in the same proceeding as a proposed extension of the order.
14-21 Sec. 574.163. FAILURE TO COMPLY WITH ORDER. (a) The
14-22 physician responsible for a patient's court-ordered assisted
14-23 outpatient mental health services may request a judge or magistrate
14-24 to issue a protective custody order for a patient who is not
14-25 complying with an order issued under Section 574.160. The judge or
14-26 magistrate shall issue an order directing a peace officer or other
14-27 designated person to take the patient into protective custody and
15-1 transport the patient immediately to a facility provided in the
15-2 order if the judge or magistrate finds that in the clinical
15-3 judgment of a physician:
15-4 (1) the patient has failed or refused to comply with
15-5 the treatment plan as ordered;
15-6 (2) adequate efforts have been made to persuade the
15-7 patient to comply with the treatment plan voluntarily; and
15-8 (3) the patient meets the criteria for court-ordered
15-9 inpatient mental health services under Section 574.034(a).
15-10 (b) The designated facility shall detain the patient until a
15-11 hearing is held under Section 574.025.
15-12 SECTION 2. This Act takes effect September 1, 2001.