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.