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.