C.S.H.B. 2679 78(R)    BILL ANALYSIS


C.S.H.B. 2679
By: Hartnett
Judicial Affairs
Committee Report (Substituted)



BACKGROUND AND PURPOSE 

Under current law, a guardian is not allowed to voluntarily admit an adult
ward for inpatient mental health services.  Unfortunately, hospitals
generally refuse to allow wards to voluntarily admit themselves because
the wards may lack the capacity to do so.  Guardians in such cases face a
real dilemma.  They often must watch their wards refuse to take medication
or otherwise deteriorate but be unable to do anything about the situation
until it reaches the point they must call the sheriff or police.   

C.S.H.B. 2679 gives a guardian the authority to transport a ward to an
inpatient mental health facility for a preliminary examination, provides
for the ability of a guardian to consent to the administration of
psychoactive medication to an adult ward, and grants a guardian the
ability to secure the emergency detention of a ward under certain
circumstances.  

RULEMAKING AUTHORITY

It is the committee's opinion that this bill does not expressly grant any
additional rulemaking authority to a state officer, department, agency, or
institution. 

ANALYSIS

C.S.H.B. 2679 amends the Probate Code to provide that a guardian of the
person of a ward has the power to transport the ward to an inpatient
mental health facility for a preliminary examination under certain
conditions set forth in the Health and Safety Code.   

The bill provides that information regarding whether the guardian has
filed for emergency detention of the ward under the Health and Safety Code
may be included in the guardian's annual sworn affidavit to the court, and
that this information may include the number of times the guardian has
filed for emergency detention of the ward and the dates of the
applications.   

The bill provides that a guardian of a ward who is not a minor may, if the
ward is under a protective custody order as provided by the Health and
Safety Code, consent to the administration of psychoactive medication as
prescribed by the ward's treating physician regardless of the ward's
expressed preference regarding treatment with psychoactive medication.   

The bill also amends the Health and Safety Code regarding the emergency
detention of a ward by a guardian.  The bill provides that a guardian,
without the assistance of a peace officer, may transport the ward to an
inpatient mental health facility for a preliminary examination in
accordance with certain provisions of the Health and Safety Code if the
guardian has reason to believe and does believe that the ward is mentally
ill, and that because of that mental illness, there is a substantial risk
of serious harm to the ward or to others unless the ward is immediately
restrained.  This substantial risk may be demonstrated by the ward's
behavior or evidence of severe emotional distress and deterioration in the
ward's mental condition to the extent the ward cannot remain at liberty.   

The bill also provides that after transporting a ward to a facility as
provided above, the guardian shall immediately file an application for
detention with the facility.  This application must contain a statement
that the guardian has reason to believe and does believe that the ward
evidences mental illness; a statement that the guardian has reason to
believe and does believe that the ward evidences a substantial risk of
harm to the ward or others; a specific description of the risk of harm; a
statement  that the guardian has reason to believe and does believe that
the risk of harm is imminent unless the ward is immediately restrained; a
statement that the guardian's beliefs are derived from specific recent
behavior, overt acts, attempts, or threats that were observed by the
guardian; and a detailed description of the specific behavior, acts,
attempts or threats.  The guardian shall immediately provide written
notice of the filing of such an application to the court that granted the
guardianship.  
The bill also provides that if a patient is a ward who is 18 years of age
or older, the guardian of the person of the ward may consent to the
administration of psychoactive medication regardless of the ward's
expressed preference regarding treatment with psychoactive medication in
situations dealing with the administration of medication under court
ordered mental health services arising under Section 574.103 of the Health
and Safety Code  

The bill also adds persons "transported for emergency detention" to the
current statute's provision for the rights of persons apprehended or
detained.  

EFFECTIVE DATE

September 1, 2003.


COMPARISON OF ORIGINAL TO SUBSTITUTE

The substitute provides that if the patient is a ward "who is 18 years of
age or older," the guardian of th person of the ward may consent to the
administration of psychoactive medication.  The language in the original
referred to a ward "who is not a minor."   

The substitute also adds persons "transported for emergency detention" to
the current statute's provision for the rights of persons apprehended or
detained.