79R3339 UM-F
By: Naishtat H.B. No. 3079
A BILL TO BE ENTITLED
AN ACT
relating to the administration of psychoactive medication to
certain patients.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 574.102, Health and Safety Code, is
amended to read as follows:
Sec. 574.102. APPLICATION OF SUBCHAPTER. This subchapter
applies [only] to the application of medication to a patient
subject to an order for inpatient mental health services under this
chapter or other law [Section 574.034 or 574.035].
SECTION 2. Sections 574.104(a) and (b), Health and Safety
Code, are amended to read as follows:
(a) A physician who is treating a patient may, on behalf of
the state, file an application in a probate court or a court with
probate jurisdiction for an order to authorize the administration
of a psychoactive medication regardless of the patient's refusal
if:
(1) the physician believes that the patient lacks the
capacity to make a decision regarding the administration of the
psychoactive medication;
(2) the physician determines that the medication is
the proper course of treatment for the patient;
(3) the patient is under an order for inpatient
[temporary or extended] mental health services under this chapter
or other law [Section 574.034 or 574.035] or an application for
court-ordered mental health services under Section 574.034 or
574.035 has been filed for the patient; and
(4) the patient, verbally or by other indication,
refuses to take the medication voluntarily.
(b) An application filed under this section must state:
(1) that the physician believes that the patient lacks
the capacity to make a decision regarding administration of the
psychoactive medication and the reasons for that belief;
(2) each medication the physician wants the court to
compel the patient to take;
(3) whether an application for court-ordered mental
health services under Section 574.034 or 574.035 has been filed;
(4) whether a court [or the current] order for
inpatient mental health services for the patient has been [was]
issued and, if so, under what authority it was issued [under Section
574.034 or under Section 574.035]; [and]
(5) [(4)] the physician's diagnosis of the patient;
and
(6) the proposed method for administering the
medication and, if the method is not customary, an explanation
justifying the departure from the customary methods.
SECTION 3. The heading to Section 574.106, Health and
Safety Code, is amended to read as follows:
Sec. 574.106. HEARING [ON PATIENT'S CAPACITY] AND ORDER
AUTHORIZING PSYCHOACTIVE MEDICATION.
SECTION 4. Section 574.106, Health and Safety Code, is
amended by amending Subsections (a) and (b) and adding Subsections
(a-1) and (k) to read as follows:
(a) The court may issue an order authorizing the
administration of one or more classes of psychoactive medication to
a patient who:
(1) is under a court order to receive inpatient mental
health services; or
(2) is in custody awaiting trial in a criminal
proceeding and was ordered to receive inpatient mental health
services in the six months preceding a hearing under this section.
(a-1) The court may issue an order under this section only
if the court finds by clear and convincing evidence after the
hearing:
(1) that[:
[(1) the patient is under an order for temporary or
extended mental health services under Section 574.034 or 574.035;
[(2)] the patient lacks the capacity to make a
decision regarding the administration of the proposed
medication[;] and
[(3)] treatment with the proposed medication is in the
best interest of the patient; or
(2) if the patient was ordered to receive inpatient
mental health services by a criminal court with jurisdiction over
the patient that:
(A) the patient presents a danger to the patient
or others in the inpatient mental health facility in which the
patient is being treated as a result of a mental disorder or mental
defect as determined under Section 574.1065; and
(B) treatment with the proposed medication is in
the best interest of the patient.
(b) In making the finding that treatment with the proposed
medication is in the best interest of the patient [its findings],
the court shall consider:
(1) the patient's expressed preferences regarding
treatment with psychoactive medication;
(2) the patient's religious beliefs;
(3) the risks and benefits, from the perspective of
the patient, of taking psychoactive medication;
(4) the consequences to the patient if the
psychoactive medication is not administered;
(5) the prognosis for the patient if the patient is
treated with psychoactive medication; [and]
(6) alternative, less intrusive treatments that are
likely to produce the same results as [alternatives to] treatment
with psychoactive medication; and
(7) less intrusive treatments likely to secure the
patient's agreement to take the psychoactive medication.
(k) This section does not apply to a patient who receives
services under an order of protective custody under Section
574.021.
SECTION 5. Subchapter G, Chapter 574, Health and Safety
Code, is amended by adding Section 574.1065 to read as follows:
Sec. 574.1065. FINDING THAT PATIENT PRESENTS A DANGER. In
making a finding under Section 574.106(a)(2) that the patient
presents a danger to the patient or others in the inpatient mental
health facility in which the patient is being treated as a result of
a mental disorder or mental defect the court shall consider:
(1) an assessment of the patient's present mental
condition;
(2) whether the patient has inflicted, attempted to
inflict, or made a serious threat of inflicting substantial
physical harm to the patient's self or to another while in the
facility; and
(3) whether the patient, in the six months preceding
the date the patient was placed in the facility, has inflicted,
attempted to inflict, or made a serious threat of inflicting
substantial physical harm to another that resulted in the patient
being placed in the facility.
SECTION 6. Section 574.110, Health and Safety Code, is
amended to read as follows:
Sec. 574.110. EXPIRATION OF ORDER. (a) Except as provided
by Subsection (b), an [An] order issued under Section 574.106
expires on the expiration or termination date of the order for
temporary or extended mental health services in effect when the
order for psychoactive medication is issued.
(b) An order issued under Section 574.106 for a patient
awaiting trial in a criminal proceeding expires on the date the
defendant is acquitted, is convicted, or enters a plea of guilty or
the date on which charges in the case are dismissed. An order
continued under this subsection shall be reviewed by the issuing
court every six months.
SECTION 7. Section 576.025(a), Health and Safety Code, is
amended to read as follows:
(a) A person may not administer a psychoactive medication to
a patient receiving voluntary or involuntary mental health services
who refuses the administration unless:
(1) the patient is having a medication-related
emergency;
(2) the patient is younger than 16 years of age and the
patient's parent, managing conservator, or guardian consents to the
administration on behalf of the patient;
(3) the refusing patient's representative authorized
by law to consent on behalf of the patient has consented to the
administration;
(4) the administration of the medication regardless of
the patient's refusal is authorized by an order issued under
Section 574.106; or
(5) the administration of the medication regardless of
the patient's refusal is [patient is receiving court-ordered mental
health services] authorized by an order issued under Article
46B.086[:
[(A) Chapter 46B or Article 46.03], Code of
Criminal Procedure[; or
[(B) Chapter 55, Family Code].
SECTION 8. Articles 46B.086(a), (b), and (d), Code of
Criminal Procedure, are amended to read as follows:
(a) This article applies only to a defendant:
(1) who is [after having been] determined under this
chapter to be incompetent to stand trial [is subsequently
determined to be competent to stand trial]; [and]
(2) for whom a continuity of care plan has been
prepared by a facility that requires the defendant to take
psychoactive medications; and
(3) who, after a hearing held under Section 574.106,
Health and Safety Code, has been found not to meet the criteria
prescribed by Sections 574.106(a) and (a-1), Health and Safety
Code, for court-ordered administration of psychoactive
medications.
(b) If a defendant described by Subsection (a) refuses to
take psychoactive medications as required by the defendant's
continuity of care plan, the director of the correctional facility
shall notify the court in which the criminal proceedings are
pending of that fact not later than the end of the next business day
following the refusal. The court shall promptly notify the
attorney representing the state and the attorney representing the
defendant of the defendant's refusal. The attorney representing
the state may file a written motion to compel medication. The
motion to compel medication must be filed not later than the 15th
day after the date a judge issues an order stating that the
defendant does not meet the criteria for court-ordered
administration of psychoactive medications under Section 574.106,
Health and Safety Code. The court, after notice and after a hearing
[that is] held not later than the fifth day after the defendant is
returned to the committing court [as soon as practicable], may
authorize the director of a correctional facility to have the
medication administered to the defendant, by reasonable force if
necessary.
(d) The court may issue an order under this article if the
court finds by clear and convincing evidence that:
(1) the prescribed medication is medically
appropriate, is in the best medical interest of the defendant, and
does not present side effects that cause harm to the defendant that
is greater than the medical benefit to the defendant;
(2) the state has a clear and compelling interest in
the defendant obtaining and maintaining competency to stand trial;
(3) no other less invasive means of obtaining and
maintaining the defendant's competency exists; and
(4) the prescribed medication will not unduly
prejudice the defendant's rights or use of defensive theories at
trial.
SECTION 9. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2005.