By: Shapleigh  S.B. No. 1520
         (In the Senate - Filed March 9, 2009; March 17, 2009, read
  first time and referred to Committee on Health and Human Services;
  April 14, 2009, reported favorably by the following vote:  Yeas 9,
  Nays 0; April 14, 2009, sent to printer.)
 
 
A BILL TO BE ENTITLED
 
AN ACT
 
  relating to the protection and care of individuals with mental
  retardation residing in certain residential care facilities.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Section 592.038, Health and Safety Code, is
  amended by adding Subsection (d) to read as follows:
         (d)  Each client has the right to refuse psychoactive
  medication, as provided by Subchapter E.
         SECTION 2.  Subsection (b), Section 592.054, Health and
  Safety Code, is amended to read as follows:
         (b)  Notwithstanding Subsection (a), consent is required
  for:
               (1)  all surgical procedures; and
               (2)  as provided by Section 592.082, the administration
  of psychoactive medications.
         SECTION 3.  Chapter 592, Health and Safety Code, is amended
  by adding Subchapters E and F to read as follows:
  SUBCHAPTER E.  ADMINISTRATION OF PSYCHOACTIVE MEDICATIONS
         Sec. 592.081.  DEFINITIONS.  In this subchapter:
               (1)  "Capacity" means a client's ability to:
                     (A)  understand the nature and consequences of a
  proposed treatment, including the benefits, risks, and
  alternatives to the proposed treatment; and
                     (B)  make a decision whether to undergo the
  proposed treatment.
               (2)  "Medication-related emergency" means a situation
  in which it is immediately necessary to administer medication to a
  client to prevent:
                     (A)  imminent probable death or substantial
  bodily harm to the client because the client:
                           (i)  overtly or continually is threatening
  or attempting to commit suicide or serious bodily harm; or
                           (ii)  is behaving in a manner that indicates
  that the client is unable to satisfy the client's need for
  nourishment, essential medical care, or self-protection; or
                     (B)  imminent physical or emotional harm to
  another because of threats, attempts, or other acts the client
  overtly or continually makes or commits.
               (3)  "Psychoactive medication" means a medication
  prescribed for the treatment of symptoms of psychosis or other
  severe mental or emotional disorders and that is used to exercise an
  effect on the central nervous system to influence and modify
  behavior, cognition, or affective state when treating the symptoms
  of mental illness.  "Psychoactive medication" includes the
  following categories when used as described in this subdivision:
                     (A)  antipsychotics or neuroleptics;
                     (B)  antidepressants;
                     (C)  agents for control of mania or depression;
                     (D)  antianxiety agents;
                     (E)  sedatives, hypnotics, or other
  sleep-promoting drugs; and
                     (F)  psychomotor stimulants.
         Sec. 592.082.  ADMINISTRATION OF PSYCHOACTIVE MEDICATION.  
  (a)  A person may not administer a psychoactive medication to a
  client receiving voluntary or involuntary residential care
  services who refuses the administration unless:
               (1)  the client is having a medication-related
  emergency;
               (2)  the refusing client's representative authorized by
  law to consent on behalf of the client has consented to the
  administration;
               (3)  the administration of the medication regardless of
  the client's refusal is authorized by an order issued under Section
  592.086; or
               (4)  the administration of the medication regardless of
  the client's refusal is authorized by an order issued under Article
  46B.086, Code of Criminal Procedure.
         (b)  Consent to the administration of psychoactive
  medication given by a client or by a person authorized by law to
  consent on behalf of the client is valid only if:
               (1)  the consent is given voluntarily and without
  coercive or undue influence;
               (2)  the treating physician or a person designated by
  the physician provides the following information, in a standard
  format approved by the department, to the client and, if
  applicable, to the client's representative authorized by law to
  consent on behalf of the client:
                     (A)  the specific condition to be treated;
                     (B)  the beneficial effects on that condition
  expected from the medication;
                     (C)  the probable health care consequences of not
  consenting to the medication;
                     (D)  the probable clinically significant side
  effects and risks associated with the medication;
                     (E)  the generally accepted alternatives to the
  medication, if any, and why the physician recommends that they be
  rejected; and
                     (F)  the proposed course of the medication;
               (3)  the client and, if appropriate, the client's
  representative authorized by law to consent on behalf of the client
  are informed in writing that consent may be revoked; and
               (4)  the consent is evidenced in the client's clinical
  record by a signed form prescribed by the facility or by a statement
  of the treating physician or a person designated by the physician
  that documents that consent was given by the appropriate person and
  the circumstances under which the consent was obtained.
         (c)  If the treating physician designates another person to
  provide the information under Subsection (b), then, not later than
  two working days after that person provides the information,
  excluding weekends and legal holidays, the physician shall meet
  with the client, and, if appropriate, the client's representative
  who provided the consent, to review the information and answer any
  questions.
         (d)  A client's refusal or attempt to refuse to receive
  psychoactive medication, whether given verbally or by other
  indications or means, shall be documented in the client's clinical
  record.
         (e)  In prescribing psychoactive medication, a treating
  physician shall:
               (1)  prescribe, consistent with clinically appropriate
  medical care, the medication that has the fewest side effects or the
  least potential for adverse side effects, unless the class of
  medication has been demonstrated or justified not to be effective
  clinically; and
               (2)  administer the smallest therapeutically
  acceptable dosages of medication for the client's condition.
         (f)  If a physician issues an order to administer
  psychoactive medication to a client without the client's consent
  because the client is having a medication-related emergency:
               (1)  the physician shall document in the client's
  clinical record in specific medical or behavioral terms the
  necessity of the order and that the physician has evaluated but
  rejected other generally accepted, less intrusive forms of
  treatment, if any; and
               (2)  treatment of the client with the psychoactive
  medication shall be provided in the manner, consistent with
  clinically appropriate medical care, least restrictive of the
  client's personal liberty.
         Sec. 592.083. ADMINISTRATION OF MEDICATION TO CLIENT
  COMMITTED TO RESIDENTIAL CARE FACILITY. (a)  In this section,
  "ward" has the meaning assigned by Section 601, Texas Probate Code.
         (b)  A person may not administer a psychoactive medication to
  a client who refuses to take the medication voluntarily unless:
               (1)  the client is having a medication-related
  emergency;
               (2)  the client is under an order issued under Section
  592.086 authorizing the administration of the medication
  regardless of the client's refusal; or
               (3)  the client is a ward who is 18 years of age or older
  and the guardian of the person of the ward consents to the
  administration of psychoactive medication regardless of the ward's
  expressed preferences regarding treatment with psychoactive
  medication.
         Sec. 592.084.  PHYSICIAN'S APPLICATION FOR ORDER TO
  AUTHORIZE PSYCHOACTIVE MEDICATION; DATE OF HEARING. (a) A
  physician who is treating a client may file an application in a
  probate court or a court with probate jurisdiction on behalf of the
  state for an order to authorize the administration of a
  psychoactive medication regardless of the client's refusal if:
               (1)  the physician believes that the client 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 client; and
               (3)  the client has been committed to a residential
  care facility under Subchapter C, Chapter 593, or other law or an
  application for commitment to a residential care facility under
  Subchapter C, Chapter 593, has been filed for the client.
         (b)  An application filed under this section must state:
               (1)  that the physician believes that the client 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 client to take;
               (3)  whether an application for commitment to a
  residential care facility under Subchapter C, Chapter 593, has been
  filed;
               (4)  whether an order committing the client to a
  residential care facility has been issued and, if so, under what
  authority it was issued;
               (5)  the physician's diagnosis of the client; 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.
         (c)  An application filed under this section must be filed
  separately from an application for commitment to a residential care
  facility.
         (d)  The hearing on the application may be held on the same
  date as a hearing on an application for commitment to a residential
  care facility under Subchapter C, Chapter 593, but the hearing must
  be held not later than 30 days after the filing of the application
  for the order to authorize psychoactive medication.  If the hearing
  is not held on the same date as the application for commitment to a
  residential care facility under Subchapter C, Chapter 593, and the
  client is transferred to a residential care facility in another
  county, the court may transfer the application for an order to
  authorize psychoactive medication to the county where the client
  has been transferred.
         (e)  Subject to the requirement in Subsection (d) that the
  hearing shall be held not later than 30 days after the filing of the
  application, the court may grant one continuance on a party's
  motion and for good cause shown.  The court may grant more than one
  continuance only with the agreement of the parties.
         Sec. 592.085.  RIGHTS OF CLIENT. A client for whom an
  application for an order to authorize the administration of a
  psychoactive medication is filed is entitled:
               (1)  to be represented by a court-appointed attorney
  who is knowledgeable about issues to be adjudicated at the hearing;
               (2)  to meet with that attorney as soon as is
  practicable to prepare for the hearing and to discuss any of the
  client's questions or concerns;
               (3)  to receive, immediately after the time of the
  hearing is set, a copy of the application and written notice of the
  time, place, and date of the hearing;
               (4)  to be informed, at the time personal notice of the
  hearing is given, of the client's right to a hearing and right to
  the assistance of an attorney to prepare for the hearing and to
  answer any questions or concerns;
               (5)  to be present at the hearing;
               (6)  to request from the court an independent expert;
  and
               (7)  to be notified orally, at the conclusion of the
  hearing, of the court's determinations of the client's capacity and
  best interest.
         Sec. 592.086.  HEARING AND ORDER AUTHORIZING PSYCHOACTIVE
  MEDICATION. (a)  The court may issue an order authorizing the
  administration of one or more classes of psychoactive medication to
  a client who:
               (1)  has been committed to a residential care facility;
  or
               (2)  is in custody awaiting trial in a criminal
  proceeding and was committed to a residential care facility in the
  six months preceding a hearing under this section.
         (b)  The court may issue an order under this section only if
  the court finds by clear and convincing evidence after the hearing:
               (1)  that the client lacks the capacity to make a
  decision regarding the administration of the proposed medication
  and that treatment with the proposed medication is in the best
  interest of the client; or
               (2)  if the client was committed to a residential care
  facility by a criminal court with jurisdiction over the client,
  that:
                     (A)  the client presents a danger to the client or
  others in the residential care facility in which the client is being
  treated as a result of a mental disorder or mental defect as
  determined under Section 592.087; and
                     (B)  treatment with the proposed medication is in
  the best interest of the client.
         (c)  In making the finding that treatment with the proposed
  medication is in the best interest of the client, the court shall
  consider:
               (1)  the client's expressed preferences regarding
  treatment with psychoactive medication;
               (2)  the client's religious beliefs;
               (3)  the risks and benefits, from the perspective of
  the client, of taking psychoactive medication;
               (4)  the consequences to the client if the psychoactive
  medication is not administered;
               (5)  the prognosis for the client if the client is
  treated with psychoactive medication;
               (6)  alternative, less intrusive treatments that are
  likely to produce the same results as treatment with psychoactive
  medication; and
               (7)  less intrusive treatments likely to secure the
  client's consent to take the psychoactive medication.
         (d)  A hearing under this subchapter shall be conducted on
  the record by the probate judge or judge with probate jurisdiction,
  except as provided by Subsection (e).
         (e)  A judge may refer a hearing to a magistrate or
  court-appointed master who has training regarding psychoactive
  medications.  The magistrate or master may effectuate the notice,
  set hearing dates, and appoint attorneys as required by this
  subchapter.  A record is not required if the hearing is held by a
  magistrate or court-appointed master.
         (f)  A party is entitled to a hearing de novo by the judge if
  an appeal of the magistrate's or master's report is filed with the
  court before the fourth day after the date the report is issued.  
  The hearing de novo shall be held not later than the 30th day after
  the date the application for an order to authorize psychoactive
  medication was filed.
         (g)  If a hearing or an appeal of a master's or magistrate's
  report is to be held in a county court in which the judge is not a
  licensed attorney, the proposed client or the proposed client's
  attorney may request that the proceeding be transferred to a court
  with a judge who is licensed to practice law in this state.  The
  county judge shall transfer the case after receiving the request,
  and the receiving court shall hear the case as if it had been
  originally filed in that court.
         (h)  As soon as practicable after the conclusion of the
  hearing, the client is entitled to have provided to the client and
  the client's attorney written notification of the court's
  determinations under this section.  The notification shall include
  a statement of the evidence on which the court relied and the
  reasons for the court's determinations.
         (i)  An order entered under this section shall authorize the
  administration to a client, regardless of the client's refusal, of
  one or more classes of psychoactive medications specified in the
  application and consistent with the client's diagnosis.  The order
  shall permit an increase or decrease in a medication's dosage,
  restitution of medication authorized but discontinued during the
  period the order is valid, or the substitution of a medication
  within the same class.
         (j)  The classes of psychoactive medications in the order
  must conform to classes determined by the department.
         (k)  An order issued under this section may be reauthorized
  or modified on the petition of a party.  The order remains in effect
  pending action on a petition for reauthorization or modification.  
  For the purpose of this subsection, "modification" means a change
  of a class of medication authorized in the order.
         Sec. 592.087.  FINDING THAT CLIENT PRESENTS A DANGER. In
  making a finding under Section 592.086(b)(2) that the client
  presents a danger to the client or others in the residential care
  facility in which the client is being treated as a result of a
  mental disorder or mental defect, the court shall consider:
               (1)  an assessment of the client's present mental
  condition; and
               (2)  whether the client has inflicted, attempted to
  inflict, or made a serious threat of inflicting substantial
  physical harm to the client's self or to another while in the
  facility.
         Sec. 592.088.  APPEAL. (a)  A client may appeal an order
  under this subchapter in the manner provided by Section 593.056 for
  an appeal of an order committing the client to a residential care
  facility.
         (b)  An order authorizing the administration of medication
  regardless of the refusal of the client is effective pending an
  appeal of the order.
         Sec. 592.089.  EFFECT OF ORDER. (a)  A person's consent to
  take a psychoactive medication is not valid and may not be relied on
  if the person is subject to an order issued under Section 592.086.
         (b)  The issuance of an order under Section 592.086 is not a
  determination or adjudication of mental incompetency and does not
  limit in any other respect that person's rights as a citizen or the
  person's property rights or legal capacity.
         Sec. 592.090.  EXPIRATION OF ORDER. (a)  Except as provided
  by Subsection (b), an order issued under Section 592.086 expires on
  the anniversary of the date the order was issued.
         (b)  An order issued under Section 592.086 for a client
  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.
  SUBCHAPTER F. USE OF RESTRAINTS IN STATE SCHOOLS
         Sec. 592.151.  DEFINITION. In this subchapter, "executive
  commissioner" means the executive commissioner of the Health and
  Human Services Commission.
         Sec. 592.152.  USE OF RESTRAINTS.  The executive
  commissioner shall adopt rules to ensure that:
               (1)  a mechanical or physical restraint is not
  administered to a resident of a state school unless the restraint
  is:
                     (A)  necessary to prevent imminent physical
  injury to the resident or another; and
                     (B)  the least restrictive restraint effective to
  prevent imminent physical injury;
               (2)  the administration of a mechanical or physical
  restraint to a resident of a state school ends immediately once the
  imminent risk of physical injury abates; and
               (3)  a mechanical or physical restraint is not
  administered to a resident of a state school as punishment or as
  part of a behavior plan.
         Sec. 592.153.  RESTRAINTS PROHIBITED. A person may not use a
  straitjacket or a papoose board to restrain a resident of a state
  school.
         Sec. 592.154.  CONFLICT WITH OTHER LAW. To the extent of a
  conflict between this subchapter and Chapter 322, this subchapter
  controls.
         SECTION 4.  Subsections (a) and (b), Article 46B.086, Code
  of Criminal Procedure, are amended to read as follows:
         (a)  This article applies only to a defendant:
               (1)  who is determined under this chapter to be
  incompetent to stand trial;
               (2)  for whom an inpatient mental health facility,
  residential care facility, or outpatient treatment program
  provider has prepared a continuity of care plan that requires the
  defendant to take psychoactive medications; and
               (3)  who, after a hearing held under Section 574.106 or
  592.086, Health and Safety Code, has been found not to meet the
  criteria prescribed by Sections 574.106(a) and (a-1), or Sections
  592.086(a) and (b), Health and Safety Code, for court-ordered
  administration of psychoactive medications; or
               (4)  who is subject to Article 46B.072.
         (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
  or outpatient treatment provider 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 or 592.086, Health and Safety Code.  The motion to
  compel medication for a defendant in an outpatient treatment
  program may be filed at any time.
         SECTION 5.  Not later than January 1, 2010, the executive
  commissioner of the Health and Human Services Commission shall
  adopt rules required under Section 592.152, Health and Safety Code,
  as added by this Act.
         SECTION 6.  If before implementing any provision of this Act
  a state agency determines that a waiver or authorization from a
  federal agency is necessary for implementation of that provision,
  the agency affected by the provision shall request the waiver or
  authorization and may delay implementing that provision until the
  waiver or authorization is granted.
         SECTION 7.  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, 2009.
 
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