81R79 UM-D

By: Wentworth S.B. No. 1665

A BILL TO BE ENTITLED

AN ACT

relating to post-commitment treatment and supervision of persons with mental illness who are manifestly dangerous.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Section 574.036, Health and Safety Code, is amended by adding Subsection (f) to read as follows:

(f) In an order committing a person to a mental health facility for extended inpatient mental health services, the judge may include a finding that the person is manifestly dangerous. The judge may include the finding only if the criterion specified by the jury or judge under Section 574.035(c) is that the proposed patient is likely to cause serious harm to others.

SECTION 2. Chapter 574, Health and Safety Code, is amended by adding Subchapter F-1 to read as follows:

SUBCHAPTER F-1. PROCEEDINGS INVOLVING MANIFESTLY DANGEROUS

PATIENTS

Sec. 574.091. APPLICABILITY. This subchapter applies only to a patient receiving court-ordered inpatient mental health services at an inpatient mental health facility who is:

(1) found to be manifestly dangerous in an order committing the person to extended inpatient mental health services under Section 574.036(f);

(2) committed to a maximum security unit in accordance with Article 46B.104, Code of Criminal Procedure; or

(3) the subject of an affirmative determination under Article 46C.157, Code of Criminal Procedure.

Sec. 574.092. RELEASE OF PATIENT. (a) Notwithstanding any other provision of this chapter or of Chapter 46B or 46C, Code of Criminal Procedure, a facility administrator may not permit a patient to leave the inpatient mental health facility to receive outpatient mental health services or under a pass or furlough unless the administrator:

(1) submits to the review board established under Section 574.093 a continuing care plan prepared by the physician responsible for the patient's treatment; and

(2) receives:

(A) a determination from the review board that a treatment and supervision plan is not necessary; or

(B) a court order in accordance with Section 574.094, if the review board determines that a treatment and supervision plan is necessary.

(b) A facility administrator shall, not later than the 90th day before the scheduled discharge date, submit to the review board established under Section 574.093 a continuing care plan for a patient scheduled to be discharged.

Sec. 574.093. REVIEW BOARD. (a) The executive commissioner of the Health and Human Services Commission shall appoint a five-member review board to determine whether a patient who has had a continuing care plan forwarded to the review board would be manifestly dangerous if the patient did not follow the continuing care plan after leaving the inpatient mental health facility. A review board must include at least one psychiatrist licensed to practice medicine in this state and two persons who work directly with persons with mental illness or mental retardation.

(b) In determining whether a patient would be manifestly dangerous if the patient did not follow the patient's continuing care plan, the review board 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 another while in the facility;

(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;

(4) whether the patient during a period of release from an inpatient mental health facility under the current order or a prior order for inpatient mental health services has inflicted, attempted to inflict, or made a serious threat of inflicting substantial physical harm to another; and

(5) whether the patient is likely to follow the continuing care plan on release from the facility without a treatment and supervision plan.

(c) If the review board determines that a patient would be manifestly dangerous if the patient did not follow the continuing care plan after leaving the inpatient mental health facility, the review board shall recommend to the court that ordered the patient's inpatient mental health services a treatment and supervision plan that may include:

(1) provisions requiring the patient to submit to:

(A) tracking under a particular type of tracking service or any other appropriate supervision;

(B) access to and tracking of the patient's prescription records; or

(C) a continuous automated delivery system for necessary medications;

(2) provisions prohibiting the patient from changing the patient's residence without first obtaining authorization from the court and from leaving the state without first obtaining authorization from the court;

(3) provisions requiring the patient to notify the court immediately or within 24 hours of any change in the patient's status that affects proper treatment and supervision, including:

(A) a change in the patient's physical health or job status; and

(B) any incarceration of the patient; or

(4) any other provision that the review board finds necessary to ensure that the patient follows the continuing care plan.

(d) If the review board determines that a patient would not be manifestly dangerous if the patient did not follow the continuing care plan after leaving the inpatient mental health facility, the review board shall inform the facility administrator and the court that ordered the patient's inpatient mental health services of the review board's determination that a treatment and supervision plan is not necessary.

Sec. 574.094. HEARING AND ORDER AUTHORIZING TREATMENT AND SUPERVISION PLAN. (a) A court that receives a recommended treatment and supervision plan from the review board may:

(1) enter an order modifying the order for inpatient mental health services to allow the patient to leave the inpatient mental health facility to receive outpatient mental health services or under a pass or furlough subject to the conditions provided by the treatment and supervision plan;

(2) enter an order requiring the patient to comply with the recommended treatment and supervision plan after the patient is discharged from the facility; or

(3) enter an order stating that the treatment and supervision plan is not necessary.

(b) The court may enter an order under Subsection (a)(1) or (3) without a hearing or with a hearing as prescribed by Section 574.061(d). If a hearing is not requested, the court may enter the order based solely on the recommendation of the review board and any supporting information.

(c) The court may enter an order under Subsection (a)(2) only if the court finds by clear and convincing evidence after a hearing that:

(1) the patient would be manifestly dangerous if the patient did not follow the patient's continuing care plan after leaving the inpatient mental health facility; and

(2) the treatment and supervision plan recommended by the review board is necessary to ensure that the patient follows the patient's continuing care plan.

(d) In making a finding under Subsection (c) that the patient would be manifestly dangerous if the patient did not follow the patient's continuing care plan, 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 another while in the facility;

(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;

(4) whether the patient during a period of release from an inpatient mental health facility under the current order or a prior order for inpatient mental health services has inflicted, attempted to inflict, or made a serious threat of inflicting substantial physical harm to another;

(5) whether the patient is likely to follow the continuing care plan on release from the facility without a treatment and supervision plan;

(6) the testimony of the patient and any expert testifying on behalf of the patient; and

(7) the availability of an alternative, less intrusive treatment and supervision plan likely to result in the patient's compliance with the patient's continuing care plan.

(e) A court may modify any order under this section on receipt of a recommendation from the review board, after a biennial review under Section 574.095, or after a hearing on a petition for removal of all or part of the treatment and supervision conditions.

(f) A court that receives a determination from the review board that a treatment and supervision plan is not necessary:

(1) shall enter the review board's determination in the patient's court record; and

(2) may conduct further proceedings as otherwise provided by this chapter.

(g) A patient is entitled to be present and to have the benefit of all constitutional protections provided to the patient at a hearing under this section.

Sec. 574.095. BIENNIAL REVIEW. (a) The review board shall conduct a biennial review of the status of a patient who is released subject to a recommended treatment and supervision plan ordered under Section 574.094(a)(2).

(b) The patient may be represented by counsel at the biennial review.

(c) If the patient has a treating physician, the physician shall provide a report to the review board regarding whether a requirement imposed by the treatment and supervision plan should be modified or removed.

(d) The review board may:

(1) recommend that the court modify or remove a requirement imposed by the treatment and supervision plan if the review board finds that the requirement is no longer necessary to ensure that the patient does not become manifestly dangerous; or

(2) recommend that the court extend and, if necessary, modify the order requiring a treatment and supervision plan if the review board finds that the plan and any modifications are necessary to ensure that the patient does not become manifestly dangerous.

Sec. 574.096. PETITION FOR REMOVAL OF TREATMENT AND SUPERVISION CONDITIONS. (a) A patient subject to an order entered under Section 574.094(a)(1) or (2) requiring the patient to comply with a treatment and supervision plan may file with the court a petition for removal of all or part of the conditions imposed under that order.

(b) If the patient files a petition for removal of all or part of the treatment and supervision conditions, the patient shall serve the petition on the court, the review board, and the county attorney or district attorney with jurisdiction in that court.

(c) On receipt of a petition for removal of all or part of the treatment and supervision conditions, the court shall attempt as soon as practicable to review the petition.

(d) The court may deny without a hearing a petition for removal of all or part of the treatment and supervision conditions if the court finds that the petition is frivolous.

(e) If the court does not deny a petition for removal of all or part of the treatment and supervision conditions filed by the patient, the court shall conduct as soon as practicable a hearing on the petition.

(f) The patient and the attorney representing the state are entitled to an immediate examination of the patient by an expert.

(g) On request of the patient or the attorney representing the state, the court shall conduct the hearing before a jury.

(h) The burden of proof at the hearing is on the state to prove by clear and convincing evidence that all or the relevant part of the treatment and supervision plan is necessary to ensure that the patient does not become manifestly dangerous.

(i) A patient is entitled to be present and to have the benefit of all constitutional protections provided to the patient at a hearing under this section.

SECTION 3. The change in law made by this Act applies only to persons:

(1) committed to temporary or extended inpatient mental health services under Chapter 574, Health and Safety Code, on or after the effective date of this Act;

(2) found manifestly dangerous in an order committing the person to extended inpatient mental health services under Section 574.036(f), Health and Safety Code, as added by this Act, on or after the effective date of this Act;

(3) committed to a maximum security unit in accordance with Article 46B.104, Code of Criminal Procedure, on or after the effective date of this Act; or

(4) subject to an affirmative determination made under Article 46C.157, Code of Criminal Procedure, on or after the effective date of this Act.

SECTION 4. This Act takes effect September 1, 2009.