Bill Text: TX SB1752 | 2013-2014 | 83rd Legislature | Engrossed
Bill Title: Relating to declarations for mental health treatment.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Engrossed - Dead) 2013-05-06 - Referred to Public Health [SB1752 Detail]
Download: Texas-2013-SB1752-Engrossed.html
By: Uresti, Zaffirini | S.B. No. 1752 |
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relating to declarations for mental health treatment. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
SECTION 1. Chapter 137, Civil Practice and Remedies Code, | ||
is transferred to Chapter 576, Health and Safety Code, redesignated | ||
as Subchapter C, Chapter 576, Health and Safety Code, and amended to | ||
read as follows: | ||
SUBCHAPTER C [ |
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TREATMENT | ||
Sec. 576.051 [ |
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(1) "Adult" means a person 18 years of age or older or | ||
a person under 18 years of age who has had the disabilities of | ||
minority removed. | ||
(2) "Attending physician" means the physician, | ||
selected by or assigned to a patient, who has primary | ||
responsibility for the treatment and care of the patient. | ||
(3) "Declaration for mental health treatment" means a | ||
document making a declaration of preferences or instructions | ||
regarding mental health treatment. | ||
(4) "Emergency" means a situation in which it is | ||
immediately necessary to treat a patient to prevent: | ||
(A) probable imminent death or serious bodily | ||
injury to the patient because the patient: | ||
(i) overtly or continually is threatening | ||
or attempting to commit suicide or serious bodily injury to the | ||
patient; or | ||
(ii) is behaving in a manner that indicates | ||
that the patient is unable to satisfy the patient'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 of the patient. | ||
(5) "Health care provider" means an individual or | ||
facility licensed, certified, or otherwise authorized to | ||
administer health care or treatment, for profit or otherwise, in | ||
the ordinary course of business or professional practice and | ||
includes a physician or other health care provider, a residential | ||
care provider, or an inpatient mental health facility as defined by | ||
Section 571.003[ |
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(6) "Incapacitated" means that, in the opinion of the | ||
court in a guardianship proceeding under Chapter XIII, Texas | ||
Probate Code, or in a medication hearing under Section 574.106[ |
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the nature and consequences of a proposed treatment, including the | ||
benefits, risks, and alternatives to the proposed treatment, and | ||
lacks the ability to make mental health treatment decisions because | ||
of impairment. | ||
(7) "Mental health treatment" means electroconvulsive | ||
or other convulsive treatment, treatment of mental illness with | ||
psychoactive medication as defined by Section 574.101[ |
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(8) "Principal" means a person who has executed a | ||
declaration for mental health treatment. | ||
Sec. 576.052 [ |
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DECLARATION FOR MENTAL HEALTH TREATMENT; PERIOD OF VALIDITY. | ||
(a) An adult who is not incapacitated may execute a declaration | ||
for mental health treatment. The preferences or instructions may | ||
include consent to or refusal of mental health treatment. | ||
(b) A declaration for mental health treatment is effective | ||
on execution as provided by this chapter. Except as provided by | ||
Subsection (c), a declaration for mental health treatment expires | ||
on the third anniversary of the date of its execution or when | ||
revoked by the principal, whichever is earlier. | ||
(c) If the declaration for mental health treatment is in | ||
effect and the principal is incapacitated on the third anniversary | ||
of the date of its execution, the declaration remains in effect | ||
until the principal is no longer incapacitated. | ||
Sec. 576.053 [ |
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declaration for mental health treatment must be signed by the | ||
principal in the presence of two or more subscribing witnesses. | ||
(b) A witness may not, at the time of execution, be: | ||
(1) the principal's health or residential care | ||
provider or an employee of that provider; | ||
(2) the operator of a community health care facility | ||
providing care to the principal or an employee of an operator of the | ||
facility; | ||
(3) a person related to the principal by blood, | ||
marriage, or adoption; | ||
(4) a person entitled to any part of the estate of the | ||
principal on the death of the principal under a will, trust, or deed | ||
in existence or who would be entitled to any part of the estate by | ||
operation of law if the principal died intestate; or | ||
(5) a person who has a claim against the estate of the | ||
principal. | ||
(c) For a witness's signature to be effective, the witness | ||
must sign a statement affirming that, at the time the declaration | ||
for mental health treatment was signed, the principal: | ||
(1) appeared to be of sound mind to make a mental | ||
health treatment decision; | ||
(2) has stated in the witness's presence that the | ||
principal was aware of the nature of the declaration for mental | ||
health treatment and that the principal was signing the document | ||
voluntarily and free from any duress; and | ||
(3) requested that the witness serve as a witness to | ||
the principal's execution of the document. | ||
Sec. 576.054 [ |
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ACCORDANCE WITH DECLARATION FOR MENTAL HEALTH TREATMENT. A | ||
physician or other health care provider shall act in accordance | ||
with the declaration for mental health treatment when the principal | ||
has been found to be incapacitated. A physician or other provider | ||
shall continue to seek and act in accordance with the principal's | ||
informed consent to all mental health treatment decisions if the | ||
principal is capable of providing informed consent. | ||
Sec. 576.055 [ |
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attending physician, health or residential care provider, or person | ||
acting for or under an attending physician's or health or | ||
residential care provider's control is not subject to criminal or | ||
civil liability and has not engaged in professional misconduct for | ||
an act or omission if the act or omission is done in good faith under | ||
the terms of a declaration for mental health treatment. | ||
(b) An attending physician, health or residential care | ||
provider, or person acting for or under an attending physician's or | ||
health or residential care provider's control does not engage in | ||
professional misconduct for: | ||
(1) failure to act in accordance with a declaration | ||
for mental health treatment if the physician, provider, or other | ||
person: | ||
(A) was not provided with a copy of the | ||
declaration; and | ||
(B) had no knowledge of the declaration after a | ||
good faith attempt to learn of the existence of a declaration; or | ||
(2) acting in accordance with a directive for mental | ||
health treatment after the directive has expired or has been | ||
revoked if the physician, provider, or other person does not have | ||
knowledge of the expiration or revocation. | ||
Sec. 576.056 [ |
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EXECUTION OF DECLARATION FOR MENTAL HEALTH TREATMENT. A health or | ||
residential care provider, health care service plan, insurer | ||
issuing disability insurance, self-insured employee benefit plan, | ||
or nonprofit hospital service plan may not: | ||
(1) charge a person a different rate solely because | ||
the person has executed a declaration for mental health treatment; | ||
(2) require a person to execute a declaration for | ||
mental health treatment before: | ||
(A) admitting the person to a hospital, nursing | ||
home, or residential care home; | ||
(B) insuring the person; or | ||
(C) allowing the person to receive health or | ||
residential care; | ||
(3) refuse health or residential care to a person | ||
solely because the person has executed a declaration for mental | ||
health treatment; or | ||
(4) discharge the person solely because the person has | ||
or has not executed a declaration for mental health treatment. | ||
Sec. 576.057 [ |
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MENTAL HEALTH TREATMENT. (a) On being presented with a | ||
declaration for mental health treatment, a physician or other | ||
health care provider shall make the declaration a part of the | ||
principal's medical record. When acting in accordance with a | ||
declaration for mental health treatment, a physician or other | ||
health care provider shall comply with the declaration to the | ||
fullest extent possible. | ||
(b) If a physician or other provider is unwilling at any | ||
time to comply with a declaration for mental health treatment, the | ||
physician or provider may withdraw from providing treatment | ||
consistent with the exercise of independent medical judgment and | ||
must promptly: | ||
(1) make a reasonable effort to transfer care for the | ||
principal to a physician or provider who is willing to comply with | ||
the declaration; | ||
(2) notify the principal, or principal's guardian, if | ||
appropriate, of the decision to withdraw; and | ||
(3) record in the principal's medical record the | ||
notification and, if applicable, the name of the physician or | ||
provider to whom the principal is transferred. | ||
Sec. 576.058 [ |
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MENTAL HEALTH TREATMENT. (a) A physician or other health care | ||
provider may subject the principal to mental health treatment in a | ||
manner contrary to the principal's wishes as expressed in a | ||
declaration for mental health treatment only: | ||
(1) if the principal is under an order for temporary or | ||
extended mental health services under Section 574.034 or 574.035[ |
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with Section 574.106[ |
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(2) in case of an emergency when the principal's | ||
instructions have not been effective in reducing the severity of | ||
the behavior that has caused the emergency. | ||
(b) A declaration for mental health treatment does not limit | ||
any authority provided by Chapter 573 or 574[ |
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(1) to take a person into custody; or | ||
(2) to admit or retain a person in a mental health | ||
treatment facility. | ||
(c) This section does not apply to the use of | ||
electroconvulsive treatment or other convulsive treatment. | ||
Sec. 576.059 [ |
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PROVISIONS. (a) Mental health treatment instructions contained | ||
in a declaration executed in accordance with this chapter supersede | ||
any contrary or conflicting instructions given by: | ||
(1) a durable power of attorney under Subchapter D, | ||
Chapter 166 [ |
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(2) a guardian appointed under Chapter XIII, Texas | ||
Probate Code, after the execution of the declaration. | ||
(b) Mental health treatment instructions contained in a | ||
declaration executed in accordance with this chapter shall be | ||
conclusive evidence of a declarant's preference in a medication | ||
hearing under Section 574.106[ |
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Sec. 576.060 [ |
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for mental health treatment is revoked when a principal who is not | ||
incapacitated: | ||
(1) notifies a licensed or certified health or | ||
residential care provider of the revocation; | ||
(2) acts in a manner that demonstrates a specific | ||
intent to revoke the declaration; or | ||
(3) executes a later declaration for mental health | ||
treatment. | ||
(b) A principal's health or residential care provider who is | ||
informed of or provided with a revocation of a declaration for | ||
mental health treatment immediately shall: | ||
(1) record the revocation in the principal's medical | ||
record; and | ||
(2) give notice of the revocation to any other health | ||
or residential care provider the provider knows to be responsible | ||
for the principal's care. | ||
Sec. 576.061 [ |
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HEALTH TREATMENT. The declaration for mental health treatment must | ||
be in substantially the following form: | ||
DECLARATION FOR MENTAL HEALTH TREATMENT | ||
I, __________________, being an adult of sound mind, wilfully | ||
and voluntarily make this declaration for mental health treatment | ||
to be followed if it is determined by a court that my ability to | ||
understand the nature and consequences of a proposed treatment, | ||
including the benefits, risks, and alternatives to the proposed | ||
treatment, is impaired to such an extent that I lack the capacity to | ||
make mental health treatment decisions. "Mental health treatment" | ||
means electroconvulsive or other convulsive treatment, treatment | ||
of mental illness with psychoactive medication, and preferences | ||
regarding emergency mental health treatment. | ||
(OPTIONAL PARAGRAPH) I understand that I may become | ||
incapable of giving or withholding informed consent for mental | ||
health treatment due to the symptoms of a diagnosed mental | ||
disorder. These symptoms may include: | ||
________________________________________________________________ | ||
PSYCHOACTIVE MEDICATIONS | ||
If I become incapable of giving or withholding informed | ||
consent for mental health treatment, my wishes regarding | ||
psychoactive medications are as follows: | ||
_____ I consent to the administration of the following | ||
medications: | ||
________________________________________________________________ | ||
_____ I do not consent to the administration of the following | ||
medications: | ||
________________________________________________________________ | ||
_____ I consent to the administration of a federal Food and | ||
Drug Administration approved medication that was only approved and | ||
in existence after my declaration and that is considered in the same | ||
class of psychoactive medications as stated below: | ||
________________________________________________________________ | ||
Conditions or limitations: ________________________________ | ||
CONVULSIVE TREATMENT | ||
If I become incapable of giving or withholding informed | ||
consent for mental health treatment, my wishes regarding convulsive | ||
treatment are as follows: | ||
_____ I consent to the administration of convulsive | ||
treatment. | ||
_____ I do not consent to the administration of convulsive | ||
treatment. | ||
Conditions or limitations: ________________________________ | ||
PREFERENCES FOR EMERGENCY TREATMENT | ||
In an emergency, I prefer the following treatment FIRST | ||
(circle one) Restraint/Seclusion/Medication. | ||
In an emergency, I prefer the following treatment SECOND | ||
(circle one) Restraint/Seclusion/Medication. | ||
In an emergency, I prefer the following treatment THIRD | ||
(circle one) Restraint/Seclusion/Medication. | ||
______ I prefer a male/female to administer restraint, | ||
seclusion, and/or medications. | ||
Options for treatment prior to use of restraint, seclusion, | ||
and/or medications: | ||
________________________________________________________________ | ||
Conditions or limitations: ________________________________ | ||
ADDITIONAL PREFERENCES OR INSTRUCTIONS | ||
________________________________________________________________ | ||
Conditions or limitations: ________________________________ | ||
Signature of Principal/Date: ______________________________ | ||
STATEMENT OF WITNESSES | ||
I declare under penalty of perjury that the principal's name | ||
has been represented to me by the principal, that the principal | ||
signed or acknowledged this declaration in my presence, that I | ||
believe the principal to be of sound mind, that the principal has | ||
affirmed that the principal is aware of the nature of the document | ||
and is signing it voluntarily and free from duress, that the | ||
principal requested that I serve as witness to the principal's | ||
execution of this document, and that I am not a provider of health | ||
or residential care to the principal, an employee of a provider of | ||
health or residential care to the principal, an operator of a | ||
community health care facility providing care to the principal, or | ||
an employee of an operator of a community health care facility | ||
providing care to the principal. | ||
I declare that I am not related to the principal by blood, | ||
marriage, or adoption and that to the best of my knowledge I am not | ||
entitled to and do not have a claim against any part of the estate of | ||
the principal on the death of the principal under a will or by | ||
operation of law. | ||
Witness Signature: _________________________________________ | ||
Print Name: ________________________________________________ | ||
Date: ______________________ | ||
Address: ___________________________________________________ | ||
Witness Signature: _________________________________________ | ||
Print Name: ________________________________________________ | ||
Date: ______________________ | ||
Address: ___________________________________________________ | ||
NOTICE TO PERSON MAKING A DECLARATION FOR MENTAL HEALTH TREATMENT | ||
This is an important legal document. It creates a | ||
declaration for mental health treatment. Before signing this | ||
document, you should know these important facts: | ||
This document allows you to make decisions in advance about | ||
mental health treatment and specifically three types of mental | ||
health treatment: psychoactive medication, convulsive therapy, | ||
and emergency mental health treatment. The instructions that you | ||
include in this declaration will be followed only if a court | ||
believes that you are incapacitated to make treatment decisions. | ||
Otherwise, you will be considered able to give or withhold consent | ||
for the treatments. | ||
This document will continue in effect for a period of three | ||
years unless you become incapacitated to participate in mental | ||
health treatment decisions. If this occurs, the directive will | ||
continue in effect until you are no longer incapacitated. | ||
You have the right to revoke this document in whole or in part | ||
at any time you have not been determined to be incapacitated. YOU | ||
MAY NOT REVOKE THIS DECLARATION WHEN YOU ARE CONSIDERED BY A COURT | ||
TO BE INCAPACITATED. A revocation is effective when it is | ||
communicated to your attending physician or other health care | ||
provider. | ||
If there is anything in this document that you do not | ||
understand, you should ask a lawyer to explain it to you. This | ||
declaration is not valid unless it is signed by two qualified | ||
witnesses who are personally known to you and who are present when | ||
you sign or acknowledge your signature. | ||
SECTION 2. (a) Subdivision (6), Section 576.051, Health | ||
and Safety Code, as effective September 1, 2013, is amended to read | ||
as follows: | ||
(6) "Incapacitated" means that, in the opinion of the | ||
court in a guardianship proceeding under Title 3, Estates [ |
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574.106, a person lacks the ability to understand the nature and | ||
consequences of a proposed treatment, including the benefits, | ||
risks, and alternatives to the proposed treatment, and lacks the | ||
ability to make mental health treatment decisions because of | ||
impairment. | ||
(b) This section takes effect January 1, 2014. | ||
SECTION 3. (a) Subsection (a), Section 576.059, Health and | ||
Safety Code, as effective September 1, 2013, is amended to read as | ||
follows: | ||
(a) Mental health treatment instructions contained in a | ||
declaration executed in accordance with this chapter supersede any | ||
contrary or conflicting instructions given by: | ||
(1) a durable power of attorney under Subchapter D, | ||
Chapter 166; or | ||
(2) a guardian appointed under Title 3, Estates | ||
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declaration. | ||
(b) This section takes effect January 1, 2014. | ||
SECTION 4. Except as otherwise provided by this Act, this | ||
Act takes effect September 1, 2013. |