By: Zaffirini	S.B. No. 34
	(In the Senate - Filed November 12, 2012; January 28, 2013,
	read first time and referred to Committee on Health and Human
	Services; April 11, 2013, reported favorably by the following
	vote:  Yeas 7, Nays 0; April 11, 2013, sent to printer.)

	A BILL TO BE ENTITLED
	AN ACT
	relating to the administration of psychoactive medications to
	persons receiving services in certain 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 F.
	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 592.153, the administration
	of psychoactive medications.
	SECTION 3.  Chapter 592, Health and Safety Code, is amended
	by adding Subchapter F to read as follows:
	SUBCHAPTER F.  ADMINISTRATION OF PSYCHOACTIVE MEDICATIONS
	Sec. 592.151.  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. 592.152.  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
	592.156; 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 residential care 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. 592.153.  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
	592.156 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. 592.154.  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. 592.155.  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. 592.156.  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 treatment with the proposed medication is in the best interest
	of the client, and either:
	(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 592.157; or
	(B)  the client:
	(i)  has remained confined in a correctional
	facility, as defined by Section 1.07, Penal Code, for a period
	exceeding 72 hours while awaiting transfer for competency
	restoration treatment; and
	(ii)  presents a danger to the client or
	others in the correctional facility as a result of a mental disorder
	or mental defect as determined under Section 592.157.
	(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 associate judge who has training regarding
	psychoactive medications.  The magistrate or associate judge 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 associate judge.
	(f)  A party is entitled to a hearing de novo by the judge if
	an appeal of the magistrate's or associate judge'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 an associate judge'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.
	(l)  For a client described by Subsection (b)(2)(B), an order
	issued under this section:
	(1)  authorizes the initiation of any appropriate
	mental health treatment for the patient awaiting transfer; and
	(2)  does not constitute authorization to retain the
	client in a correctional facility for competency restoration
	treatment.
	Sec. 592.157.  FINDING THAT CLIENT PRESENTS A DANGER. In
	making a finding under Section 592.156(b)(2) that, as a result of a
	mental disorder or mental defect, the client presents a danger to
	the client or others in the residential care facility in which the
	client is being treated or in the correctional facility, as
	applicable, 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. 592.158.  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. 592.159.  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 592.156.
	(b)  The issuance of an order under Section 592.156 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. 592.160.  EXPIRATION OF ORDER. (a)  Except as provided
	by Subsection (b), an order issued under Section 592.156 expires on
	the anniversary of the date the order was issued.
	(b)  An order issued under Section 592.156 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.
	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)  who either:
	(A)  remains confined in a correctional facility,
	as defined by Section 1.07, Penal Code, for a period exceeding 72
	hours while awaiting transfer to an inpatient mental health
	facility, a residential care facility, or an outpatient treatment
	program;
	(B)  is committed to an inpatient mental health
	facility or a residential care facility for the purpose of
	competency restoration;
	(C)  is confined in a correctional facility while
	awaiting further criminal proceedings following competency
	restoration treatment; or
	(D)  is subject to Article 46B.072, if the court
	has made the determinations required by Subsection (a-1) of that
	article;
	(3)  for whom a correctional facility that employs or
	contracts with a licensed psychiatrist, an inpatient mental health
	facility, a residential care facility, or an outpatient treatment
	program provider has prepared a continuity of care plan that
	requires the defendant to take psychoactive medications; and
	(4)  who, after a hearing held under Section 574.106 or
	592.156, Health and Safety Code, if applicable, has been found to
	not meet the criteria prescribed by Sections 574.106(a) and (a-1)
	or 592.156(a) and (b), 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
	or outpatient treatment program provider, as applicable, 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 592.156, Health and Safety
	Code, except that, for a defendant in an outpatient treatment
	program, the motion may be filed at any time.
	SECTION 5.  This Act takes effect September 1, 2013.
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