S.B. No. 85

SURROGATE DECISION MAKING

Effective Date: September 1, 1997

AN ACT

relating to surrogate decision making.

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

SECTION 1.  Subsections (c) and (f), Section 597.043, Health and Safety Code, are amended to read as follows:

(c)  The list of qualified individuals from which committee members are drawn shall include:

(1)  health care professionals licensed or registered in this state who have specialized training in medicine, psychopharmacology, nursing, or psychology;

(2)  persons with mental retardation or parents, siblings, spouses, or children of a person with mental retardation;

(3)  attorneys licensed in this state who have knowledge of legal issues of concern to persons with mental retardation or to the families of persons with mental retardation;

(4)  members of private organizations that advocate on behalf of persons with mental retardation; and

(5)  persons with demonstrated expertise or interest in the care and treatment of persons with mental disabilities.

(f)  The department [Each committee] shall designate a committee chair.

SECTION 2.  Subsection (b), Section 597.044, Health and Safety Code, is amended to read as follows:

(b)  An application must be in the form prescribed by the department, must be signed by the applicant, and must:

(1)  state that the applicant has reason to believe and does believe that the client has a need for major medical or dental treatment, psychoactive medication, or a highly restrictive procedure;

(2)  specify the condition proposed to be treated;

(3)  provide a description of the proposed treatment, including the risks and benefits to the client of the proposed treatment;

(4)  provide a description of generally accepted alternatives to the proposed treatment, including the risks and potential benefits to the client of the alternatives, and the reasons the alternatives were rejected;

(5)  state the applicant's opinion on whether the proposed treatment promotes the client's best interest and the grounds for the opinion;

(6) [(5)]  state the client's opinion about the proposed treatment, if known;

(7) [(6)]  provide any other information necessary to determine the client's best interests regarding the treatment; and

(8) [(7)]  state that the client does not have a guardian of the person and does not have a parent, spouse, child, or other person with demonstrated interest in the care and welfare of the client who is able and willing to become the client's guardian or surrogate decision-maker.

SECTION 3.  Section 597.045, Health and Safety Code, is amended to read as follows:

Sec. 597.045.  NOTICE OF REVIEW OF APPLICATION FOR TREATMENT DECISION. (a)  Following [On] receipt of an application for a treatment decision that meets the requirements of Section 597.044(b), the department shall appoint a surrogate consent committee.

(b)  [The department shall notify pro bono attorney programs if available in the area in which the client resides of the intent to review an application for treatment decision.

[(c)]  The ICF-MR facility with assistance from the department shall schedule a review of the application.

(c) [(d)]  The ICF-MR facility with assistance from the department shall send notice of the date, place, and time of the review to the surrogate consent committee, [the pro bono attorney program if available in the area in which the client resides,] the client who is the subject of the application, the client's actively involved parent, spouse, adult child, or other person known to have a demonstrated interest in the care and welfare of the client, and any other person as prescribed by board rule. The ICF-MR facility shall include a copy of the application and a statement of the committee's procedure for consideration of the application, including the opportunity to be heard or to present evidence and to appeal.

SECTION 4.  Subsection (c), Section 597.046, Health and Safety Code, is amended to read as follows:

(c)  If a committee that does not include in its membership an individual listed in Section 597.043(c)(1) is to review an application for a treatment decision about psychoactive medication, the department [committee chair] shall provide consultation [consult] with a health care professional licensed or registered in this state to assist the committee in the determination of the best interest of the client.

SECTION 5.  Subsections (a), (e), and (f), Section 597.048, Health and Safety Code, are amended to read as follows:

(a)  The committee shall review the application at the time, place, and date provided [by the ICF-MR facility] in the notice under Section 597.045.

(e)  If practicable, the committee shall interview and observe the client before making a determination of the client's best interest, and in those cases when a client is not interviewed, the reason must be documented in the committee's [client's] record.

(f)  At any time before the committee makes its determination of a client's best interest under Section 597.049, the committee chair may [shall] suspend the review of the application for not more than five days if any person applies for appointment as the client's guardian of the person in accordance with the Texas Probate Code.

SECTION 6.  Subsection (d), Section 597.049, Health and Safety Code, is amended to read as follows:

(d)  The committee shall determine a date on which the consent becomes effective and a date on which the consent expires.

SECTION 7.  Subsection (b), Section 597.050, Health and Safety Code, is amended to read as follows:

(b)  The ICF-MR facility [committee] shall send a copy of the committee's opinion to:

(1)  each person notified under Section 597.045; and

(2)  [the director of the client's ICF-MR facility; and

[(3)]  the department.

SECTION 8.  Subsection (b), Section 597.052, Health and Safety Code, is amended to read as follows:

(b)  The interdisciplinary team may consent to psychoactive medication subsequent to the initial consent [decision] for administration of psychoactive medication made by a surrogate consent committee in accordance with rules of the department until the expiration date of the consent.

SECTION 9.  Section 597.054, Health and Safety Code, is amended to read as follows:

Sec. 597.054.  PROCEDURES. (a)  Each ICF-MR shall develop procedures for the surrogate consent committees in accordance with the rules adopted under Section 597.002.

(b)  [A committee shall phase in, during the three-year period immediately following the effective date of this chapter, its initial review process for applications for treatment decisions regarding adult clients who do not have legal guardians and who are receiving psychoactive medication.

[(c)]  A committee is not subject to Chapter 2001, Government Code, Chapter 551, Government Code, or Chapter 552, Government Code.

SECTION 10.  Section 597.055, Health and Safety Code, is repealed.

SECTION 11.  The importance of this legislation and the crowded condition of the calendars in both houses create an emergency and an imperative public necessity that the constitutional rule requiring bills to be read on three several days in each house be suspended, and this rule is hereby suspended, and that this Act take effect and be in force from and after its passage, and it is so enacted.


Courtesy of Glenn M. Karisch, Ikard & Golden, P. C., Austin, Texas. This page was last revised on June 11, 1997.