CHAPTER 137. DECLARATION FOR MENTAL HEALTH TREATMENT
CIVIL PRACTICE AND REMEDIES CODE
TITLE 6. MISCELLANEOUS PROVISIONS
CHAPTER 137. DECLARATION FOR MENTAL HEALTH TREATMENT
Sec. 137.001. DEFINITIONS. In this chapter:
(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, Health and Safety Code.
(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, Health and
Safety Code, 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.
(7) "Mental health treatment" means electroconvulsive or other
convulsive treatment, treatment of mental illness with
psychoactive medication as defined by Section 574.101, Health and
Safety Code, or emergency mental health treatment.
(8) "Principal" means a person who has executed a declaration
for mental health treatment.
Added by Acts 1997, 75th Leg., ch. 1318, Sec. 1, eff. Sept. 1,
1997. Amended by Acts 1999, 76th Leg., ch. 464, Sec. 1, eff. June
18, 1999.
Sec. 137.002. PERSONS WHO MAY EXECUTE 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.
Added by Acts 1997, 75th Leg., ch. 1318, Sec. 1, eff. Sept. 1,
1997.
Sec. 137.003. EXECUTION AND WITNESSES. (a) A 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.
Added by Acts 1997, 75th Leg., ch. 1318, Sec. 1, eff. Sept. 1,
1997.
Sec. 137.004. HEALTH CARE PROVIDER TO ACT IN 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.
Added by Acts 1997, 75th Leg., ch. 1318, Sec. 1, eff. Sept. 1,
1997.
Sec. 137.005. LIMITATION ON LIABILITY. (a) 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 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.
Added by Acts 1997, 75th Leg., ch. 1318, Sec. 1, eff. Sept. 1,
1997.
Sec. 137.006. DISCRIMINATION RELATING TO 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.
Added by Acts 1997, 75th Leg., ch. 1318, Sec. 1, eff. Sept. 1,
1997.
Sec. 137.007. USE AND EFFECT OF DECLARATION FOR 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.
Added by Acts 1997, 75th Leg., ch. 1318, Sec. 1, eff. Sept. 1,
1997. Amended by Acts 1999, 76th Leg., ch. 464, Sec. 2, eff. June
18, 1999.
Sec. 137.008. DISREGARD OF DECLARATION FOR 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, Health
and Safety Code, and treatment is authorized in compliance with
Section 574.106, Health and Safety Code; or
(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, Health and Safety Code:
(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.
Added by Acts 1997, 75th Leg., ch. 1318, Sec. 1, eff. Sept. 1,
1997. Amended by Acts 1999, 76th Leg., ch. 464, Sec. 3, eff. June
18, 1999.
Sec. 137.009. CONFLICTING OR CONTRARY 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 Chapter 135; or
(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, Health and Safety Code.
Added by Acts 1997, 75th Leg., ch. 1318, Sec. 1, eff. Sept. 1,
1997.
Sec. 137.010. REVOCATION. (a) A declaration 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.
Added by Acts 1997, 75th Leg., ch. 1318, Sec. 1, eff. Sept. 1,
1997. Amended by Acts 1999, 76th Leg., ch. 464, Sec. 4, eff. June
18, 1999.
Sec. 137.011. FORM OF DECLARATION FOR MENTAL 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.
Added by Acts 1997, 75th Leg., ch. 1318, Sec. 1, eff. Sept. 1,
1997.