CHAPTER 597. CAPACITY OF CLIENTS TO CONSENT TO TREATMENT
HEALTH AND SAFETY CODE
TITLE 7. MENTAL HEALTH AND MENTAL RETARDATION
SUBTITLE D. PERSONS WITH MENTAL RETARDATION ACT
CHAPTER 597. CAPACITY OF CLIENTS TO CONSENT TO TREATMENT
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 597.001. DEFINITIONS. In this chapter:
(1) "Highly restrictive procedure" means the application of
aversive stimuli, exclusionary time-out, physical restraint, or a
requirement to engage in an effortful task.
(2) "Client" means a person receiving services in a
community-based ICF-MR facility.
(3) "Committee" means a surrogate consent committee established
under Section 597.042.
(4) "ICF-MR" has the meaning assigned by Section 531.002.
(5) "Interdisciplinary team" means those interdisciplinary teams
defined in the Code of Federal Regulations for participation in
the intermediate care facilities for the mentally retarded.
(6) "Major medical and dental treatment" means a medical,
surgical, dental, or diagnostic procedure or intervention that:
(A) has a significant recovery period;
(B) presents a significant risk;
(C) employs a general anesthetic; or
(D) in the opinion of the primary physician, involves a
significant invasion of bodily integrity that requires the
extraction of bodily fluids or an incision or that produces
substantial pain, discomfort, or debilitation.
(7) "Psychoactive medication" means any medication prescribed
for the treatment of symptoms of psychosis or other severe mental
or emotional disorders and that is used to exercise an effect
upon the central nervous system for the purposes of influencing
and modifying behavior, cognition, or affective state.
(8) "Surrogate decision-maker" means an individual authorized
under Section 597.041 to consent on behalf of a client residing
in an ICF-MR facility.
Added by Acts 1993, 73rd Leg., ch. 530, Sec. 1, eff. Aug. 30,
1993. Reenacted by Acts 1999, 76th Leg., ch. 538, Sec. 1, eff.
June 18, 1999.
Sec. 597.002. RULES. The board may adopt rules necessary to
implement this chapter not later than 180 days after its
effective date.
Added by Acts 1993, 73rd Leg., ch. 530, Sec. 1, eff. Aug. 30,
1993. Reenacted by Acts 1999, 76th Leg., ch. 538, Sec. 1, eff.
June 18, 1999.
Sec. 597.003. EXCEPTIONS. (a) This chapter does not apply to
decisions for the following:
(1) experimental research;
(2) abortion;
(3) sterilization;
(4) management of client funds; and
(5) electroconvulsive treatment.
(b) This chapter does not apply to campus-based facilities
operated by the department.
Added by Acts 1993, 73rd Leg., ch. 530, Sec. 1, eff. Aug. 30,
1993. Reenacted by Acts 1999, 76th Leg., ch. 538, Sec. 1, eff.
June 18, 1999.
SUBCHAPTER B. ASSESSMENT OF CLIENT'S CAPACITY; INCAPACITATED
CLIENTS WITHOUT GUARDIANS
Sec. 597.021. ICF-MR ASSESSMENT OF CLIENT'S CAPACITY TO CONSENT
TO TREATMENT. (a) The board by rule shall require an ICF-MR
facility certified in this state to assess the capacity of each
adult client without a legal guardian to make treatment decisions
when there is evidence to suggest the individual is not capable
of making a decision covered under this chapter.
(b) The rules must require the use of a uniform assessment
process prescribed by board rule to determine a client's capacity
to make treatment decisions.
Added by Acts 1993, 73rd Leg., ch. 530, Sec. 1, eff. Aug. 30,
1993. Reenacted by Acts 1999, 76th Leg., ch. 538, Sec. 1, eff.
June 18, 1999.
SUBCHAPTER C. SURROGATE CONSENT FOR ICF-MR CLIENTS
Sec. 597.041. SURROGATE DECISION-MAKERS. (a) If the results of
an assessment conducted in accordance with Section 597.021
indicate that an adult client who does not have a legal guardian
or a client under 18 years of age who has no parent, legal
guardian, or managing or possessory conservator lacks the
capacity to make a major medical or dental treatment decision, an
adult surrogate from the following list, in order of descending
preference, who has decision-making capacity and who is willing
to consent on behalf of the client may consent to major medical
or dental treatment on behalf of the client:
(1) an actively involved spouse;
(2) an actively involved adult child who has the waiver and
consent of all other actively involved adult children of the
client to act as the sole decision-maker;
(3) an actively involved parent or stepparent;
(4) an actively involved adult sibling who has the waiver and
consent of all other actively involved adult siblings of the
client to act as the sole decision-maker; and
(5) any other actively involved adult relative who has the
waiver and consent of all other actively involved adult relatives
of the client to act as the sole decision-maker.
(b) Any person who consents on behalf of a client and who acts
in good faith, reasonably, and without malice is not criminally
or civilly liable for that action.
(c) Consent given by the surrogate decision-maker is valid and
competent to the same extent as if the client had the capacity to
consent and had consented.
(d) Any dispute as to the right of a party to act as a surrogate
decision-maker may be resolved only by a court of record under
Chapter V, Texas Probate Code.
Added by Acts 1993, 73rd Leg., ch. 530, Sec. 1, eff. Aug. 30,
1993. Reenacted by Acts 1999, 76th Leg., ch. 538, Sec. 1, eff.
June 18, 1999.
Sec. 597.042. SURROGATE CONSENT COMMITTEE ESTABLISHED;
DEPARTMENTAL SUPPORT. (a) For cases in which there is no
guardian or surrogate decision-maker available, the department
shall establish and maintain a list of individuals qualified to
serve on a surrogate consent committee.
(b) The department shall provide the staff and assistance
necessary to perform the duties prescribed by this subchapter.
Added by Acts 1993, 73rd Leg., ch. 530, Sec. 1, eff. Aug. 30,
1993. Reenacted by Acts 1999, 76th Leg., ch. 538, Sec. 1, eff.
June 18, 1999.
Sec. 597.043. COMMITTEE MEMBERSHIP. (a) A surrogate consent
committee considering an application for a treatment decision
shall be composed of at least three but not more than five
members, and consent on behalf of clients shall be based on
consensus of the members.
(b) A committee considering an application for a treatment
decision must consist of individuals who:
(1) are not employees of the facility;
(2) do not provide contractual services to the facility;
(3) do not manage or exercise supervisory control over:
(A) the facility or the employees of the facility; or
(B) any company, corporation, or other legal entity that manages
or exercises control over the facility or the employees of the
facility;
(4) do not have a financial interest in the facility or in any
company, corporation, or other legal entity that has a financial
interest in the facility; and
(5) are not related to the client.
(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.
(d) At least one member of the committee must be an individual
listed in Subsection (c)(1) or (5).
(e) A member of a committee shall participate in education and
training as required by department rule.
(f) The department shall designate a committee chair.
Added by Acts 1993, 73rd Leg., ch. 530, Sec. 1, eff. Aug. 30,
1993. Amended by Acts 1997, 75th Leg., ch. 450, Sec. 2, eff.
Sept. 1, 1997. Reenacted by Acts 1999, 76th Leg., ch. 538, Sec.
1, eff. June 18, 1999.
Sec. 597.044. APPLICATION FOR TREATMENT DECISION. (a) If the
results of the assessment conducted in accordance with Section
597.021 indicate that a client who does not have a legal guardian
or surrogate decision-maker lacks the capacity to make a
treatment decision about major medical or dental treatment,
psychoactive medication, or a highly restrictive procedure, the
ICF-MR facility must file an application for a treatment decision
with the department.
(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) state the client's opinion about the proposed treatment, if
known;
(7) provide any other information necessary to determine the
client's best interest regarding the treatment; and
(8) 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.
Added by Acts 1993, 73rd Leg., ch. 530, Sec. 1, eff. Aug. 30,
1993. Amended by Acts 1997, 75th Leg., ch. 450, Sec. 2, eff.
Sept. 1, 1997. Reenacted and amended by Acts 1999, 76th Leg., ch.
538, Sec. 1, eff. June 18, 1999.
Sec. 597.045. NOTICE OF REVIEW OF APPLICATION FOR TREATMENT
DECISION. (a) Following 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 ICF-MR facility with assistance from the department
shall schedule a review of the application.
(c) 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 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.
Added by Acts 1993, 73rd Leg., ch. 530, Sec. 1, eff. Aug. 30,
1993. Amended by Act 1997, 75th Leg., ch. 450, Sec. 4, eff. Sept.
1, 1997. Reenacted by Acts 1999, 76th Leg., ch. 538, Sec. 1, eff.
June 18, 1999.
Sec. 597.046. PREREVIEW OF APPLICATION. (a) Before the date of
the review of an application for a treatment decision the
committee chair shall review the application to determine whether
additional information may be necessary to assist the committee
in determining the client's best interest under the
circumstances.
(b) A committee member may consult with a person who might
assist in the determination of the best interest of the client or
in learning the personal opinions, beliefs, and values of the
client.
(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 shall provide consultation 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.
Added by Acts 1993, 73rd Leg., ch. 530, Sec. 1, eff. Aug. 30,
1993. Amended by Acts 1997, 75th Leg., ch. 450, Sec. 4, eff.
Sept. 1, 1997. Reenacted by Acts 1999, 76th Leg., ch. 538, Sec.
1, eff. June 18, 1999.
Sec. 597.047. CONFIDENTIAL INFORMATION. Notwithstanding any
other state law, a person licensed by this state to provide
services related to health care or to the treatment or care of a
person with mental retardation, a developmental disability, or a
mental illness shall provide to the committee members any
information the committee requests that is relevant to the
client's need for a proposed treatment.
Added by Acts 1993, 73rd Leg., ch. 530, Sec. 1, eff. Aug. 30,
1993. Reenacted by Acts 1999, 76th Leg., ch. 538, Sec. 1, eff.
June 18, 1999.
Sec. 597.048. REVIEW OF APPLICATION. (a) The committee shall
review the application at the time, place, and date provided in
the notice under Section 597.045.
(b) A person notified under Section 597.045 is entitled to be
present and to present evidence personally or through a
representative.
(c) The committee may take testimony or review evidence from any
person who might assist the committee in determining a client's
best interest.
(d) Formal rules of evidence do not apply to committee
proceedings.
(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 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 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.
Added by Acts 1993, 73rd Leg., ch. 530, Sec. 1, eff. Aug. 30,
1993. Amended by Acts 1997, 75th Leg., ch. 450, Sec. 5, eff.
Sept. 1, 1997. Reenacted by Acts 1999, 76th Leg., ch. 538, Sec.
1, eff. June 18, 1999.
Sec. 597.049. DETERMINATION OF BEST INTEREST. (a) The
committee shall make a determination, based on clear and
convincing evidence, of whether the proposed treatment promotes
the client's best interest and a determination that:
(1) a person has not been appointed as the guardian of the
client's person before the sixth day after proceedings are
suspended under Section 597.048(f); or
(2) there is a medical necessity, based on clear and convincing
evidence, that the determination about the proposed treatment
occur before guardianship proceedings are completed.
(b) In making its determination of the best interest of the
client, the committee shall consider fully the preference of the
client as articulated at any time.
(c) According to its determination of the client's best
interest, the committee shall consent or refuse the treatment on
the client's behalf.
(d) The committee shall determine a date on which the consent
becomes effective and a date on which the consent expires.
(e) A person serving on a committee who consents or refuses to
consent on behalf of a client and who acts in good faith,
reasonably, and without malice is not criminally or civilly
liable for that action.
Added by Acts 1993, 73rd Leg., ch. 530, Sec. 1, eff. Aug. 30,
1993. Amended by Acts 1997, 75th Leg., ch. 450, Sec. 6, eff.
Sept. 1, 1997. Reenacted by Acts 1999, 76th Leg., ch. 538, Sec.
1, eff. June 18, 1999.
Sec. 597.050. NOTICE OF DETERMINATION. (a) The committee shall
issue a written opinion containing each of its determinations and
a separate statement of the committee's findings of fact.
(b) The ICF-MR facility shall send a copy of the committee's
opinion to:
(1) each person notified under Section 597.045; and
(2) the department.
Added by Acts 1993, 73rd Leg., ch. 530, Sec. 1, eff. Aug. 30,
1993. Amended by Acts 1997, 75th Leg., ch. 450, Sec. 7, eff.
Sept. 1, 1997. Reenacted by Acts 1999, 76th Leg., ch. 538, Sec.
1, eff. June 18, 1999.
Sec. 597.051. EFFECT OF COMMITTEE'S DETERMINATION. This chapter
does not limit the availability of other lawful means of
obtaining a client's consent for medical treatment.
Added by Acts 1993, 73rd Leg., ch. 530, Sec. 1, eff. June 18,
1999. Reenacted by Acts 1999, 76th Leg., ch. 538, Sec. 1, eff.
June 18, 1999.
Sec. 597.052. SCOPE OF CONSENT. (a) The committee or the
surrogate decision-maker may consent to the release of records
related to the client's condition or treatment to facilitate
treatment to which the committee or surrogate decision-maker has
consented.
(b) The interdisciplinary team may consent to psychoactive
medication subsequent to the initial consent 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.
(c) Unless another decision-making mechanism is provided for by
law, a client, a client's authorized surrogate decision-maker if
available, or the client's interdisciplinary team may consent to
decisions which involve risk to client protection and rights not
specifically reserved to surrogate decision-makers or surrogate
consent committees.
Added by Acts 1993, 73rd Leg., ch. 530, Sec. 1, eff. Aug. 30,
1993. Amended by Acts 1997, 75th Leg., ch. 450, Sec. 8, eff.
Sept. 1, 1997. Reenacted by Acts 1999, 76th Leg., ch. 538, Sec.
1, eff. June 18, 1999.
Sec. 597.053. APPEALS. (a) A person notified under Section
597.045 may appeal the committee's decision by filing a petition
in the probate court or court having probate jurisdiction for the
county in which the client resides or in Travis County. The
person must file the appeal not later than the 15th day after the
effective date of the committee's determination.
(b) If the hearing is to be held in a probate court in which the
judge is not a licensed attorney, the person filing the appeal
may request that the proceeding be transferred to a court with a
judge who is licensed to practice law in this state. The probate
court 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.
(c) A copy of the petition must be served on all parties of
record in the proceedings before the committee.
(d) After considering the nature of the condition of the client,
the proposed treatment, and the need for timely medical
attention, the court may issue a temporary restraining order to
facilitate the appeal. If the order is granted, the court shall
expedite the trial.
Added by Acts 1993, 73rd Leg., ch. 530, Sec. 1, eff. Aug. 30,
1993. Reenacted by Acts 1999, 76th Leg., ch. 538, Sec. 1, eff.
June 18, 1999.
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 is not subject to Chapter 2001, Government Code,
Chapter 551, Government Code, or Chapter 552, Government Code.
Added by Acts 1993, 73rd Leg., ch. 530, Sec. 1, eff. Aug. 30,
1993. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 5.95(49),
(82), (88), eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 450,
Sec. 9, eff. Sept. 1, 1997. Reenacted by Acts 1999, 76th Leg.,
ch. 538, Sec. 1, eff. June 18, 1999.