2009 Texas Code
CIVIL PRACTICE AND REMEDIES CODE
TITLE 6. MISCELLANEOUS PROVISIONS
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.

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