2009 Texas Code
HEALTH AND SAFETY CODE
TITLE 7. MENTAL HEALTH AND MENTAL RETARDATION
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.