(a) Filing of Petition. A physician who is treating a patient may petition a probate court or a court with probate jurisdiction for an order to authorize the administration of a class or classes of psychoactive medication regardless of the patient's refusal:
  (1) if the physician believes that the patient lacks the capacity to make a decision regarding the administration of the psychoactive medication;
  (2) if the physician determines that the medication is the proper course of treatment for the patient; and
  (3) if the patient is under an order for temporary or extended mental health services under THSC §574.034 or §574.035 and the patient, verbally or by other indication, refuses to take the medication voluntarily.
(b) Hearing on petition. A hearing on a petition for an order to authorize the administration of psychoactive medication regardless of the patient's refusal will be held in accordance with provisions outlined in THSC §§576.104 - 574.106.
(c) Issuance of order.
  (1) The court may issue an order authorizing the administration of one or more classes of psychoactive medication only if the court finds by clear and convincing evidence after the hearing that:
    (A) the patient lacks the capacity to make a decision regarding the administration of the proposed medication; and
    (B) treatment with the proposed medication is in the best interest of the patient.
  (2) In making its finding, the court shall consider:
    (A) the patient's expressed preferences regarding treatment with psychoactive medication;
    (B) the patient's religious beliefs;
    (C) the risks and benefits, from the perspective of the patient, of taking psychoactive medication;
    (D) the consequences to the patient if the psychoactive medication is not administered;
    (E) the prognosis for the patient if the patient is treated with psychoactive medication; and
    (F) alternatives to treatment with psychoactive medication.
  (3) An order entered under this subsection shall authorize the administration to a patient, regardless of the patient's refusal, of one or more classes of psychoactive medications specified in the petition and consistent with the patient's diagnosis. The order shall permit:
    (A) an increase or decrease in a medication's dosage;
    (B) reinstitution of medication authorized but discontinued during the period the order is valid; or
    (C) the substitution of a medication within the same medication class.
  (4) The issuance of an order authorizing administration of psychoactive medication is not a determination or adjudication of mental incompetency and does not limit in any other respect the patient's rights as a citizen or the patient's property rights or legal capacity.
(d) Rights of patients.
  (1) A patient for whom an application for an order to authorize the administration of a psychoactive medication is filed is entitled to:
    (A) representation by a court-appointed attorney who is knowledgeable about issues to be adjudicated at the hearing;
    (B) meet with that attorney as soon as is practicable to prepare for the hearing and to discuss any of the patient's questions or concerns;
    (C) receive, immediately after the time of the hearing is set, a copy of the application and written notice of the time, place, and date of the hearing;
    (D) be told, at the time personal notice of the hearing is given, of the patient's right to a hearing and right to the assistance of an attorney to prepare for the hearing and to answer any questions or concerns;
    (E) be present at the hearing;
    (F) request from the court an independent expert; and
    (G) oral notification, at the conclusion of the hearing, of the court's determinations of the patient's capacity and best interests.
  (2) A patient may appeal an order under this subchapter in the manner provided by THSC §574.070 for appeal of an order requiring court-ordered mental health services. The order authorizing the administration of psychoactive medication remains effective pending the appeal.
(e) Review and expiration of order.
  (1) An order authorizing the administration of psychoactive medication expires on the expiration or termination date of the order for temporary or extended mental health services in effect when the order for psychoactive medication is issued.
  (2) An order authorizing the administration of medication shall be reviewed by the court on an annual basis.

Source Note: The provisions of this §414.411 adopted to be effective August 31, 2004, 29 TexReg 8317