Written Testimony on HB 3681

 

TCDD logo   Mary Durheim, Chair
Andrew D. Crim, Vice Chair
Beth Stalvey, MPH, PhD, Executive Director



6201 E. Oltorf, Suite 600
Austin, TX 78741-7509
Email: tcdd@tcdd.texas.gov
Website: www.tcdd.texas.gov
  Phone: (512) 437-5432
Toll Free: (800) 262-0334
Fax: (512) 437-5434

House Public Health Committee

Written Testimony on House Bill 3681
Increasing Period for Emergency Detention from 48 to 72 Hours

April 10, 2019

Thank you for the opportunity to provide comments on House Bill 3681, which would increase the period of time a person could be held in involuntary emergency detention from 48 hours (two days) to 72 hours (three days).

The Texas Council for Developmental Disabilities (TCDD) is established by state and federal law and is governed by 27 board members, appointed by the Governor, 60% of whom are individuals with developmental disabilities or family members of individuals with disabilities. TCDD’s purpose in law is to encourage policy change so that people with disabilities have opportunities to be fully included in their communities and exercise control over their own lives.

Perhaps the greatest form of discrimination is not being considered at all. Laws governing emergency detention in Texas are focused on people whose behaviors are interpreted as mental illness. Although longstanding National Core Indicators Adult Survey data have shown over time (2007 forward) that at least one-third of people with developmental disabilities also have one or more mental illnesses, behavior that may be attributable to intellectual and developmental disabilities (IDD) is sometimes incorrectly perceived by the public as mental illness that requires psychiatric hospitalization.

This misperception can have a critical effect on a person with IDD because state laws allow any guardian or other adult in Texas to petition the court for an order for emergency detention. In response to a petition personally presented, or presented by e-mail or other electronic means by a physician, the judge or magistrate can order emergency detention (Health and Safety Code, Section 573.011). Of greatest concern is that emergency detention can be initiated by a peace officer without the order of a magistrate or judge (Health and Safety Code, Section 573.001) as long as the peace office provides a “notification of detention” to the receiving facility when the person is delivered (Health and Safety Code, Section 573.002).

As proposed, HB 3681 would increase the amount of time a person can be involuntarily detained from 48 hours to 72 hours. Because weekends and holidays are excluded from the calculation of the hours of detention, the period of detention could extend to five or more days, depending on when the person was detained (Health and Safety Code, 573.021(b)). The additional time is of specific concern to people with IDD for the following reasons:

  • The expectation is that a person will be detained in a psychiatric hospital, but the law provides that if such a facility or other similar facility is not locally accessible, other arrangements can be made, including detention in a jail in an “extreme emergency” (Health and Safety Code, Section 573.001(e)), provided the person detained is kept separate from any person charged or convicted of a crime. Note that this does not include keeping the person detained separate from other persons who are under emergency detention for behavior that constitutes “a risk of harm that is imminent” in jail or any other setting.
  • There is a common misconception that emergency detention provides a way to force the patient to take psychoactive medication. However, the purpose of emergency detention is to obtain a physician examination and evaluation as to whether an individual has a mental illness and presents a danger to self or others to the extent that involuntary commitment may be required. To be clear, the purpose of emergency detention is not to provide treatment and forcing medication in the absence of consent is prohibited by 25 TAC 414.406(a), which is based on Health and Safety Code, Subchapter G, Sections 574.101 et seq. and Sell v. United States, 123 S.Ct. 2174(2003).
  • Furthermore, in order to force psychoactive medications in the absence of an emergency, the law provides a court-mediated process to administer medication without consent. This process is not available until an individual undergoes court-ordered commitment (Health and Safety Code, Subchapter G, 574.101 et seq.).
  • For individuals who have been routinely medicated for psychiatric or neurological conditions prior to detention, the period of detention can lead to worsening of symptoms. This can be especially true for individuals who have a communication impediment and are unable to describe personal medical history or whose medical history is not available.
  • In the absence of voluntary consent to treatment (which would suggest the emergency detention is not needed), the only interventions available during the period of emergency detention would be in response to behaviors that constitute an emergency in which there is imminent risk of substantial bodily harm or death to self or others. These interventions could include restraint, including chemical restraint, or seclusion. The inappropriate use of restraint or seclusion, such as the use of restraint or seclusion in the absence of a bona fide emergency, is prohibited under the Developmental Disabilities Assistance and Bill of Rights Act of 2000.
  • Even while being detained in a psychiatric hospital, as opposed to a jail, the person would be with other individuals alleged or found to be a danger to self or others. Many of these patients would have a mental illness (but would not have an intellectual or developmental disability) and could also have a forensic history. Thus emergency detention could result in subjecting a person with IDD to victimization for several days.

Until the passage of House Bill 518, 80th Texas Legislature, 2007, the maximum length of time for an emergency detention was 24 hours (Health and Safety Code, Section 573.021(b) and (c)). When the length of the emergency detention was increased to 48 hours, the time for a physician to conduct an examination was reduced from 24 hours to 12 hours. Increasing the period of detention to 48 hours was done to provide the physician with more time to determine whether to file for a court order of protective custody (OPC). An OPC enables involuntary hospitalization of an individual for several more days pending a court hearing to determine whether the person meets criteria for commitment.

The question that must be answered is whose interests are served by increasing the length of an involuntary emergency detention to 72 hours or longer. Increasing the 48-hour period of emergency detention by 24 hours or more is not necessary when the extension of involuntary hospitalization is otherwise available pursuant to a court-ordered OPC.

In light of the risks that people with IDD might be exposed to as a result of the bill, as currently written HB 3681 does not appear to be consistent with goals of TCDD, and we respectfully urge its reconsideration.

Sincerely,

Linda Logan, MPAff
Public Policy Specialist
Texas Council for Developmental Disabilities