(a) For purposes of this section, a person lacks the capacity to consent to receive protective services if, because of mental or physical impairment, the person is incapable of understanding the nature of the services offered and agreeing to receive or rejecting protective services.
(b) If the department determines that an elderly person or person with a disability is suffering from abuse, neglect, or exploitation presenting a threat to life or physical safety, that the person lacks capacity to consent to receive protective services, and that no consent can be obtained, the department may petition the probate or statutory or constitutional county court that has probate jurisdiction in the county in which the person resides for an emergency order authorizing protective services.
(c) The petition shall be verified and shall include:
(1) the name, age, and address of the elderly person or person with a disability who needs protective services;
(2) the nature of the abuse, neglect, or exploitation;
(3) the services needed; and
(4) a medical report signed by a physician stating that the person is suffering from abuse, neglect, or exploitation presenting a threat to life or physical safety and stating that the person is physically or mentally incapable of consenting to services unless the court finds that an immediate danger to the person's health or safety exists and there is not sufficient time to obtain the medical report.
(c-1) Notwithstanding Subsection (c)(4), in lieu of a medical report described by Subsection (c)(4), the petition may include an assessment of the health status of the elderly person or person with a disability as described by Subsection (c-2) or psychological status as described by Subsection (c-3), or a medical opinion of the person's health status as described by Subsection (c-4), if the department determines, after making a good faith effort, that a physician from whom the department may obtain the medical report is unavailable. The department shall ensure that the person who performs an assessment of the health or psychological status of the elderly person or person with a disability has training and experience in performing the applicable assessment.
(c-2) Except as provided by Subsection (c-4), an assessment of the health status of the elderly person or person with a disability must be performed by a physician assistant or advanced practice nurse. The person performing the assessment shall sign a report stating:
(1) that the elderly person or person with a disability is reported to be suffering from abuse, neglect, or exploitation, which may present a threat to the person's life or physical safety;
(2) whether the elderly person or person with a disability has provided the person's medical history to the physician assistant or advanced practice nurse, as applicable; and
(3) that in the professional opinion of the physician assistant or advanced practice nurse, as applicable, the issuance of an emergency order authorizing protective services without the consent of the elderly person or person with a disability is necessary under the circumstances.
(c-3) An assessment of the psychological status of the elderly person or person with a disability must be performed by a licensed professional counselor, licensed psychologist, or master social worker who has training and expertise in issues related to abuse, neglect, and exploitation. The person performing the assessment shall sign a report stating:
(1) that the elderly person or person with a disability is reported to be suffering from abuse, neglect, or exploitation, which may present a threat to the person's life or physical safety; and
(2) that in the professional opinion of the licensed professional counselor, licensed psychologist, or master social worker, as applicable, the issuance of an emergency order authorizing protective services without the consent of the elderly person or person with a disability is necessary under the circumstances.
(c-4) A registered nurse may perform a nursing assessment of the health status of the elderly person or person with a disability. If the registered nurse, based on the registered nurse's professional nursing judgment, determines that the person is likely to be suffering from abuse, neglect, or exploitation, which may present a threat to the person's life or physical safety, the registered nurse shall report that assessment to a physician. After the registered nurse reports the assessment, the physician shall sign a written opinion stating whether:
(1) the elderly person or person with a disability is reported to be suffering from abuse, neglect, or exploitation, which may present a threat to the person's life or physical safety; and
(2) the issuance of an emergency order authorizing protective services without the consent of the elderly person or person with a disability is necessary under the circumstances.
(c-5) The physician may use the registered nurse's assessment of the health status of the elderly person or person with a disability as the basis of the physician's professional opinion under Subsection (c-4).
(d) On finding that there is reasonable cause to believe that abuse, neglect, or exploitation presents a threat to life or physical safety for the elderly person or person with a disability and that the person lacks capacity to consent to services, the court may:
(1) order removal of the person to safer surroundings;
(2) order medical services; and
(3) order other available services necessary to remove conditions creating the threat to life or physical safety, including the services of law enforcement officers or emergency medical services personnel.
(d-1) If the court renders an order that is based on a petition including an assessment under Subsection (c-2) or (c-3) or a medical opinion under Subsection (c-4), the court shall order that the elderly person or person with a disability be examined by a physician not later than 72 hours after the time the provision of protective services begins. After performing the examination, the physician shall sign and submit to the court a medical report stating the physician's opinion whether the person is:
(1) suffering from abuse, neglect, or exploitation presenting a threat to life or physical safety; and
(2) physically or mentally incapable of consenting to services.
(e) The emergency order expires on the earlier of the end of the 10th day after the date the order is rendered or the end of the 10th day after the date the person was removed to safer surroundings if the emergency order was rendered subsequent to the removal of the person to safer surroundings in accordance with Subsection (h), unless:
(1) the emergency order terminates as provided by Subsection (e-1);
(2) the 10-day period ends on a Saturday, Sunday, or legal holiday in which event the order is automatically extended to 4 p.m. on the first succeeding business day; or
(3) the court extends the order as provided by Subsection (e-2).
(e-1) An emergency order that was rendered based on a petition that included an assessment under Subsection (c-2) or (c-3) or a medical opinion under Subsection (c-4) immediately terminates if the medical report issued under Subsection (d-1) states the physician's opinion that the elderly person or person with a disability:
(1) is not suffering from abuse, neglect, or exploitation presenting a threat to life or physical safety; or
(2) is physically or mentally capable of consenting to services.
(e-2) The court, after notice and a hearing, may extend an emergency order issued under this section, other than an emergency order that terminated as provided under Subsection (e-1), for a period of not more than 30 days after the date the original emergency order for protective services would have expired under Subsection (e). The court, after notice and a hearing and for good cause shown, may grant a second extension of an emergency order of not more than an additional 30 days. The court may not grant more than two extensions of the original emergency order. An extension order that ends on a Saturday, Sunday, or legal holiday is automatically extended to 4 p.m. on the first succeeding business day. The court may modify or terminate the emergency order on petition of the department, the incapacitated person, or any person interested in the person's welfare.
(f) Any medical facility, emergency medical services provider, or physician who provides treatment to or who transports an elderly person or person with a disability pursuant to an emergency order under Subsection (d) or an emergency authorization under Subsection (h) is not liable for any damages arising from the treatment or transportation, except those damages resulting from the negligence of the facility, provider, or physician.
(g) The court shall appoint an attorney ad litem to represent the elderly person or person with a disability in any proceeding brought by the department under this section. A reasonable fee, as determined by the court, shall be paid to the attorney ad litem from the general fund of the county.
(h) If the department cannot obtain an emergency order under this section because the court is closed on a Saturday, Sunday, or legal holiday or after 5 p.m., the department may remove or authorize an appropriate transportation service, including an emergency medical services provider, to remove the elderly person or person with a disability to safer surroundings, authorize medical treatment, or authorize or provide other available services necessary to remove conditions creating the threat to life or physical safety. The department must obtain an emergency order under this section not later than 4 p.m. on the first succeeding business day after the date on which protective services are provided. If the department does not obtain an emergency order, the department shall cease providing protective services and, if necessary, make arrangements for the immediate return of the person to the place from which the person was removed, to the person's place of residence in the state, or to another suitable place.
(i) If the department's removal of a person from the person's place of residence under this section results in that residence being vacant, the department shall notify the appropriate law enforcement agency of the vacancy to facilitate the law enforcement agency's monitoring of the residence.
Added by Acts 1981, 67th Leg., p. 2368, ch. 584, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, Sec. 1, eff. Sept. 1, 1983; Acts 1987, 70th Leg., ch. 568, Sec. 4, eff. Sept. 1, 1987; Acts 1987, 70th Leg., ch. 569, Sec. 1, eff. June 18, 1987; Acts 1991, 72nd Leg., ch. 213, Sec. 2 to 4, eff. Sept. 1, 1991; Acts 1995, 74th Leg., ch. 303, Sec. 13, eff. Sept. 1, 1995. Renumbered from Sec. 48.061 and amended by Acts 1999, 76th Leg., ch. 907, Sec. 26, eff. Sept. 1, 1999. Amended by Acts 2001, 77th Leg., ch. 75, Sec. 2, eff. May 14, 2001.
Acts 2011, 82nd Leg., R.S., Ch. 1056 (S.B. 221 ), Sec. 15, eff. September 1, 2011.
Acts 2013, 83rd Leg., R.S., Ch. 116 (S.B. 1236 ), Sec. 1, eff. May 18, 2013.
Acts 2013, 83rd Leg., R.S., Ch. 887 (H.B. 908 ), Sec. 1, eff. June 14, 2013.
