TMA Supports a Physician’s Ability to Detain Patient in ED

TMA Testimony

Senate Health and Human Services Committee
Senate Bill 937 by Sen. Royce West
April 16, 2013

On behalf of the Texas Medical Association (TMA) and the Texas College of Emergency Physicians (TCEP), which together represent more than 47,000 physicians and medical students, thank you for the opportunity to provide input on Committee Substitute Senate Bill 937, relating to the authority of certain facilities to temporarily detain a person with mental illness.

TMA and TCEP strongly support the goals of this bill. Physicians and facilities should have the authority to temporarily hold a patient with mental illness if the patient has the significant potential to hurt himself or others. Currently, a patient and his or her physician must rely on a peace officer or court to execute an emergency order of detention in these situations. Some states do allow a physician to legally hold a patient and, if necessary, transfer that patient to a psychiatric facility without commitment from a peace officer or a court order. We applaud this bill’s effort to update Texas’ law to allow physicians and facilities to hold a patient suffering from mental illness for up to four hours when it is in the patient’s best interest and until an evaluation and appropriate treatment plan can be made.

While we support the bill’s goals, we do have a particular concern the legislation may inadvertently create a new cause of action against physicians or facilities. We request language be added to clarify that placement of a hold or the failure to place a hold will not result in new liability. Specifically, we recommend adding a new subsection (h) in section 573.005 to read as follows:

h) A physician, health professional acting under the direction of a physician, or health care facility is not civilly or criminally liable or subject to review or disciplinary action by the appropriate licensing authority for the detention of a person under this section, or for the failure to detain a person under this section. This section does not create a cause of action or liability against a physician, health professional acting under the direction of a physician, or health care facility. 

Finally, we also would ask for clarifying amendments in subsections (c), (d), and (e). We recommend replacing 573.005(c) entirely so that it specifies a facility is responsible for detaining a person only, versus also examining or treating, actions that are the purview of physicians. The new 573.005(c) would read:

c) A facility may detain a person who voluntarily requested treatment from the facility or who lacks the capacity to consent to treatment, as provided by this section, if… 

We also support amending the bill in subsections (d) and (e) as follows:

 d) The facility staff or physician shall notify the person if the facility intends to detain the person…. 

e) The facility staff or physician shall document in writing a decision to detain a person under this section and the reasons for that decision and shall make the document a part of in the person’s clinical medical record. 

On behalf of our members, we greatly appreciate your efforts to improve mental health services. We look forward to working with you as the bill moves forward.

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