| (a) A person notified of a surrogate consent committee
hearing, as required by §9.291(a) and (d) of this division (relating
to Notice of Hearing and Documents Provided to Surrogate Consent Committee),
is entitled to be present at the hearing and to present evidence or
testimony personally or through a representative.
(b) A community program provider must ensure that:
(1) the individual for whom the treatment decision
is sought is present at the hearing, if practicable;
(2) the individual's record is at the hearing; and
(3) an audio recording of the hearing is made.
(c) At a surrogate consent committee hearing, the committee:
(1) must review the documentation described in §9.291(c)
of this division and any additional information provided to the committee
by DADS;
(2) must interview and observe the individual, if practicable,
and document its impressions of the interview and observation;
(3) must review evidence or hear testimony from a person
notified of the hearing as required by §9.291(a) and (d) of this
division, or the person's representative, if the person or the person's
representative makes a request to present evidence or testimony at
the hearing; and
(4) may review evidence or hear testimony from any
person who may be able to assist the committee in making a treatment
decision.
(d) After the surrogate consent committee has reviewed
all evidence and heard all testimony, the committee must enter into
closed deliberations and make the treatment decision.
(e) In making the treatment decision, the surrogate
consent committee must determine, based on clear and convincing evidence,
whether the proposed treatment, medication, or procedure is in the
best interest of the individual.
(1) If a majority of the volunteers on the surrogate
consent committee determine that the proposed treatment, medication,
or procedure is in the best interest of the individual, the committee
must consent to the proposed treatment, medication, or procedure.
(2) If a majority of the volunteers on the surrogate
consent committee determine that the proposed treatment, medication,
or procedure is not in the best interest of the individual, the committee
must deny consent to the proposed treatment, medication, or procedure.
(f) If the surrogate consent committee consents to
the proposed treatment, medication, or procedure, the committee must
determine the date on which the consent becomes effective and the
duration of the consent.
(g) If an application for a guardianship proceeding
for the individual has been filed before the surrogate consent committee
makes a treatment decision, the committee must, before continuing
with the hearing, make one of the following determinations:
(1) a person has not been appointed guardian of the
person for the individual within five days after suspension of the
committee proceeding in accordance with §9.294 of this division
(relating to Notice of Guardianship Proceeding); or
(2) there is a medical necessity, based on clear and
convincing evidence, that the treatment decision be made within five
days after the hearing date.
(h) Formal rules of evidence are not applicable to
a surrogate consent committee hearing.
(i) A surrogate consent committee must conduct the
hearing and document its treatment decision in accordance with written
instructions from DADS available at www.dads.state.tx.us.
(j) A community program provider must:
(1) send to DADS in accordance with written instructions
from DADS available at www.dads.state.tx.us:
(A) the audio recording of a hearing made in accordance
with subsection (b) of this section;
(B) the documentation completed by the surrogate consent
committee; and
(C) the written evidence presented at the hearing;
and
(2) send to a person notified of a surrogate consent
committee hearing, as required by §9.291(a) and (d) of this division,
the documentation completed by the surrogate consent committee.
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| Source Note: The provisions of this §261.293 adopted to be effective July 1, 2007, 32 TexReg 3856; transferred effective October 1, 2020, as published in the Texas Register August 28, 2020, 45 TexReg 6127 |
