§ 137.008.Disregard of Declaration for Mental Health Treatment

The two exceptions, and the exclusion at the end is as important as either.

A provider may treat the principal in a manner contrary to the principal’s wishes as expressed in a declaration only in two situations.

First, under a court order. Where the principal is under an order for temporary or extended mental health services under the Health and Safety Code and treatment is authorized in compliance with that code’s medication hearing provision.

Both elements are required. A commitment order alone does not override the declaration; the medication must also be authorized through the hearing process, in which — as the conflicting-provisions section says — the declaration is conclusive evidence of the principal’s preference.

Second, in an emergency, and only when the principal’s instructions have not been effective in reducing the severity of the behavior that has caused the emergency.

Read that condition carefully. An emergency alone is not enough. The declaration’s own instructions must be tried first and must have failed — which is why the statutory form asks the principal to rank restraint, seclusion and medication in order of preference.

Subsection (b) preserves the commitment system. A declaration does not limit any authority under the Health and Safety Code to take a person into custody or to admit or retain a person in a mental health treatment facility.

The document governs treatment, not detention.

Subsection (c) is the strongest protection in the chapter: this section does not apply to the use of electroconvulsive treatment or other convulsive treatment.

So neither exception reaches convulsive treatment. A refusal of it in a declaration cannot be overridden under this section — not by a court order for mental health services, and not in an emergency.