14- 472 C.M.R. ch. 1, § B-IV

Current through 2024-51, December 18, 2024

Section 472-1-B-IV - INFORMED CONSENT TO TREATMENT

A. Recipients and their guardians, custodians and legally responsible parents have the right to informed consent for all treatment.

B. Statement of purpose. This rule has the following purposes:

(1) To promote respect for individual autonomy and recipient participation in decision-making;

(2) To ensure that, whenever possible, the informed consent of a recipient or his or her legally responsible parent, guardian or custodian is obtained prior to treatment;

(3) To avoid, whenever possible, forcible imposition of any treatment;

(4) To provide reasonable standards and procedural mechanisms for determining when to treat a recipient absent his or her informed consent, consistent with applicable law; and

(5) To ensure that the recipient is fully protected against the unwarranted exercise of the state's parens patriae power.

C. Treatment of recipients. Treatment may be provided to a recipient only when:

(1) Informed consent for such treatment has been obtained from the recipient in the following circumstances:

a. The recipient has been living separately from parents or legal guardians for at least 60 days and is independent of parental or legal guardian support;

b. The recipient is or was legally married;

c. The recipient is or was a member of the Armed Forces of the United States; or

d. The recipient has been emancipated by the court pursuant to 15 M.R.S.A. §3506-A; and

e. The recipient is clinically competent.

(2) The recipient is an unemancipated minor, or clinically incapacitated minor and the informed consent of the legally responsible parent, custodian or guardian has been obtained; or

(3) The recipient is 14 or over, the treatment is psychotropic medication, and the informed consent of the recipient and the legally responsible parents, guardians or custodians has been obtained.

D. Informed consent to treatment. Informed consent to treatment is obtained only if the recipient, under C(1-3) above, or the legally responsible parent, guardian or custodian possess capacity to make a reasoned decision regarding the treatment and the recipient under C(1-3) above, and his or her legally responsible parent, guardian or custodian is provided with adequate information concerning the treatment; and the recipient, under C(1-3) above, and his or her legally responsible parent, guardian or custodian makes a voluntary choice in favor of the treatment. Informed consent must be documented in each case in accordance with this section.

(1) Capacity. Capacity means sufficient understanding to comprehend the information outlined in section D(2) and to make a responsible decision concerning a particular treatment.

There is a general assumption in the law that a minor is legally incapacitated to make most health care decisions. However, legal incapacity is not synonymous with clinical or developmental capacity which should always be determined on a case by case basis for clinical purposes to participate in a treatment decision. Where non-emergency intrusive medical treatment is at issue, the refusal of a mature (+14) minor must be honored.

(2) Adequate information. The licensed, certified or other qualified mental health professional recommending a particular treatment shall provide to the recipient, if appropriate under C(1-3) above, and his or her legally responsible parent, guardian or custodian, all information relevant to the formulation of a reasoned decision concerning such treatment. The recipient, and his or her legally responsible parent, guardian or custodian, shall have the right to have a person of his or her choice present during the presentation of this information, provided that the nominee can be available within 48 hours, or within such other reasonable period as may be agreed upon; and the recipient, and his or her legally responsible parent, guardian or custodian, shall be informed of this right. The information may be provided orally or in writing, shall be communicated in terms designed to be comprehensible to a lay person, and shall include, without limitation:

a. An assessment of the recipient's condition and needs;

b. The nature of the proposed treatment, and a statement of the reasons why the professional believes it to be indicated in the recipient's case;

c. The expected benefits of the treatment, and the known risks which it entails, including the common side-effects, precautions and contraindications of a particular proposed medication;

d. The anticipated duration of the treatment;

e. A statement of reasonable alternatives to the proposed treatment, if any;

f. Information as to where the recipient and his or her legally responsible parent, guardian or custodian may obtain answers to further questions concerning the treatment;

g. A clear statement that the recipient, where appropriate, has the right to give or withhold consent to the proposed treatment.

(3) Voluntary choice. Consent to treatment must be given willingly in all cases, and may not be obtained through coercion or deception. Special care shall be taken to assure that consent is voluntary where the recipient's status as an involuntary inpatient militates against truly voluntary consent.

A recipient's or legally responsible parents', guardians' or custodians' initial refusal of treatment shall not preclude renewed attempts to obtain willing consent; and a recipient's or legally responsible parents' guardians' or custodians' initial willing consent shall not preclude him or her from validly withdrawing such consent at any time before or during treatment.

(4) Documentation. The informed consent of a recipient and his or her legally responsible parent, guardian or custodian to a particular treatment shall be documented to show:

a. From whom consent is obtained, whether recipient, legally responsible parent, guardian or custodian;

b. If consent is given by the recipient, a signed statement that the recipient possesses capacity to give informed consent;

c. That adequate information, including at a minimum all the elements listed in section D(2) of this rule, was provided;

d. The signature of the legally responsible parent, guardian or custodian and, where applicable under C(1-3) above, the recipient, indicating consent.

(5) Exception to Written Consent

a. In cases of unanticipated treatment needs, the informed consent of a legally responsible parent, guardian or custodian may be obtained by telephone; but such oral consent shall be confirmed in writing in accordance with this section as soon as practicable.

E. Involuntary Emergency Treatment

(1) An emergency is defined as a situation in which, as a result of a recipient's behavior due to mental illness there exists an imminent danger of bodily injury to the recipient or to others.

(2) A licensed physician or a physician extender may declare an emergency when he or she reasonably believes an emergency exists as defined in subsection E (1) above, and when

a. A recognized form of treatment is required immediately to ensure the physical safety of the recipient or of others; and

b. No-one legally entitled to consent on the recipient's behalf is available; and

c. A reasonable person concerned for the physical safety of the recipient or of others would consent under the circumstances.

(3) If a physician or a physician extender declares an emergency, documentation of the emergency shall be immediately entered into the recipient's permanent treatment record, and endorsed, within 24 hours, by the physician, such documentation shall include:

a. A description of the behaviors which were observed that created the emergency;

b. The period, not to exceed 72 hours, during which the emergency treatment may be administered;

c. The expected benefits of the emergency treatment; and

d. The specific behaviors or physical responses which staff should monitor and record, and the means to be used.

(4) At no time may a physician or physician extender declare an emergency merely because the recipient refuses treatment.

(5) Following a declaration of emergency pursuant to subsection E(1) above, a licensed physician or a person acting under his or her direction may administer a recognized form of treatment over the recipient's objection and absent his or her informed consent. Treatment imposed following a declaration of emergency may continue for a period not to exceed 72 consecutive hours.

(6) The administrative head of the facility and the Clinical Director or his or her equivalent shall be notified, as soon as possible, of any emergency. Any renewal of emergency treatment requires review by and the written authorization of the Clinical Director of a mental health institute or his or her equivalent in any other mental health facility.

14- 472 C.M.R. ch. 1, § B-IV