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Title
34-B: BEHAVIORAL AND DEVELOPMENTAL SERVICES
Chapter 1: GENERAL PROVISIONS
Subchapter
1: DEFINITIONS
§1001. Definitions
As used in this Title, unless the context otherwise indicates, the
following terms have the following meanings.
1. Chief administrative officer. "Chief
administrative officer" means the head of a state institution or the head
of any other institution which provides services which fall under the
jurisdiction of the department.
2. Client. "Client" means a person receiving
services from the department, from any state institution or from any agency
licensed or funded to provide services falling under the jurisdiction of the
department.
3. Commissioner. "Commissioner" means the Commissioner
of Behavioral and Developmental Services or the commissioner's designee, except
that when the term "commissioner and only the commissioner" is used, the term applies only to the person appointed
Commissioner of Behavioral and Developmental Services and not to any
designee.
4. Department. "Department" means the Department of
Behavioral and Developmental Services.
5. Parking area. "Parking area" means land maintained by
the State at the state institutions under the jurisdiction of the department,
which may be designated as parking areas by the heads of the state
institutions.
6. Public way. "Public way" means a road or driveway
on land maintained by the State at the state institutions under the
jurisdiction of the department.
7. Resident. "Resident" means a person residing in
a state institution or in any other institution which provides services which
fall under the jurisdiction of the department.
8. State institution. "State institution" means:
A. The
B. The
D. The
E. The
9. Written political material. "Written political
material" means flyers, handbills or other nonperiodical
publications which are subject to the restrictions of Title 21-A, chapter
13.
Chapter 3: MENTAL
HEALTH
Subchapter
1: MENTAL HEALTH SERVICES
§3001. General
The Department of Behavioral and Developmental Services is
responsible for the direction of the mental health programs in the state
institutions and for the promotion and guidance of mental health programs
within the communities of the State.
§3002. Director (REPEALED)
§3003. Rules
1. Promulgation. The commissioner shall adopt rules, subject to
the Maine Administrative Procedure Act, Title 5, chapter 375, for the
enhancement and protection of the rights of clients receiving services from the
department, from any hospital pursuant to subchapter IV or from any program or
facility administered or licensed by the department under section 1203-A.
2. Requirements. The rules shall include, but are not limited
to:
A. Establishment of the right to
provision of treatment and related services in the least restrictive
appropriate setting;
B. Establishment of the right to an individualized treatment or
service plan, to be developed with the participation of the client;
C. Standards for informed consent to treatment, including
reasonable standards and procedural mechanisms for determining when to treat a
client absent his informed consent, consistent with applicable law;
D. Standards for participation in
experimentation and research;
E. Standards pertaining to the use of
seclusion and restraint;
F. Establishment of the right to
appropriate privacy and to a humane treatment environment;
G. Establishment of the right to confidentiality of records and
procedures pertaining to a person's right to access to his mental health care
records;
H. Establishment of the right to receive
visitors and to communicate by telephone and mail;
I. Procedures to ensure that clients are
notified of their rights;
J. The right to assistance in protecting
a right or advocacy service in the exercise or protection of a right;
K. Provisions for a fair, timely and impartial grievance procedure
for the purpose of ensuring appropriate administrative resolution of grievances
with respect to infringement of rights; and
L. To the extent that state and community resources are available,
establishment of the rights of long-term mentally ill clients containing the
following requirements:
(1) The right to a service system which
employs culturally normative and valued methods and settings;
(2) The right to coordination of the
disparate components of the community service system;
(3) The right to individualized developmental programming which
recognizes that each long-term mentally ill individual is capable of growth or
slowing of deterioration;
(4) The right to a continuum of community services allowing a
gradual transition from a more intense level of service; and
(5) The right to the maintenance of natural support systems, such as
family and friends of the long-term mentally ill individual and formal and
informal networks of mutual and self-help.
3. Public hearing. The commissioner shall hold a public hearing
before adopting these rules and shall give notice of the public hearing
pursuant to the Maine Administrative Procedure Act, Title 5, section
8053.
4. Legislative review. When a rule is proposed or adopted under
this section, a copy of the proposed or adopted rule shall be sent to the
legislative committee having jurisdiction over health and institutional
services.
A. The committee may review the rule and, if it determines that an
adopted rule should be stricken or amended, the committee may prepare
legislation to accomplish that purpose and submit the legislation to the full
Legislature in accordance with legislative rules.
B. The adopted rule shall remain in effect unless the full
Legislature acts to strike or amend it, or it is
repealed or amended by the director in accordance with the Maine Administrative
Procedure Act, Title 5, chapter 375.
§3004. Community Support Systems
1. Definition. As used in this section, unless the context
otherwise indicates, the term "community support system" means the
entire complex of mental health, rehabilitative, residential and other support
services in the community to ensure community integration and the maintenance
of a decent quality of life for persons with chronic mental illness.
2. General policy. The department shall develop programs to:
A. Promote and support the development and implementation of
comprehensive community support systems to ensure community integration and the
maintenance of a decent quality of life for persons with chronic mental illness
in each of the mental health service areas in the State; and
B. Strengthen the capacity of families, natural networks,
self-help groups and other community resources in order to improve the support
for persons with chronic mental illness.
3. Duties. The
department shall:
A. Provide technical assistance for program development, promote
effective coordination with health and other human services and develop new
resources in order to improve the availability and accessibility of
comprehensive community support services to persons with chronic mental
illness;
B. Assess service needs, monitor service delivery related to these
needs and evaluate the outcome of programs designed to meet these needs in
order to enhance the quality and effectiveness of community support
services;
C. Prepare a report that describes the system of community support
services in each of the mental health service regions and statewide.
(1) The report must include both existing
service resources and deficiencies in the system of services.
(2) The report must include an assessment of the roles and
responsibilities of mental health agencies, human services agencies, health
agencies and involved state departments and must suggest ways in which these
agencies and departments can better cooperate to improve the service system for
people with chronic mental illness.
(3) The report must be prepared biennially and must be submitted
to the joint standing committee of the Legislature having jurisdiction over
human resources by December 15th of every even-numbered year.
(4) The committee shall review the report and make recommendations
with respect to administrative and funding improvements in the system of
community support services to persons with chronic mental illness; and
D. Participate in the coordination of services
for persons with chronic mental illnesses with local transitional services
coordination projects for handicapped youth, as established in Title 20-A,
chapter 308, assigning appropriate regional staff and resources as available
and necessary in each region to be served by a project.
§3005. Services to persons who are deaf or hearing-impaired
(REPEALED)
§3006. State Mental Health Plan (REPEALED)
§3006-A. State mental health plan (REPEALED)
§3007. Teenage Suicide Prevention Program
The department shall, in cooperation with the Department of
Education, the Department of Human Services and the "local action
councils" funded in Public Law 1987, chapter 349, Part A under the heading
"Human Services, Department of," develop a teenage suicide prevention
strategy and a model suicide prevention program to be presented in the
secondary schools of the State. Development of such a program must include
preparation of relevant educational materials that must be distributed in the
schools.
§3008. Sexual activity with recipient of services prohibited
A person who owns, operates or is an employee of an organization,
program or residence that is operated, administered, licensed or funded by the
Department of Behavioral and Developmental Services or the Department of Human Services
may not engage in a sexual act, as defined in Title 17-A, section 251,
subsection 1, paragraph C, with another person or subject another person to
sexual contact, as defined in Title 17-A, section 251, subsection 1, paragraph
D, if the other person, not the actor's spouse, is a person with mental illness
who receives therapeutic, residential or habilitative
services from the organization, program or residence. [
§3010. Access to mental health services (REALLOCATED FROM
TITLE 34-B, SECTION 3009)
Any money that is identified as net General Fund savings through
legislative actions or through departmental administrative actions due to the
closure of or diminution of services at a state mental health institution or to
lowered administrative costs within the department must be used to provide
mental health services to persons in need of those services in other
appropriate settings and programs, including, but not limited to,
community-based mental health programs. For the purposes of this section, "net
General Fund savings" means total savings in the General Fund projected to
be available due to a series of specific actions less any cost or liability
resulting from implementing those actions.
Subchapter 2: STATE
MENTAL HEALTH INSTITUTES
§3201. Maintenance
The commissioner shall maintain 2 state mental health institutes
for the mentally ill, one at
§3202. Superintendent
1. Chief administrative officer. The chief
administrative officer of each state mental health institute is called the
superintendent.
2. Qualifications. To be eligible to be appointed superintendent,
a person shall be a qualified psychiatrist, qualified hospital administrator,
qualified psychologist or a person with a master's degree in social work,
public administration or public health.
3. Appointment. The commissioner shall appoint the
superintendent of each state mental health institute. The Governor shall
establish the salary of each superintendent.
A. The commissioner shall give due consideration to the
appointee's qualifications and experience in administration and to the
appointee's qualifications and experience in health matters.
4. Duties. The superintendents of the state mental health
institutes have the following duties.
A. The Superintendent of the Bangor Mental Health Institute has
general superintendence of the Bangor Mental Health Institute and its grounds
under the direction of the commissioner and shall receive all persons legally
sent to the Bangor Mental Health Institute who are in need of special care and
treatment, if accommodations permit.
B. The Superintendent of the Augusta Mental Health Institute has
general superintendence of the Augusta Mental Health Institute and its grounds
under the direction of the commissioner and shall receive all persons legally
sent to the Augusta Mental Health Institute who are in need of special care and
treatment, if accommodations permit.
Subchapter
3: COMMUNITY MENTAL HEALTH SERVICES
Article 1: GENERAL
PROVISIONS
§3601. Definitions
As used in this subchapter, unless the context otherwise
indicates, the following terms have the following meanings.
1. Agency. "Agency" means a person, firm,
association or corporation, but does not include the individual or corporate
professional practice of one or more psychologists or psychiatrists.
1-A. Case management services. "Case management
services" means those services which assist an individual in gaining
access to and making effective use of the range of medical, psychological and
other related services available to them.
1-B. Long-term mentally ill. "Long-term
mentally ill" means persons who suffer certain mental or emotional
disorders, such as organic brain syndrome, schizophrenia, recurrent depressive
and manic-depressive disorders, paranoid and other psychoses, plus other
disorders which may become chronic, that erode or prevent the capacities in
relation to 3 or more of the primary aspects of daily life, such as personal
hygiene and self-care, self-direction, interpersonal relationships, social
transactions, learning, recreation and economic self-sufficiency. While these
persons may be at risk of institutionalization, there is no requirement that
these persons are or have been residents of institutions providing mental
health services.
2. Mental health services. "Mental health services"
means out-patient counseling, other psychological, psychiatric, diagnostic or
therapeutic services and other allied services.
§3602. Purpose
The purpose of this subchapter is to expand community mental
health services, encourage participation in a program of community mental
health services by persons in local communities, obtain better understanding of
the need for those services and secure aid for programs of community mental
health services by state aid and local financial support.
§3603. Commissioner's duties
The commissioner shall promulgate rules, according to the Maine
Administrative Procedure Act, Title 5, chapter 375,
relating to the administration of the services authorized by this subchapter
and to licensing under this subchapter.
§3604. Commissioner's powers
1. Provision of services. The commissioner may provide mental
health services throughout the State and for that purpose may cooperate with
other state agencies, municipalities, persons, unincorporated associations and nonstock corporations.
2. Funding sources. The commissioner may receive and use for the
purpose of this subchapter money appropriated by the State, grants by the
Federal Government, gifts from individuals and gifts from any other
sources.
3. Grants. The commissioner may make grants of funds to
any state or local governmental unit, or branch of a governmental unit, or to a
person, unincorporated association or nonstock
corporation, which applies for the funds, to be used in the conduct of its
mental health services.
A. The programs administered by the person or entity shall provide
for adequate standards of professional services in accordance with state
statutes.
B. The commissioner may require the person or entity applying for
funds to produce evidence that appropriate local, governmental and other
funding sources have been sought to assist in the financing of its mental
health services.
C. After negotiation with the person or entity applying for funds,
the commissioner may execute a contract or agreement for the provision of
mental health services which reflects the commitment by the person or entity of
local, governmental and other funds to assist in the financing of its mental
health services.
D. Beyond the commissioner's assuring through program monitoring
and auditing activities that an equitable distribution of the funds committed
by contract or agreement to assist in the financing of mental health services
are actually provided, it shall be the prerogative of the person or entity
providing services to apportion other nonstate funds
in an appropriate manner in accordance with its priorities, service contracts
and applicable provisions of law.
E. Any new contract must be awarded through a request-for-proposal
procedure and any contract of $500,000 per year or more that is renewed must be
awarded through a request-for-proposal procedure at least every 8 years, except
for the following.
(1) A renewal contract with a provider is not subject to the
request-for-proposal procedure requirement if the contract granted under this
subsection is performance based.
(2) Notwithstanding subparagraph (1), the department shall subject
a contract to a request-for-proposal procedure when necessary to comply with
paragraph G.
F. The commissioner shall establish a procedure to obtain
assistance and advice from consumers of mental health services regarding the
selection of contractors when requests for proposals are issued.
G. A contract under this subsection that is subject to renewal
must be awarded through a request-for-proposal procedure if the department
determines that:
(1) The provider has breached the
existing contract;
(2) The provider has failed to correct
deficiencies cited by the department;
(3) The provider is inefficient or ineffective in the delivery of
services and is unable or unwilling to improve its performance within a reasonable
time; or
(4) The provider can not or will not respond to a reconfiguration
of service delivery requested by the department.
4. Cooperative planning required; grant recipients and
correctional authorities. As a condition for receipt of state mental health funding,
providers of community mental health services to persons with serious mental
illness shall develop with state and local correctional authorities
cooperative plans for the provision of services to those persons. These plans
must include at least the following:
A. Procedures for timely referral of
persons with serious mental illness to community-based mental health
services;
B. Provision for the treatment and support of persons with serious
mental illness in correctional facilities and commitment of funds within
available resources; and
C. Procedures for referrals of individuals with serious mental
illness to local providers of comprehensive mental health services following
release from correctional facilities, including mechanisms for developing
comprehensive treatment plans before the release from correctional facilities
of persons with serious mental illness.
Providers of community mental health services and other public
providers of comprehensive services to persons with serious mental illness that
fail to participate in the development of plans to serve this population are
not eligible for state funding for the provision of mental health services.
5. Exclusion. Beginning October 1, 1996, an entity that
applies for the award or renewal of a grant or contract for the provision of
mental health services must be a participating member of the quality
improvement council or the local service network, as defined in section 3607,
for the region of the State subject to that grant or contract or an interested
party assisting a council pursuant to section 3607, subsection 8.
§3605. Governmental agencies (REPEALED)
§3606. Licenses (REPEALED)
§3607. Quality improvement councils
The department
shall establish 7 quality improvement councils, called area councils, to
evaluate the delivery of mental health services to children and adults under
the authority of the department or who have a major mental illness, and to
advise the department regarding quality assurance, systems development and the
delivery of mental health services to children and adults under the authority
of the department. The department shall also establish 2 institute councils to
evaluate the delivery of mental health services at the 2 state mental health
institutes and advise the department regarding quality assurance, operations
and functions of the mental health institutes.
1. Definitions. As used in this section and sections 3608 and 3609,
unless the context otherwise indicates, the following terms have the following
meanings.
A. "Community members" means
persons who represent the composition of the community at large.
B. "Consumer" means a recipient or former recipient of
publicly funded mental health services or an adult who has or had a major
mental illness.
C. "Council" means a quality improvement council
approved by the commissioner pursuant to subsection 2, paragraph D.
D. "Family member" means a
relative, guardian or household member of an adult consumer.
D-1. "Major mental illness" means a diagnosis of mental
illness as defined by the department. Rules adopted pursuant to this paragraph
are routine technical rules as defined by Title 5, chapter 375, subchapter
II-A.
E. "Network" means a local
service network established pursuant to section 3608.
F. "Parent" means a parent or a person who has acted in
that capacity or assumed that role for a consumer under
18 years of age.
G. "Regional director" means a regional director
appointed pursuant to section 1204, subsection 2, paragraph C, subparagraph (10).
H. "Service provider" or "provider" means a
person or organization providing publicly funded mental health services to
consumers or family members.
2. Councils established. There is established an approved quality
improvement council in each area designated in subsection 3, referred to in
this section as "area council," and for the Augusta Mental Health
Institute and the Bangor Mental Health Institute, referred to in this section
as "institute council." The councils operate under the authority of
the department. Each council consists of the initial members chosen pursuant to
paragraph B, the members subsequently chosen pursuant to council bylaws, the
members of the network established pursuant to section 3608 and any advisory
committees established pursuant to subsection 8.
A. The councils shall assist the department and providers with
systems planning and needs assessment at the local level and community
education and quality improvement activities that must be implemented at the
local level. Through the program evaluation teams the councils shall perform
program assessment.
B. Each area council consists of 24 members whose membership takes
into consideration local geographic factors. The membership on each council
consists of 4 adult consumers, 4 family members, 4 parents, 6 community members
and 6 service providers. Any resident of a council area may make
recommendations regarding initial membership on the local area council to the
commissioner, who shall make the appointments by
C. Each institute council consists of 16 members whose membership
takes into consideration local geographic factors. The membership on each
council consists of 4 consumers, 4 family members, 4 community members and 4
providers. Any resident or former resident of the Augusta Mental Health
Institute or the Bangor Mental Health Institute, any family member of a
resident or former resident, any community member in the Augusta or Bangor
region and any service provider at those institutes may make recommendations
regarding membership on the institute councils to the commissioner, who shall
make the initial appointments by June 1, 1996. The commissioner or a designee
of the commissioner shall convene the first meeting of each council by
D. The councils shall adopt bylaws that establish the terms and qualifications
of membership, the selection of members succeeding the initial members and the
internal governance and rules. The commissioner shall approve the bylaws of
each council prior to designating it as an approved council.
E. Under the supervision of each council, a program evaluation
team of nonprovider members shall review each program
funded by the department on a periodic basis. The results of the review must be
reported to the council and the regional director for the department and must
be considered in funding decisions by the department.
3. Areas. An area council shall operate in each of the
following geographic areas:
A.
B.
C.
D.
E.
F.
G.
4. Accountability. Each area council is accountable to the
regional director. The institute councils are accountable to the director of
facility management within the department.
5. Duties. By
A. Case management, including advocacy activities and techniques
for identifying and providing services to consumers at risk. Case management
services must be independent of providers whenever possible;
B. Medication management, outpatient
therapy, substance abuse treatment and other outpatient services;
C. In-home flexible supports, home-based crisis assistance, mobile
outreach, respite and inpatient capacity and other crisis prevention and
resolution services
D. Housing, in-home support services, tenant training and support
services, home ownership options and supported housing; and
E. Rehabilitation and vocational services, including transitional
employment, supported education and job finding and coaching.
6. Regional directors; responsibilities. Each regional director
is responsible for the operation of the area councils within the region and for
dispute resolution within those area councils. Each regional director shall receive
reports from the councils, consider the recommendations of the councils and
report periodically to the commissioner on their performance.
7. Institute council directors; responsibilities. The director of
facility management within the department is responsible for the operation of
the councils of the Augusta Mental Health Institute and the Bangor Mental
Health Institute and for dispute resolution within those institute councils.
The director shall receive reports from the councils, consider the recommendations
of the councils and report periodically to the commissioner on their
performance.
8. Public outreach. Each council shall solicit the participation of
interested consumers, families, parents, community members and service
providers to serve on the council, the network or advisory committees.
9. Participation. State-operated direct service programs shall
participate in the activities of the councils.
10. Institute councils. Within the limitations of state and
federal law, adequate information must be provided by the mental health
institutes and the department to the institute councils to perform their
duties, including but not limited to:
A. Input into the annual budgets of the
mental health institutes;
B. Achievement of the goals and
objectives of the department as they pertain to the mental health
institutes;
C. Compliance with all professional
accreditation standards applicable to the mental health institutes;
D. Review, oversight and assessment of services and programs
provided to residents of the mental health institutes and their families;
E. Review of personnel policies and employment patterns, including
staffing requirements and patterns, the use of overtime assignments and
training and job development;
F. Input into public relations efforts of the department and the
mental health institutes and community education initiatives; and
G. Monitoring building and grounds maintenance and safety and risk
management on the campuses of the mental health institutes.
§3608. Local service networks
The department shall establish and oversee networks to participate
with the area councils, as defined in section 3607, subsection 2, in the
delivery of mental health services to children and adults under the authority of
the department. A network consists of organizations providing mental health
services funded by the General Fund and Medicaid in the corresponding area
specified in section 3607, subsection 3. The local service networks must be
established and operated in accordance with standards that are consistent with
standards adopted by accredited health care organizations and other standards
adopted by the department to establish and operate networks. Oversight must
include, but is not limited to, establishing and overseeing protocols, quality
assurance, writing and monitoring contracts for service, establishing outcome
measures and ensuring that each network provides an integrated system of care.
The department may adopt rules to carry out this section. Rules adopted
pursuant to this section are major substantive rules as defined in Title 5,
chapter 375, subchapter II-A. This section may not be construed to supersede
the authority of the Department of Human Services as the single state Medicaid
agency under the Social Security Act, Title XII or to affect the professional
standards and practices of nonnetwork
providers.
1. Responsibilities. Each network shall perform the following
responsibilities:
A. Deliver and coordinate 24-hour crisis response services accessible
through a single point of entry to adults with mental illness and to children
and adolescents with severe emotional disturbance and their families;
B. Ensure continuity, accountability and
coordination regarding service delivery;
C. Participate in a uniform client data
base;
D. In conjunction with the regional
director and the area council, conduct planning activities; and
E. Develop techniques for identifying and
providing services to consumers at risk.
2. Accountability. Each network is accountable to the area council
and the regional director.
3. Public outreach. Each network shall solicit the participation of
interested providers to serve on the area council, the network or advisory
committees.
4. Participation. State-operated direct service programs shall
participate in the activities of the networks.
5. Data collection. The department shall collect data to assess the
capacity of the local service networks, including, but not limited to, analyses
of utilization of mental health services and the unmet needs of persons
receiving publicly funded mental health services.
§3609. Statewide quality improvement council
Each council shall designate a member and an alternate to serve on
a statewide quality improvement council to advise the commissioner on issues of
system implementation that have statewide impact. The commissioner shall
appoint other members to serve on the council.
§3610. Safety net services
The department is responsible for providing a safety net of adult
mental health services for people with major mental illness who the department
or its designee determines can not otherwise be served by the local service
networks. The department may develop contracts to deliver safety net services
if the department determines contracts to be appropriate and cost-effective.
The state-operated safety net must include, but is not limited to:
1. Beds. Backup emergency hospital beds for people requiring medical
stabilization, assessment or treatment;
2. Treatment. Intermediate and long-term treatment for people
who need long-term structured care;
3. Forensic services. Forensic services;
4. Intensive case management. Intensive case
management; and
5. Other services. Other services determined by the commissioner
to be needed.
Article 2: CRISIS
INTERVENTION PROGRAM
§3621. Crisis Intervention Program established
The department shall establish the Crisis Intervention Program to
serve Penobscot, Hancock, Piscataquis
and
1. Emergency room services. Crisis intervention and
psychiatric emergency services based in a hospital emergency room;
2. Outreach services. Outreach services and crisis intervention
beyond the hospital setting; and
3. Telephone hot-line services. A community-based
telephone crisis intervention hot-line offering 24-hour, 7-days-a-week
counseling, consultation, evaluation, treatment and referral services.
§3622. Crisis intervention team
1. Established. A community-based crisis intervention team
shall be established to provide crisis intervention on a 24-hour, 7-days-a-week
basis to mentally ill people and to provide crisis intervention training for
emergency room personnel.
2. Qualifications. The team shall be comprised of qualified mental
health professionals with training and experience in assessment and
intervention with mentally ill people in a crisis. In addition, the team
members shall have a working knowledge of case management, the mental health
system and area resources.
§3623. Region II Crisis Intervention Program Advisory Board
(REPEALED)
§3624. Region III Crisis Intervention Program Advisory Board
(REPEALED)
Subchapter
4: HOSPITALIZATION
Article 1: GENERAL
PROVISIONS
§3801. Definitions
As used in this subchapter, unless the context otherwise
indicates, the following terms have the following meanings.
1. Hospital. "Hospital" means:
A. A state mental health institute;
or
B. A nonstate
mental health institution.
1-A. Designated nonstate mental
health institution. "Designated nonstate mental health
institution" means a nonstate mental health
institution that is under contract with the department for receipt by the
hospital of involuntary patients.
1-B. Least restrictive form of transportation. "Least restrictive
form of transportation" means the vehicle used for transportation and any
restraining devices that may be used during transportation that impose the
least amount of restriction, taking into consideration the stigmatizing impact
upon the individual being transported.
2. Licensed physician. "Licensed physician" means a
person licensed under the laws of the State to practice medicine or osteopathy
or a medical officer of the Federal Government while in this State in the
performance of his official duties.
3. Licensed clinical psychologist. "Licensed clinical
psychologist" means a person licensed under the laws of the State as a
psychologist and who practices clinical psychology.
4. Likelihood of serious harm. "Likelihood of
serious harm" means:
A. A substantial risk of physical harm to the person himself as
manifested by evidence of recent threats of, or attempts at, suicide or serious
bodily harm to himself and, after consideration of less restrictive treatment
settings and modalities, a determination that community resources for his care
and treatment are unavailable;
B. A substantial risk of physical harm to other persons as
manifested by recent evidence of homicidal or other violent behavior or recent
evidence that others are placed in reasonable fear of violent behavior and
serious physical harm to them and, after consideration of less restrictive
treatment settings and modalities, a determination that community resources for
his care and treatment are unavailable; or
C. A reasonable certainty that severe physical or mental impairment
or injury will result to the person alleged to be mentally ill as manifested by
recent evidence of his actions or behavior which demonstrate his inability to
avoid or protect himself from such impairment or injury, and, after
consideration of less restrictive treatment settings and modalities, a
determination that suitable community resources for his care are
unavailable.
5. Mentally ill person. "Mentally ill person" means a
person having a psychiatric or other disease which substantially impairs his
mental health, including persons suffering from the effects of the use of
drugs, narcotics, hallucinogens or intoxicants, including alcohol, but not
including mentally retarded or sociopathic persons.
6. Nonstate mental health
institution. "Nonstate mental health
institution" means a public institution, a private institution or a mental
health center, which is administered by an entity other than the State and
which is equipped to provide inpatient care and treatment for the mentally ill.
7. Patient. "Patient" means a person under
observation, care or treatment in a hospital or residential care facility
pursuant to this subchapter.
8. Residential care facility. "Residential care
facility" means a licensed or approved boarding care, nursing care or
foster care facility which supplies supportive residential care to individuals
due to their mental illness.
9. State mental health institute. "State mental
health institute" means the Augusta Mental Health Institute or the Bangor
Mental Health Institute.
§3802. Commissioner's powers
The commissioner may:
1. Rules. Promulgate such rules, not inconsistent with
this subchapter, as he may find to be reasonably necessary for proper and
efficient hospitalization of the mentally ill;
2. Investigation. Investigate, by personal visit, complaints made
by any patient or by any person on behalf of a patient;
3. Visitation. Visit each hospital or residential care
facility regularly to review the commitment procedures of all new patients
admitted between visits;
4. Reports. Require reports from the chief administrative
officer of any hospital or residential care facility relating to the admission,
examination, diagnosis, release or discharge of any patient; and
5. Forms. Prescribe the form of applications, records,
reports and medical certificates provided for under this subchapter and
prescribe the information required to be contained in them.
§3803. Patient's rights
A patient in a hospital or residential care facility under this
subchapter has the following rights.
1. Civil rights. Every patient is entitled to exercise all civil
rights, including, but not limited to, the right to civil service status, the
right to vote, rights relating to the granting, renewal, forfeiture or denial of
a license, permit, privilege or benefit pursuant to any law, the right to enter
into contractual relationships and the right to manage his property, unless:
A. The chief administrative officer of the hospital or residential
care facility determines that it is necessary for the medical welfare of the
patient to impose restrictions on the exercise of these rights and, if
restrictions are imposed, the restrictions and the reasons for them shall be
made a part of the clinical record of the patient;
B. A patient has been adjudicated
incompetent and has not been restored to legal capacity; or
C. The exercise of these rights is specifically restricted by
other statute or rule, but not solely because of the fact of admission to a hospital
or residential care facility.
2. Humane care and treatment. Every patient is
entitled to humane care and treatment and, to the extent that facilities,
equipment and personnel are available, to medical care and treatment in
accordance with the highest standards accepted in medical practice.
3. Restraints and seclusion. Restraint, including
any mechanical means of restricting movement, and seclusion, including
isolation by means of doors which cannot be opened by the patient, may not be
used on a patient, unless the chief administrative officer of the hospital or
residential care facility or his designee determines that either is required by
the medical needs of the patient.
A. The chief administrative officer of the hospital or facility
shall record and make available for inspection every use of mechanical
restraint or seclusion and the reasons for its use.
B. The limitation of the use of seclusion
in this section does not apply to maximum security installations.
4. Communication. Patient communication rights are as follows.
A. Every patient is entitled to communicate by sealed envelopes
with the department, a member of the clergy of his choice, his attorney and the
court which ordered his hospitalization, if any.
B. Every patient is entitled to
communicate by mail in accordance with the rules of the hospital.
5. Visitors. Every patient is entitled to receive visitors
unless definitely contraindicated by his medical condition, except that he may
be visited by a member of the clergy of his choice or his attorney at any
reasonable time.
6. Sterilization. A patient may not be sterilized except in
accordance with chapter 7.
§3804. Habeas corpus
Any person detained pursuant to this subchapter is entitled to the
writ of habeas corpus, upon proper petition by himself or by a friend to any
justice generally empowered to issue the writ of habeas corpus in the county in
which the person is detained.
§3805. Prohibited acts; penalty
1. Unwarranted hospitalization. A person is guilty of causing
unwarranted hospitalization, if he willfully causes the unwarranted
hospitalization of any person under this subchapter.
2. Denial of rights. A person is guilty of causing a denial of
rights if he willfully causes the denial to any person of any of the rights
accorded to him by this subchapter.
3. Penalty. Causing unwarranted hopitalization
or causing a denial of rights is a Class C crime.
Article
2: VOLUNTARY HOSPITALIZATION
§3831. Admission
A hospital for the mentally ill may admit on an informal voluntary
basis for care and treatment of a mental illness any person desiring admission
or the adult ward of a legally appointed guardian, subject to the following
conditions.
1. Availability of accommodations. Except in cases of
medical emergency, voluntary admission is subject to the availability of
suitable accommodations.
2. Standard hospital information. Standard hospital
information may be elicited from the person if, after examination, the chief
administrative officer of the hospital deems the person suitable for admission,
care and treatment.
3. Persons under 18 years of age. Any person under 18
years of age must have the consent of his parent or guardian.
4. State mental health institute. Any person under 18 years
of age must have the consent of the commissioner for admission to a state
mental health institute.
5. Adults under guardianship. An adult ward may be
admitted on an informal voluntary basis only if his legally appointed guardian
consents to the admission and the ward makes no objection to the
admission.
6. Adults with advance health care directives. An adult with an
advance health care directive authorizing mental health hospital treatment may
be admitted on an informal voluntary basis if the conditions specified in the
advance health care directive for the directive to be effective are met in
accordance with the method stated in the advance health care directive or, if
no such method is stated, as determined by a physician or a psychologist. If no
conditions are specified in the advance health care directive as to how the
directive becomes effective, the person may be admitted on an informal
voluntary basis if the person has been determined to be incapacitated pursuant
to Title 18-A, Article 5, Part 8. A person may be admitted only if the person
does not at the time object to the admission or, if the person does object, if
the person has directed in the advance health care directive that admission to
the hospital may occur despite that person's objections. The duration of the
stay in the hospital of a person under this subsection may not exceed 5 working
days. If at the end of that time the chief administrative officer of the
hospital recommends further hospitalization of the person, the chief administrative
officer shall proceed in accordance with section 3863, subsection 5.
This subsection does not create an affirmative obligation of a
hospital to admit a person consistent with the person's advance health care
directive. This subsection does not create an affirmative obligation on the
part of the hospital or treatment provider to provide the treatment consented
to in the person's advance health care directive if the physician or
psychologist evaluating or treating the person or the chief administrative
officer of the hospital determines that the treatment is not in the best
interest of the person.
§3832. Freedom to leave
1. Patient's right. A patient admitted under section 3831 is free
to leave the hospital at any time after admission without undue delay following
examination by a licensed physician or a licensed clinical psychologist, except
that admission of the person under section 3863 is not precluded, if at any
time such an admission is considered necessary in the interest of the person and
of the community.
2. Notice. The chief administrative officer of the
hospital shall cause every patient admitted under section 3831 to be informed,
at the time of admission, of:
A. His status as an informally admitted
patient; and
B. His freedom to leave the hospital
under this section.
Article
3: INVOLUNTARY HOSPITALIZATION
§3861. Reception of involuntary patients
1. Nonstate mental health
institution. The chief administrative officer of a nonstate
mental health institution may receive for observation, diagnosis, care and
treatment in the institution any person whose admission is applied for under
any of the procedures in this subchapter. An admission may be made under the
provisions of section 3863 only if the certifying examination conducted pursuant
to section 3863, subsection 2 was completed no more than 2 days before the date
of admission.
A. The institution, any person contracting with the institution
and any of its employees when admitting, treating or discharging a patient
under the provisions of sections 3863 and 3864 under a contract with the
department, for purposes of civil liability, must be deemed to be a
governmental entity or an employee of a governmental entity under the Maine
Tort Claims Act, Title 14, chapter 741.
B. Patients with a diagnosis of mental illness or psychiatric
disorder in nonstate mental health institutions that
contract with the department under this subsection are entitled to the same
rights and remedies as patients in state mental health institutes as conferred
by the constitution, laws, regulations and rules of this State and of the
C. Before contracting with and approving the admission of
involuntary patients to a nonstate mental health
institution, the department shall require the institution to:
(1) Comply with all applicable
regulations;
(2) Demonstrate the ability of the institution to comply with
judicial decrees as those decrees relate to services already being provided by
the institution; and
(3) Coordinate and integrate care with other
community-based services.
D. Beginning
2. State mental health institute. The chief
administrative officer of a state mental health institute:
A. May receive for observation, diagnosis, care and treatment in
the hospital any person whose admission is applied for under section 3831 or
3863 if the certifying examination conducted pursuant to section 3863,
subsection 2 was completed no more than 2 days before the date of admission;
and
B. May receive for observation, diagnosis, care and treatment in
the hospital any person whose admission is applied for under section 3864 or is
ordered by a court.
Any business entity contracting with the department for
psychiatric physician services or any person contracting with a state mental
health institute or the department to provide services pertaining to the
admission, treatment or discharge of patients under sections 3863 and 3864
within a state institute or any person contracting with a business entity to
provide those services within a state institute is deemed to be a governmental
entity or an employee of a governmental entity for purposes of civil liability
under the Maine Tort Claims Act, Title 14, chapter 741, with respect to the
admission, treatment or discharge of patients within a state institute under
sections 3863 and 3864.
§3862. Protective custody
1. Law enforcement officer's power. If a law enforcement
officer has reasonable grounds to believe, based upon probable cause, that a
person may be mentally ill and that due to that condition the person presents a
threat of imminent and substantial physical harm to that person or to other
persons, or if a law enforcement officer knows that a person has an advance
health care directive authorizing mental health treatment and the officer has
reasonable grounds to believe, based upon probable cause, that the person lacks
capacity, the law enforcement officer:
A. May take the person into protective
custody; and
B. If the law enforcement officer does take the person into protective
custody, shall deliver the person immediately for examination as provided in
section 3863 or, for a person taken into protective custody who has an advance
health care directive authorizing mental health treatment, for examination as
provided in Title 18-A, section 5-802, subsection (d) to determine the
individual's capacity and the existence of conditions specified in the advance
health care directive for the directive to be effective. If the examination
occurs in a hospital emergency room, the examination may be performed by a
licensed physician, a licensed clinical psychologist, a physician's assistant,
a nurse practitioner or a certified psychiatric clinical nurse specialist. If
the examination does not occur in a hospital emergency room, the examination
may be performed only by a licensed physician or licensed clinical
psychologist.
When, in formulating probable cause, the law enforcement officer
relies upon information provided by a 3rd-party informant, the officer shall
confirm that the informant has reason to believe, based upon the informant's
recent personal observations of or conversations with a person, that the person
may be mentally ill and that due to that condition the person presents a threat
of imminent and substantial physical harm to that person or to other persons.
1-A. Law enforcement officer's power.
2. Certificate not executed. If a certificate
relating to the person's likelihood of serious harm is not executed by the
examiner under section 3863, and, for a person who has an advance health care
directive authorizing mental health treatment, if the examiner determines that
the conditions specified in the advance health care directive for the directive
to be effective have not been met or, in the absence of stated conditions, that
the person does not lack capacity, the officer shall:
A. Release the person from protective custody and, with the
person's permission, return the person forthwith to the person's place of
residence, if within the territorial jurisdiction of the officer;
B. Release the person from protective custody and, with the
person's permission, return the person forthwith to the place where the person
was taken into protective custody; or
C. If the person is also under arrest for a violation of law,
retain the person in custody until the person is released in accordance with
the law.
3. Certificate executed. If the certificate is executed by the
examiner under section 3863, the officer shall undertake forthwith to secure
the endorsement of a judicial officer under section 3863 and may detain the
person for a reasonable period of time, not to exceed 18 hours, pending that
endorsement.
3-A. Advance health care directive effect. If the examiner
determines that the conditions specified in the advance health care directive
for the directive to be effective have been met or, in the absence of stated
conditions, that the person lacks capacity, the person may be treated in
accordance with the terms of the advance health care directive.
4. Transportation costs. The costs of transportation under this
section must be paid in the manner provided under section 3863. Any person
transporting an individual to a hospital under the circumstances described in
this section shall use the least restrictive form of transportation available
that meets the security needs of the situation.
§3863. Emergency procedure
A person may be admitted to a mental hospital on an emergency
basis according to the following procedures.
1. Application. Any health officer, law enforcement officer or
other person may make a written application to admit a person to a mental
hospital, subject to the prohibitions and penalities
of section 3805, stating:
A. His belief that the person is mentally
ill and, because of his illness, poses a likelihood of serious harm;
and
B. The grounds for this belief.
2. Certifying examination. The written application must be
accompanied by a dated certificate, signed by a licensed physician, physician's
assistant, certified psychiatric clinical nurse specialist, nurse practitioner
or a licensed clinical psychologist, stating:
A. The physician, physician's assistant, certified psychiatric
clinical nurse specialist, nurse practitioner or psychologist has examined the
person on the date of the certificate; and
B. The physician, physician's assistant, certified psychiatric
clinical nurse specialist, nurse practitioner or psychologist is of the opinion
that the person is mentally ill and, because of that illness, poses a
likelihood of serious harm.
2-A. Custody agreement. A state, county or municipal law
enforcement agency may meet with representatives of those public and private
health practitioners and health care facilities that are willing and qualified
to perform the certifying examination required by this section in order to
attempt to work out a procedure for the custody of the person who is to be
examined while that person is waiting for that examination. Any agreement must
be written and signed by and filed with all participating parties. In the event
of failure to work out an agreement that is satisfactory to all participating
parties, the procedures of section 3862 and this section continue to
apply.
As part of an agreement the law enforcement officer requesting
certification may transfer protective custody of the person for whom the
certification is requested to another law enforcement officer, a health officer
if that officer agrees or the chief administrative officer of a public or
private health practitioner or health facility or the chief administrative
officer's designee. Any arrangement of this sort must be part of the written
agreement between the law enforcement agency and the health practitioner or
health care facility. In the event of a transfer, the law enforcement officer
seeking the transfer shall provide the written application required by this
section.
A person with mental illness may not be detained or confined in
any jail or local correctional or detention facility, whether pursuant to the
procedures described in section 3862, pursuant to a custody agreement, or under
any other circumstances, unless that person is being lawfully detained in
relation to or is serving a sentence for commission of a crime.
3. Judicial review. The application and accompanying certificate
must be reviewed by a Justice of the Superior Court, Judge of the District
Court, Judge of Probate or a justice of the peace.
A. If the judge or justice finds the application and accompanying
certificate to be regular and in accordance with the law, the judge or justice
shall endorse them and promptly send them to the admitting mental hospital. For
purposes of carrying out the provisions of this section, an endorsement
transmitted by facsimile machine has the same legal effect and validity as the
original endorsement signed by the judge or justice.
B. A person may not be held against the person's will in the
hospital under this section, whether informally admitted under section 3831 or
sought to be involuntarily admitted under this section, unless the application
and certificate have been endorsed by a judge or justice, except that a person
for whom an examiner has executed the certificate under subsection 2 may be
detained in a hospital for a reasonable period of time, not to exceed 18 hours,
pending endorsement by a judge or justice, if:
(1) For a person informally admitted under section 3831, the chief
administrative officer of the hospital undertakes to secure the endorsement
immediately upon execution of the certificate by the examiner; and
(2) For a person sought to be involuntarily admitted under this
section, the person or persons transporting the person sought to be
involuntarily admitted to the hospital undertake to secure the endorsement
immediately upon execution of the certificate by the examiner.
C. Notwithstanding paragraph B, subparagraphs (1) and (2), a
person sought to be admitted informally under section 3831 or involuntarily
under this section may be transported to a hospital and held for evaluation and
treatment at a hospital pending judicial endorsement of the application and
certificate if the endorsement is obtained between the soonest available hours
of 7:00 a.m. and 11:00 p.m.
4. Custody and transportation. Custody and
transportation under this section are governed as follows.
A. Upon endorsement of the application and certificate by the
judge or justice, a law enforcement officer or other person designated by the
judge or justice may take the person into custody and transport that person to
the hospital designated in the application. Transportation of an individual to
a hospital under these circumstances must involve the least restrictive form of
transportation available that meets the clinical needs of that
individual.
B. The Department of Behavioral and Developmental Services is
responsible for any transportation expenses under this section, including
return from the hospital if admission is declined. The department shall utilize
any 3rd-party payment sources that are available.
C. When a person who is under a sentence or lawful detention
related to commission of a crime and who is incarcerated in a jail or local
correctional or detention facility is admitted to a hospital under any of the
procedures in this subchapter, the county where the incarceration originated
shall pay all expenses incident to transportation of the person between the
hospital and the jail or local correctional or detention facility.
5. Continuation of hospitalization. If the chief
administrative officer of the hospital recommends further hospitalization of
the person, the chief administrative officer shall determine the suitability of
admission, care and treatment of the patient as an informally admitted patient,
as described in section 3831.
A. If the chief administrative officer of the hospital determines
that admission of the person as an informally admitted patient is suitable, the
chief administrative officer shall admit the person on this basis, if the
person so desires.
B. If the chief administrative officer of the hospital determines
that admission of the person as an informally admitted patient is not suitable,
or if the person declines admission as an informally admitted patient, the
chief administrative officer of the hospital may seek involuntary commitment of
the patient by filing an application for the issuance of an order for
hospitalization under section 3864, except that if the hospital is a designated
nonstate mental health institution and if the patient
was admitted under the contract between the hospital and the department for
receipt by the hospital of involuntary patients, then the chief administrative
officer may seek involuntary commitment only by requesting the commissioner to
file an application for the issuance of an order for hospitalization under
section 3864.
(1) The application must be made to the District Court having
territorial jurisdiction over the hospital to which the person was admitted on
an emergency basis.
(2) The application must be filed within 5 days from the admission
of the patient under this section, excluding the day of admission and any
Saturday, Sunday or legal holiday.
C. If neither readmission nor application to the District Court is
effected under this subsection, the chief administrative officer of the hospital
to which the person was admitted on an emergency basis shall discharge the
person immediately.
6. Notice. Upon admission of a person under this section,
and after consultation with the person, the chief administrative officer of the
hospital shall notify, as soon as possible regarding the fact of admission, the
person's:
A. Guardian, if known;
B. Spouse;
C. Parent;
D. Adult child; or
E. One of next of kin or a friend, if
none of the listed persons exists.
If the chief administrative officer has reason to believe that
notice to any individual in paragraphs A to E would pose risk of harm to the
person admitted, then notice may not be given to that individual.
7. Post-admission examination. Every patient admitted
to a hospital shall be examined as soon as practicable after his admission.
A. The chief administrative officer of the hospital shall arrange
for examination by a staff physician or licensed clinical psychologist of every
patient hospitalized under this section.
B. The examiner may not be the certifying examiner under this
section or under section 3864.
C. If the post-admission examination is not held within 24 hours
after the time of admission, or if a staff physician or licensed clinical
psychologist fails or refuses after the examination to certify that, in his
opinion, the person is mentally ill and due to his mental illness poses a
likelihood of serious harm, the person shall be immediately discharged.
§3864. Judicial procedure and commitment
1. Application. An application to the District Court to admit a
person to a mental hospital, filed under section 3863, subsection 5, paragraph
B, shall be accompanied by:
A. The emergency application under
section 3863, subsection 1;
B. The accompanying certificate of the physician
or psychologist under section 3863, subsection 2;
C. The certificate of the physician or
psychologist under section 3863, subsection 7 that:
(1) The physician or psychologist has
examined the patient; and
(2) It is the opinion of the physician or psychologist that the
patient is a mentally ill person and, because of that patient's illness, poses
a likelihood of serious harm;
D. A written statement, signed by the chief administrative officer
of the hospital, certifying that a copy of the application and the accompanying
documents have been given personally to the patient and that the patient and
the patient's guardian or next of kin have been notified of the patient's right
to retain an attorney or to have an attorney appointed, of the patient's right
to select or to have the patient's attorney select an independent examiner and
regarding instructions on how to contact the District Court; and
E. A copy of the notice and instructions
given to the patient.
2. Detention pending judicial determination. Notwithstanding any
other provisions of this subchapter, a person, with respect to whom an
application for the issuance of an order for hospitalization has been filed,
may not be released or discharged during the pendency
of the proceedings, unless:
A. The District Court orders release or discharge upon the request
of the patient, or the patient's guardian, parent, spouse or next of kin;
B. The District Court orders release or discharge upon the report
of the applicant that the person may be discharged with safety;
C. A court orders release or discharge
upon a writ of habeas corpus under section 3804; or
D. Upon request of the commissioner, the District Court orders the
transfer of a patient in need of more specialized treatment to another
hospital. In the event of a transfer, the court shall transfer its file to the
District Court having territorial jurisdiction over the receiving
hospital.
3. Notice of receipt of application. The giving of notice of
receipt of application and date of hearing under this section is governed as
follows.
A. Upon receipt by the District Court of the application and
accompanying documents specified in subsection 1, the court shall cause written
notice of the application and date of hearing:
(1) To be mailed within 2 days of filing to the
person; and
(2) To be mailed to the person's guardian, if known, and to the
person's spouse, parent or one of the person's adult children or, if none of
these persons exist or if none of those persons can be located, to one of the
person's next of kin or a friend, except that if the chief administrative
officer has reason to believe that notice to any of these individuals would
pose risk of harm to the person who is the subject of the application, notice
to that individual may not be given.
B. A docket entry is sufficient evidence
that notice under this subsection has been given.
4. Examination. Examinations under this section are governed as
follows.
A. Upon receipt by the District Court of the application and the
accompanying documents specified in subsection 1 and at least 3 days after the
person who is the subject of the examination was notified by the hospital of
the proceedings and of that person's right to retain counsel or to select an
examiner, the court shall cause the person to be examined by 2 examiners.
(1) Each examiner must be either a
licensed physician or a licensed clinical psychologist.
(2) One of the examiners must be a physician or psychologist
chosen by the person or by that person's counsel, if the chosen physician or
psychologist is reasonably available.
(3) Neither examiner appointed by the court may be the certifying
examiner under section 3863, subsection 2 or 7.
B. The examination shall be held at the hospital or at any other
suitable place not likely to have a harmful effect on the mental health of the
person.
C. If the report of the examiners is to the effect that the person
is not mentally ill or does not pose a likelihood of serious harm, the
application shall be ordered discharged forthwith.
D. If the report of the examiners is to the effect that the person
is mentally ill or poses a likelihood of serious harm, the hearing shall be
held on the date, or on the continued date, which the court has set for the
hearing.
5. Hearing. Hearings under this section are governed as
follows.
A. The District Court shall hold a
hearing on the application not later than 15 days from the date of the
application.
(1) On a motion by any party, the hearing may be continued for
cause for a period not to exceed 10 additional days.
(2) If the hearing is not held within the time specified, or
within the specified continuance period, the court shall dismiss the
application and order the person discharged forthwith.
(3) In computing the time periods set
forth in this paragraph, the District Court Civil Rules shall apply.
B. The hearing must be conducted in as informal a manner as may be
consistent with orderly procedure and in a physical setting not likely to have
harmful effect on the mental health of the person. If the setting is outside
the hospital to which the patient is currently admitted, the Department of
Behavioral and Developmental Services shall bear the responsibility and expense
of transporting the patient to and from the hearing. If the patient is to be
admitted to a hospital following the hearing, then the responsible hospital
shall transport the patient to the admitting hospital. If the patient is to be
released following the hearing, then the responsible hospital shall return the
patient to the hospital or, at the patient's request, return the patient to the
patient's place of residence.
C. The court shall receive all relevant and material evidence
which may be offered in accordance with accepted rules of evidence and accepted
judicial dispositions.
(1) The person, the applicant and all other persons to whom notice
is required to be sent shall be afforded an opportunity to appear at the
hearing to testify and to present and cross-examine witnesses.
(2) The court may, in its discretion, receive
the testimony of any other person and may subpoena any witness.
D. The person shall be afforded an opportunity to be represented by
counsel, and, if neither the person nor others provide counsel, the court shall
appoint counsel for the person.
E. In addition to proving that the
patient is a mentally ill individual, the applicant shall show:
(1) By evidence of the patient's actions
and behavior, that the patient poses a likelihood of serious harm; and
(2) That, after full consideration of less restrictive treatment
settings and modalities, inpatient hospitalization is the best available means
for the treatment of the person.
F. In each case, the applicant shall submit to the court, at the
time of the hearing, testimony, including expert psychiatric testimony,
indicating the individual treatment plan to be followed by the hospital staff,
if the person is committed under this section, and shall bear any expense for
witnesses for this purpose.
G. A stenographic or electronic record
shall be made of the proceedings in all judicial hospitalization hearings.
(1) The record and all notes, exhibits
and other evidence shall be confidential.
(2) The record and all notes, exhibits and other evidence shall be
retained as part of the District Court records for a period of 2 years from the
date of the hearing.
H. The hearing shall be confidential and no report of the
proceedings may be released to the public or press, except by permission of the
person or his counsel and with approval of the presiding District Court Judge,
except that the court may order a public hearing on the request of the person
or his counsel.
6. Court findings. Procedures dealing with the District Court's
findings under this section are as follows.
A. The District Court shall so state in the record, if it finds
upon completion of the hearing and consideration of the record:
(1) Clear and convincing evidence that the person is mentally ill
and that the person's recent actions and behavior demonstrate that the person's
illness poses a likelihood of serious harm;
(2) That inpatient hospitalization is the
best available means for treatment of the patient; and
(3) That it is satisfied with the individual treatment plan
offered by the hospital to which the applicant seeks the patient's involuntary
commitment.
B. If the District Court makes the findings described in paragraph
A, subparagraphs 1 and 2, but is not satisfied with the individual treatment
plan as offered, it may continue the case for not longer than 10 days, pending
reconsideration and resubmission of an individual treatment plan by the
hospital.
7. Commitment. Upon making the findings described in subsection
6, the court may order commitment to a hospital for a period not to exceed 4
months in the first instance and not to exceed one year after the first and all
subsequent hearings.
A. The court may issue an order of commitment immediately after
the completion of the hearing, or it may take the matter under advisement and
issue an order within 24 hours of the hearing.
B. If the court does not issue an order of commitment within 24
hours of the completion of the hearing, it shall dismiss the application and
order the patient discharged immediately.
8. Continued involuntary hospitalization. If the chief
administrative officer of the hospital to which a person has been committed
involuntarily by the District Court recommends that continued involuntary hospitalization
is necessary for that person, the chief administrative officer shall notify the
commissioner. The commissioner may then, not later than 30 days prior to the
expiration of a period of commitment ordered by the court, make application in
accordance with this section to the District Court that has territorial
jurisdiction over the hospital designated for treatment in the application by
the commissioner for a hearing to be held under this section.
9. Transportation. Except for transportation expenses paid by the
District Court pursuant to subsection 10, a continued involuntary
hospitalization hearing that requires transportation of the patient to and from
any hospital to a court that has committed the person must be provided at the
expense of the Department of Behavioral and Developmental Services.
Transportation of an individual to a hospital under these circumstances must
involve the least restrictive form of transportation available that meets the
clinical needs of that individual and be in compliance with departmental
regulations.
10. Expenses. With the exception of expenses incurred by the
applicant pursuant to subsection 5, paragraph F, the District Court shall be
responsible for any expenses incurred under this section, including fees of
appointed counsel, witness and notice fees and expenses of transportation for
the person.
11. Appeals. A person ordered by the District Court to be
committed to a hospital may appeal from that order to the Superior Court.
A. The appeal is on questions of law
only.
B. Any findings of fact of the District
Court may not be set aside unless clearly erroneous.
C. The order of the District Court shall
remain in effect pending the appeal.
D. The District Court Civil Rules and the Maine Rules of Civil
Procedure apply to the conduct of the appeals, except as otherwise specified in
this subsection.
§3865. Hospitalization by federal agency
If a person ordered to be hospitalized under section 3864 is
eligible for hospital care or treatment by any agency of the United States, the
court, upon receipt of a certificate from the agency showing that facilities
are available and that the person is eligible for care or treatment in the
facilities, may order him to be placed in the custody of the agency for hospitalization.
1. Rules and rights. A person admitted under this section to any
hospital or institution operated by any agency of the
2. Powers of chief administrative officer. The chief
administrative officer of any hospital or institution operated by a federal
agency in which the person is hospitalized has, with respect to the person, the
same powers as the chief administrative officer of hospitals or the
commissioner within this State with respect to detention, custody, transfer,
conditional release or discharge of patients.
3. Court jurisdiction. Every order of hospitalization issued
under this section is conditioned on the retention of jurisdiction in the
courts of this State to, at any time:
A. Inquire into the mental condition of a
person hospitalized; and
B. Determine the necessity for
continuance of his hospitalization.
§3866. Members of the Armed Forces
1. Admission to hospital. Any member of the Armed Forces of the
United States who was a resident of the State at the time of his induction into
the service and who is determined by a federal board of medical officers to
have a mental disease not incurred in line of duty shall be received, at the
discretion of the commissioner and without formal commitment, at either of the
state hospitals for the mentally ill, upon delivery at the hospital designated
by the commissioner of:
A. The member of the Armed Forces;
and
B. The findings of the board of medical
officers that he is mentally ill.
2. Status. After delivery of the member of the Armed
Forces at the hospital designated by the commissioner, his status shall be the
same as if he had been committed to the hospital under section 3864.
§3867. Transfer from out-of-state institutions
1. Commissioner's authority. The commissioner may,
upon request of a competent authority of the District of Columbia or of a state
that is not a member of the Interstate Compact on Mental Health, authorize the
transfer of a mentally ill patient directly to a hospital in Maine, if:
A. The patient has resided in this State for a consecutive period
of one year during the 3-year period immediately preceding commitment in the
other state or the
B. The patient is currently confined in a recognized institution
for the care of the mentally ill as the result of proceedings considered legal
by that state or by the
C. A duly certified copy of the original
commitment proceedings and a copy of the patient's case history is supplied;
D. The commissioner, after investigation,
considers the transfer justifiable; and
E. All expenses of the transfer are borne
by the agency requesting it.
2. Receipt of
patient. When the commissioner has authorized a transfer under this
section, the superintendent of the hospital designated by the commissioner
shall receive the patient as having been regularly committed to the mental
health institute under section 3864.
§3868. Transfer to other institutions
1. To other hospitals. The commissioner may transfer, or
authorize the transfer of, a patient from one hospital to another, either
inside or outside the State, if the commissioner determines that it would be
consistent with the medical needs of the patient to do so.
A. Before a patient is transferred, the commissioner shall give
written notice of the transfer to the patient's guardian, the patient's parents
or spouse or, if none of these persons exists or can be located, to the
patient's next of kin or friend, except that if the chief administrative
officer of the hospital to which the patient is currently admitted has reason
to believe that notice to any of these individuals would pose risk of harm to
the person, then notice may not be given to that individual.
B. In making all such transfers, the commissioner shall give due
consideration to the relationship of the patient to his family, guardian or
friends, in order to maintain relationships and encourage visits beneficial to
the patient.
2. To federal agency. Upon receipt of a certificate of an agency of
the United States that facilities are available for the care or treatment of
any involuntarily hospitalized person and that the person is eligible for care
and treatment in a hospital or institution of the agency, the chief
administrative officer of the hospital may cause his transfer to the agency of
the United States for hospitalization.
A. Upon making such a transfer, the chief administrator of the
hospital shall notify the court which ordered hospitalization and the persons
specified in subsection 1, paragraph A.
B. No person may be transferred to an agency of the United States
if he is confined pursuant to conviction of any felony or misdemeanor or if he
has been acquitted of the charge solely on the ground of mental illness, unless
before the transfer the court originally ordering confinement of the person
enters an order for transfer after appropriate motion and hearing.
C. Any person transferred under this section to an agency of the
§3869. Return from unauthorized absence
If any patient committed under section 3864 leaves the grounds of
the hospital without authorization of the chief administrative officer of the
hospital or his designee, or refuses to return to the hospital from a community
pass when requested to do so by the chief administrative officer or his
designee, law enforcement personnel of the State or of any of its subdivisions
may, upon request of the chief administrative officer or his designee, assist
in the return of the patient to the hospital.
§3870. Convalescent status
1. Authority. The chief administrative officer of a state
mental health institute may release an improved patient on convalescent status
when the chief administrative officer believes that the release is in the best
interest of the patient and that the patient does not pose a likelihood of
serious harm. The chief administrative officer of a nonstate
mental health institute may release an improved patient on convalescent status
when the chief administrative officer believes that the release is in the best
interest of the patient, the patient does not pose a likelihood of serious harm
and, when releasing an involuntarily committed patient, the chief
administrative officer has obtained the approval of the commissioner after
submitting a plan for continued responsibility.
A. Release on convalescent status may include provisions for
continuing responsibility to and by the hospital, including a plan of treatment
on an outpatient or nonhospital basis.
B. Before release on convalescent status under this section, the
chief administrative officer of a hospital shall make a good faith attempt to
notify, by telephone, personal communication or letter, of the intent to
release the patient on convalescent status and of the plan of treatment, if
any:
(1) The parent or guardian of a minor
patient;
(2) The legal guardian of an adult
incompetent patient, if any is known; or
(3) The spouse or adult next of kin of an adult competent patient,
if any is known, unless the patient requests in writing that the notice not be
given.
If the chief administrative officer of the hospital to which the
patient is currently admitted has reason to believe that notice to any of the
individuals listed in this paragraph would pose risk of harm to the person,
then notice may not be given to that individual.
C. The hospital is not liable when good
faith attempts to notify the parents, spouse or guardian have
failed.
D. Before releasing a patient on convalescent status, the chief
administrative officer of the hospital shall advise the patient, orally and in
writing, of the terms of the patient's convalescent status, the treatment
available while the patient is on convalescent status and, if the patient is a
voluntary patient, of the patient's right to request termination of the status
and, if involuntarily committed, the means by which and conditions under which rehospitalization may occur.
2. Reexamination. Before a patient has spent a year on
convalescent status, and at least once a year thereafter, the chief
administrative officer of the hospital shall reexamine the facts relating to
the hospitalization of the patient on convalescent status.
3. Discharge. Discharge from convalescent status is governed
as follows.
A. If the chief administrative officer of the hospital determines
that, in view of the condition of the patient, convalescent status is no longer
necessary, the chief administrative officer shall discharge the patient and
make a report of the discharge to the commissioner.
B. The chief administrative officer shall terminate the
convalescent status of a voluntary patient within 10 days after the day the
chief administrative officer receives from the patient a request for discharge
from convalescent status.
4. Rehospitalization. Rehospitalization
of patients under this section is governed as follows.
A. If, prior to discharge, there is reason to believe that it is
in the best interest of an involuntarily committed patient on convalescent
status to be rehospitalized, or if an involuntary
committed patient on convalescent status poses a likelihood of serious harm the
commissioner or the chief administrative officer of the hospital, with the
approval of the commissioner, may issue an order for the immediate rehospitalization of the patient.
B. [1997, c. 422, §22 (rp).]
C. If the order is not voluntarily complied with, an involuntarily
committed patient on convalescent leave may be returned to the hospital if the
following conditions are met:
(1) An order is issued pursuant to
paragraph A;
(2) The order is brought before a
District Court Judge or justice of the peace; and
(3) Based upon clear evidence that return to the hospital is in
the patient's best interest or that the patient poses a likelihood of serious harm,
the District Court Judge or justice of the peace approves return to the
hospital.
After approval by the District Court Judge or justice of the
peace, a law enforcement officer may take the patient into custody and arrange
for transportation of the patient in accordance with the provisions of section
3863, subsection 4.
This paragraph does not preclude the use
of protective custody by law enforcement officers pursuant to section 3862.
5. Notice of change of status. Notice of the change of
convalescent status of patients is governed as follows.
A. If the convalescent status of a patient in a hospital is to be
changed, either because of a decision of the chief administrative officer of
the hospital or because of a request made by a voluntary patient, the chief
administrative officer of the hospital shall immediately make a good faith
attempt to notify, by telephone, personal communication or letter, of the
contemplated change:
(1) The parent or guardian of a minor patient;
(2) The guardian of an adult incompetent
patient, if any is known; or
(3) The spouse or adult next of kin of an adult competent patient,
unless the patient requests in writing that the notice not be given.
If the chief administrative officer of the hospital to which the
patient is currently admitted has reason to believe that notice to any of the
individuals listed in this paragraph would pose risk of harm to the person,
then notice may not be given to that individual.
B. If the change in convalescent status is due to the request of a
voluntary patient, the chief administrative officer of the hospital shall give
the required notice within 10 days after the day the chief administrative
officer receives the request.
C. The hospital is not liable when good
faith attempts to notify the parents, spouse or guardian have
failed.
§3871. Discharge
1. Examination. The chief administrative officer of a hospital
shall, as often as practicable, but no less often than every 30 days, examine
or cause to be examined every patient to determine that patient's mental status
and need for continuing hospitalization.
2. Conditions for discharge. The chief
administrative officer of a hospital shall discharge, or cause to be
discharged, any patient when:
A. Conditions justifying hospitalization no
longer obtain;
B. The patient is transferred to another
hospital for treatment for that patient's mental or physical condition;
C. The patient is absent from the
hospital unlawfully for a period of 90 days;
D. Notice is received that the patient has been admitted to
another hospital, inside or outside the State, for treatment for that patient's
mental or physical condition; or
E. Although lawfully absent from the hospital, the patient is
admitted to another hospital, inside or outside the State, for treatment of
that patient's mental or physical condition, except that, if the patient is
directly admitted to another hospital and it is the opinion of the chief
administrative officer of the hospital that the patient will directly reenter
the hospital within the foreseeable future, the patient need not be
discharged.
3. Discharge against medical advice. The chief
administrative officer of a hospital may discharge, or cause to be discharged,
any patient even though the patient is mentally ill and appropriately
hospitalized in the hospital, if:
A. The patient and either the guardian,
spouse or adult next of kin of the patient request that patient's discharge;
and
B. In the opinion of the chief administrative officer of the
hospital, the patient does not pose a likelihood of serious harm due to that
patient's mental illness.
4. Reports.
5. Notice. Notice of discharge is governed as
follows.
A. When a patient is discharged under this section, the chief
administrative officer of the hospital shall immediately make a good faith
attempt to notify the following people, by telephone, personal communication or
letter, that the discharge has taken or will take
place:
(1) The parent or guardian of a minor
patient;
(2) The guardian of an adult incompetent
patient, if any is known; or
(3) The spouse or adult next of kin of an adult competent patient,
if any is known, unless the patient requests in writing that the notice not be
given or unless the patient was transferred from or will be returned to a state
correctional facility.
If the chief administrative officer of the hospital to which the
patient is currently admitted has reason to believe that notice to any of the
individuals listed in this paragraph would pose a risk of harm to the person,
then notice may not be given to that individual.
B. The hospital is not liable when good
faith attempts to notify the parents, spouse or guardian have
failed.
§3872. Treatment of dually diagnosed persons (REPEALED)
Chapter 11: MEDICAL TREATMENT OF PSYCHOTIC DISORDERS
§11001. Medical treatment of psychotic disorders
1. Definitions. As used in this chapter, unless the context
otherwise indicates, the following terms have the following meanings.
A. "Attending physician" means
the physician who has primary responsibility for the treatment and care of the
patient.
B. "Declarant" means a person
suffering from a psychotic condition who has executed a declaration while in a
state of remission in accordance with the requirements of subsection 2.
C. "Declaration" means a written document voluntarily
executed by the declarant in accordance with the
requirements of subsection 2 regardless of form.
D. "Health care facility" includes any program,
institution, place, building or agency or portion thereof, private or public,
whether organized for profit or not, used, operated or designed to provide
medical diagnosis, treatment or rehabilitative or preventive care to any
person. "Health care facility" includes, but is not limited to, facilities
that are commonly referred to as hospitals, outpatient clinics, organized
ambulatory health care facilities, emergency care facilities and centers,
health maintenance organizations and other facilities providing similarly
organized services regardless of nomenclature.
E. "Health care provider" means a person who is
licensed, certified or otherwise authorized or permitted by law to administer
health care in the ordinary course of business or practice of a
profession.
F. "Incompetent person" means a person who suffers from
a psychotic condition who is temporarily impaired by reason of having lapsed
into that psychotic condition to the extent that while temporarily impaired,
the person lacks sufficient understanding or capacity to make or communicate
responsible decisions concerning the person's health care.
G. "Physician" means an individual licensed to practice
medicine.
H. "Psychotic condition" means any disease, illness or
condition commonly referred to by the medical profession according to ordinary
standards of current medical practice as any disorder characterized by
psychotic tendencies or manic-depressive behavior or schizophrenia or other
similar condition that, without the administration of appropriate medical
treatment, including the use of psychotropic drugs, would constitute a danger
to the patient or to others and would result in a patient being gravely
disabled.
2. Execution of declaration. Any person 18 years of
age or older who suffers from a psychotic condition but is competent and in a
state of remission at the time of execution may execute a declaration directing
that medical treatment, including the administration of psychotropic drugs, be
provided at a time when the person has lapsed and is not able to make decisions
regarding medical treatment.
3. Declaration requirements. A declaration made
pursuant to this chapter must:
A. Be in writing;
B. Be signed by the person making the declaration or by another
person in the declarant's presence and at the declarant's expressed direction;
C. Be dated;
D. Be signed in the presence of 2 or more
witnesses who are:
(1) At least 18 years of age;
(2) Not related to the declarant by blood, marriage or adoption;
(3) Not, at the time the declaration is executed, attending
physicians, employees of the attending physicians or employees of a health care
facility in which the declarant is a patient; and
E. Have all signatures notarized at the
same time.
4. Declaration sample form. The following declaration
sample form may be copied and used by filling in the blanks or may be changed
to add more individualized instructions or an entirely different format may be
used to provide health care instructions.
DECLARATION
I. Statement of Declarant
Declaration made this ...... day of .......... (month, year). I, .........................,
being of sound mind, willfully and voluntarily make known my desire that
medical treatment as outlined below, including the administration of
psychotropic drugs if necessary, be provided to me under the circumstances set
forth below, and do hereby declare:
If at any time I should lapse into a
psychotic condition as determined by 2 physicians who have personally examined
me, one of whom is my attending physician and the physicians have determined
that I am unable to make decisions concerning my medical treatment, and that
without medical treatment my condition will result in my being gravely disabled
and in my posing a serious danger to myself or to others and when medical treatment
would serve to remedy the condition and prevent potential or further harm to
myself or to others, I direct that the following personal medical treatment
plan, including the elements checked below, be provided to me and be carried
out:
Psychotropic drugs (specify) ...............
.................................................
Hospitalization if necessary
Counseling
Therapy involving my family members or
friends
(Other treatment)
..........................
.................................................
In the absence of my ability to give
directions regarding the provision of medical treatment, it is my intention
that this declaration be honored by my family and physician(s) as my legal
informed consent to receive medical treatment.
My instructions must prevail even if they
create a conflict with the desires of my relatives. This declaration controls
in all circumstances.
I understand the full import of this
declaration and declare that I am emotionally and mentally competent at this time
to make this declaration.
Signed
.............................
Address
............................
II. Statement of Witnesses
I am at least 18 years of age and am not
related to the declarant by blood, marriage or
adoption or the attending physician, an employee of the attending physician or
an employee of the health care facility in which the declarant
is a patient.
The declarant
is personally known to me and I believe the declarant
to be of sound mind at this time of execution.
Witness ............................
Address
............................
Witness
............................
Address
............................
III. Notarization
Subscribed, sworn to and acknowledged
before me by ............................, the declarant,
and subscribed and sworn to before me by ................................. and
................................, witnesses, this ............ day of
............, 19....
( SEAL)" Headnote="
Signed .............................
(official capacity of officer)
5. Presumed validity of declaration. If a patient is
incompetent at the time of the decision to give medical treatment, a
declaration executed in accordance with subsection 2 is presumed valid.
For the purpose of this chapter, a physician or health care
facility may presume, in the absence of actual notice to the contrary, that a
person who executed a declaration was of sound mind when the declaration was
executed.
Execution of a declaration may not be considered an indication of
a declarant's mental incompetence.
6. Patient's wishes supersede declaration. The wishes of a declarant, at all times when the declarant
is in a state of remission and is competent, supersede the declaration.
7. Declaration becomes part of medical records. The declarant
must provide for delivery of the notarized declaration to the attending
physician. If the declarant is comatose, incompetent
or otherwise mentally or physically incapable after executing the declaration,
any other person may deliver the notarized declaration to the physician. An
attending physician who is notified under this subsection shall promptly make
the declaration a part of the declarant's medical
records.
8. Duty to deliver. A person who has a declaration of another in
that person's possession and who becomes aware that the declarant
is in circumstances under which the terms of the declaration may become
applicable shall deliver the declaration to the declarant's
attending physician or to the health care facility in which the declarant is a patient.
9. Written certification. An attending physician who has been
notified of the existence of a declaration executed under this chapter shall
make all reasonable efforts to obtain the notarized declaration and shall
ascertain without delay whether the declarant's
current condition corresponds to the condition under which the declaration
would take effect.
If a patient's condition corresponds to the condition described in
the patient's declaration, a written certification of the declarant's
condition must be made a part of the declarant's
medical record and must be substantially in the following form:
CERTIFICATION OF CONDITION SPECIFIED IN
PATIENT'S DECLARATION
I certify that, in my professional opinion, (name of patient) ................................ is not able to
participate in decisions concerning medical treatment to be administered and
has the following condition:
(diagnosis)
..........................................
According to the declaration, (name of patient)
................................ wishes to receive medical treatment
according to a personal medical treatment plan as specified in the patient's
declaration under these circumstances.
Signed
.............................
Attending Physician
Signed
.............................
Second Attending Physician
10. Identification of declarant. All inpatient health
care facilities shall develop a system to visibly identify a patient's chart
that contains a declaration as set forth in this chapter.
11. Transfer to another physician. An attending physician
and any other physician under the attending physician's direction or control
who possesses the patient's declaration or knows that the declaration is part
of the patient's record in the health care facility in which the declarant is receiving care shall follow as closely as
possible the terms of the declaration.
An attending physician who, because of personal beliefs or
conscience, refuses or is unable to certify a patient or who is unable to comply
with the terms of the patient's declaration shall make the necessary
arrangements to transfer the patient and the appropriate medical records
without delay to another physician. A physician who transfers the patient
without unreasonable delay or who makes a good faith attempt to do so is not
subject to criminal prosecution or civil liability and may not be found to have
committed an act of unprofessional conduct for refusal to comply with the terms
of the declaration. Transfer under these circumstances does not constitute
abandonment.
Failure of an attending physician to transfer in accordance with
this section constitutes professional misconduct.
12. Revocation. At any time the declarant
is in a state of remission and is competent, the declaration may be revoked
by:
A. Canceling, defacing, obliterating, burning, tearing or
otherwise destroying by the declarant or by some
person in the declarant's presence and at the declarant's direction;
B. A written revocation signed and dated by the declarant expressing the declarant's
intent to revoke. The attending physician shall record in the patient's medical
record the time and date when the physician received notification of the
written revocation;
C. A declarant's unambiguous verbal
expression in the presence of 2 adult witnesses of an intent
to revoke the declaration. The revocation becomes effective upon communication
to the attending physician by the declarant or by
both witnesses. The attending physician shall record in the patient's medical
record the time, date and place of the revocation and the time, date and place,
if different, at which the attending physician received notification of the
revocation; or
D. A declarant's
unambiguous verbal expression of an intent to revoke
the declaration to an attending physician.
13. Health care or health insurance. A person or entity may
not require any person to execute a declaration as a condition for being
insured for or for receiving insurance benefits or health care services.
14. Criminal penalties. A person who threatens, directly or
indirectly, coerces or intimidates any person to execute a declaration commits
a Class C crime.
A person who willfully conceals, cancels, defaces, obliterates or
damages another's declaration without the declarant's
consent or who falsifies or forges a declarant's
revocation of declaration with the intent to create the false impression that
the declarant has directed that no medical treatment
be given commits a Class E crime.
A physician who willfully fails to record a statement of
revocation according to the requirements of subsection 12 commits a Class C
crime.
15. Health personnel protections. In the absence of
actual notice of the revocation of a declaration, a health care provider,
health care facility, physician or other person acting under the direction of
an attending physician is not subject to criminal prosecution or civil
liability and may not be deemed to have engaged in unprofessional conduct as a
result of the provision of medical treatment to a declarant
in accordance with this chapter unless the absence of actual notice resulted
from the negligence of the health care provider, physician or other
person.
16. Petition for guardianship. A person may petition
the court for appointment of a guardian for a declarant
if that person has good reason to believe that the provision of medical
treatment in a particular case:
A. Is contrary to the most recent expressed wishes of a declarant who was in remission and was competent at the
time of expressing the wishes;
B. Is being proposed pursuant to a
declaration that has been falsified, forged or coerced; or
C. Is being considered without the benefit of a revocation that
has been unlawfully concealed, destroyed, altered or cancelled.
17. Procedure in absence of declaration. In the absence of a
declaration, ordinary standards of current medical practice must be followed.
Nothing in this chapter may be construed to require a declaration in order for
medical treatment to be given. If there is no declaration, a verbal statement
made by the patient to either a physician or to the patient's friend or
relative may be considered by the physician in deciding whether the patient
would want the physician to provide medical treatment. Unambiguous verbal
statements by the patient or reliable reports of these statements must be
documented in the patient's medical record.
The provision of medical treatment pursuant to this subsection is
not grounds for any civil or criminal action and does not constitute
professional misconduct.
18. Preservation of existing rights. Nothing in this chapter
impairs or supersedes any legal right or legal responsibility that a person may
have to provide medical treatment in a lawful manner. In this respect, the
provisions of this chapter are cumulative.
19. No presumption. This chapter does not create a presumption
concerning the intention of a person who has revoked or has not executed a
declaration to receive medical treatment.
20. Declaration executed before effective date. The declaration of any
patient executed prior to the effective date of this chapter must be given
effect as provided in this chapter.
21. Recognition of document executed in another state. A document executed in
another state is valid for purposes of this chapter if the document and the
execution of the document substantially comply with the requirements of this
chapter.
22. Effect of multiple documents. Medical treatment
instructions contained in a declaration executed in accordance with this
chapter supersede:
A. A contrary or conflicting instruction given by a proxy or an
attorney for health care decisions unless the proxy appointment or the power of
attorney expressly provides otherwise; and
B. Instructions in a prior declaration
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