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Last updated
November 2003
Continued
TITLE 43A
MENTAL HEALTH
_______
§43A‑6‑101. Nonresident patients ‑
Transfer to state of residence.
Nonresidents who have been admitted as patients to an
institution within the department in accordance with the provisions of this
title may be transferred by the Commissioner to similar institutions within the
state where they reside. The
Commissioner shall make arrangements with the appropriate agency in other
states to facilitate the orderly transfer of nonresidents to the state in which
they reside.
§43A‑6‑102. Transfer of patients to federal agencies for
care and treatment.
A. Upon receipt of a
certificate of the United States Public Health Service or any agency of the
United States Government or a veterans center in the state that facilities are
available for the care or treatment of any person who has been admitted to a
facility within the Department in accordance with the provisions of this title
and that such person is eligible for care or treatment, the Commissioner, upon
recommendation by the person in charge of the facility in which the patient is
located, may transfer the patient to the United States Public Health Service or
other agency of the United States Government, or a veterans center in the state
or other agency of the state for care and treatment. If the patient has been admitted under
involuntary court‑ordered commitment proceedings, the Commissioner shall
notify the committing court of any transfer when it has been effected. Any patient transferred as provided in this
section shall be deemed to be committed to the United States Public Health
Service or other agency of the United States Government or a veterans center in
the state or other agency of the state pursuant to the original commitment the
same as if he had been originally committed.
B. In the event that
a patient transferred under provisions of this section subsequently becomes
ineligible for continued services of, or if required services cannot be
provided by the entity or institution wherein the patient is then committed and
residing, the Commissioner shall upon notification accept the return of the
patient to the appropriate institution of the Department. If the patient has been admitted under this
title, the Commissioner shall notify the committing court of the transfer when
it has been effected.
Any patient transferred as provided in this section shall be deemed to
be committed to the Department pursuant to the original commitment the same as
if he had been originally committed.
§43A‑6‑103. Residents of state in
institutions of other states ‑ Admission to
Any resident of this state who has been admitted to an
institution for mentally ill in another state, the
§43A‑6‑104. Bringing poor or indigent
person into state.
Any person who knowingly brings or causes to be brought, a
poor or indigent person from out of the state into this state and keeps or
leaves him, or attempts to keep or leave him, within the state for the purpose
of placing him or requiring his placing as a patient in any state institution
within the Department for care or treatment therein at the expense of the
state, shall be guilty of a misdemeanor.
§43A-7-101.
Discharge or permission to leave facility -
Convalescent leave - Outpatient status - Visiting status - Notification of
discharge - Expense of returning to facility - Procedure for return.
A. The person in
charge of a facility within the Department of Mental Health and Substance Abuse
Services shall discharge a patient or permit the patient to leave the facility
as provided herein.
B. The person in
charge shall discharge a patient:
1.
Who is no longer a risk to self or others as defined in Section 1-103 of
this title; and
2.
Who is capable of surviving safely in freedom alone or with the help of
willing and responsible family members or friends; and
3.
For whom a discharge plan has been developed pursuant to the provisions
of Section 7-102 of this title.
C. The person in
charge may grant a convalescent leave or visiting status to a patient in
accordance with policies prescribed by the Commissioner. The facility granting a convalescent leave or
visiting status to a patient has no responsibility in returning the patient to
the facility should such become necessary.
A convalescent leave or visiting status may be granted rather than a
discharge when the patient's complete recovery can be determined only by
permitting the patient to leave the facility.
The person in charge shall discharge a patient who has not returned to
the facility within twelve (12) months from the time a convalescent leave or
visiting status was granted. Any return
from convalescent leave or visiting status must be on a voluntary basis.
D. In accordance with
policies prescribed by the Commissioner, a person in charge may transfer a
patient to an outpatient or other nonhospital status
when, in the opinion of the person in charge, such transfer will not be
detrimental to the public welfare or injurious to the patient and the necessary
treatment may be continued on that basis; provided however, that before
transferring the patient, the person in charge shall ensure that appropriate
financial resources and appropriate services are available to receive and care
for such patient after such transfer.
E. The person in
charge of the facility shall notify the court that committed the patient that
the patient has been discharged. Such
notification shall be within forty‑eight (48) hours after the actual
discharge.
F. The expense of
returning a patient from convalescent leave, outpatient status or visiting
status shall be that of:
1.
The party removing the patient from the facility; or
2.
The Department. When it becomes
necessary for the patient to be returned from the county where the patient
happens to be, the Department shall reimburse the county pursuant to the
provisions of the State Travel Reimbursement Act.
G. In the event
authorization is necessary to accomplish the return of the patient to the
facility, such authority is hereby vested in the judge of the district court in
the county where the patient is located.
Upon receipt of notice that the patient needs to be returned to the
facility, the judge shall cause the patient to be brought before the court by
issuance of a citation directed to the patient to appear and show cause why the patient should not be returned to the facility. The judge shall, if clear and convincing
evidence is presented by testimony under oath that the patient should be
returned to the facility, enter an order returning the patient. If there is a lack of clear and convincing
evidence showing the necessity of such return, the patient shall immediately be
released. Law enforcement officers are
authorized to take into custody, detain and transport a patient pursuant to a
citation or an order of the judge of the district court.
H. An attending
physician of any patient admitted to a private facility may discharge a patient
or permit the patient to leave the facility subject to the same provisions
applicable to the discharge or release of a patient by the person in charge of
a state facility.
§43A-7-102.
Discharge planning and assistance - Further outpatient
treatment.
A. Any person
detained or voluntarily or involuntarily committed for treatment pursuant to
the provisions of the Mental Health Law shall be provided with discharge
planning and assistance by the facility where detained or treated. Discharge planning and assistance shall
include, but not be limited to, the following:
1.
Return of all personal possessions to the person, upon discharge, except
contraband considered illegal; and
2.
Transportation assistance.
B.
1.
A discharge plan shall be completed for every person to be discharged
from a facility operated by the Department of Mental Health and Substance Abuse
Services or an agency which provides services pursuant to a contract with the
Department.
2.
Discharge planning and the discharge plan shall include, but not be
limited to:
a. housing information and referral,
a location, approved by the Department, where the patient will reside,
provided, the Department shall give preference to discharge to an appropriate
verifiable address, and, as necessary, placement assistance pursuant to Section
7-104 of this title,
b. planning for outpatient
treatment, as appropriate, including but not limited to assignment of a case
manager, an initial appointment for outpatient services and a treatment
plan. Sufficient medication to enable
the person to be discharged to continue the course of medication prescribed for
such person until such appointment shall be provided to the person being
discharged at the time of discharge, and
c. provision of the information in
the discharge plan required by this subsection to the patient in writing after
such information has been fully explained to the person being discharged. The plan shall be signed by the person being
discharged and by the person explaining the plan upon completion of a verbal
explanation of such plan and shall be signed in the presence of a family member
of the person being discharged, or other person interested in the welfare of
the person being discharged. The
original copy of the plan shall become a part of the official discharge papers
of the patient and shall be kept in the permanent files of the patient. A copy of the signed discharge plan shall be
furnished the person being discharged.
C. The person
designated by the Department may provide a family member of the person being
discharged, or other person interested in the welfare of the person being
discharged, with information related to the discharge plan as necessary,
appropriate and in compliance with confidentiality requirements to enable said
family member or other person to assist with the implementation of and
compliance with the treatment plan.
D. If a determination
is made that an order for alternative treatment is necessary, the executive
director or person in charge of the facility in which the person is receiving
inpatient treatment shall:
1.
File or request the filing of a petition as provided by Section 5-410 or
9-102 of this title requesting said order; or
2.
Request the court to modify an existing order for involuntary commitment
as provided by Section 5-419 of this title.
§43A‑7‑103. Clothing and expenses of released patients.
No patient shall be discharged or granted convalescent leave
status from a state hospital without suitable clothing adapted to the season in
which he is discharged or granted convalescent leave status; and if it cannot
be otherwise obtained, the business manager of the institution shall, upon the
order of the superintendent, furnish the same, and reasonable transportation
costs and money not to exceed Twenty‑five Dollars ($25.00), to defray his
expenses until he can reach his relatives or friends, or find employment to
earn a subsistence.
§43A‑7‑104. Placement of homeless
patients.
In the case of a patient who has substantially impaired
ability to provide adequate self care or custody and who has no home or
relatives or friends able and willing to care for the patient, the
superintendent prior to discharge from the facility shall make a reasonable
effort to arrange an appropriate placement and necessary services for the
patient. When necessary, the
superintendent shall refer to other public or voluntary agencies for assistance;
provided, nothing in this section or Section 7-102 of this title shall be
construed as restricting the right of an adult patient, when such patient has
not been found by a court to be incompetent, to determine the placement or
residence of such patient upon discharge from a facility.
§43A‑7‑105. Delivery of funds to
patient at time of discharge.
It shall be the duty of the superintendent of such
institution to deliver all personal funds in his hands for the benefit of a
patient to said patient at the time said patient is
discharged.
§43A‑7‑106. Return of property upon death or discharge of
patient.
When any patient in any state institution subject to the
jurisdiction of the Department of Mental Health and Substance Abuse Services
dies or leaves such institution, all property, including money, belonging to
said patient shall be immediately delivered to the patient, if leaving, or to
his guardian or next of kin, if the patient has died; provided that if the
patient has died and no person is available for such delivery, the institution
shall notify the guardian or next of kin of such death and the description of
the property on hand by certified mail at the last‑known address of such
guardian or next of kin, and that if said property is not claimed within one
(1) year from the date of such notice, then such property shall become the
property of the state, and all such monies shall be credited to the revolving
fund of the institution.
§ 43A‑7‑107. Escape or leave without permission ‑
Notice ‑ Discharge or convalescent leave ‑ Apprehension.
When an institution within the department has a patient
leave without permission, or escape, the superintendent of the institution
shall so notify some relative of the patient, or, in the event the patient has been
admitted in accordance with the a court order, the judge of the court ordering
the patient to the hospital. Should a
patient, other than one admitted in accordance with a court order, absent from
the hospital without permission, not cause trouble in the community to which he
goes, he may be discharged or given convalescent leave at the discretion of,
and by, the superintendent of the hospital.
Any other patient, escaped or absent without permission, who has to be
returned to the hospital shall be returned by the relatives or friends or, in
the event of their failure to return the escaped individual, it shall be the
responsibility and duty of officers of the county wherein the individual is
present to apprehend said individual and return the patient to the appropriate
institution. In addition, it shall be
the duty of any municipal law enforcement officer to directly return such
patient if the institution is located within the boundaries of the governmental
entity employing the officer. The
governmental entity employing the law enforcement officers shall reimburse said
officers for necessary travel expense as provided by law.
§ 43A‑7‑108. Removing patient from institution ‑
Assisting or encouraging escape.
Any person who takes a patient who has been lawfully
admitted thereto from any institution within this department without the
consent of the superintendent, or who entices, assists or encourages any such
patient to escape therefrom shall be guilty of a
misdemeanor and, upon conviction, shall be fined not to exceed One Thousand
Dollars ($1,000.00) or confined in jail not to exceed one (1) year, or both.
§43A-7-109.
Repealed by Laws 2002, c. 488, § 50, eff.
§43A-7-110.
Repealed by Laws 2002, c. 488, § 50, eff.
§43A-7-111.
Repealed by Laws 2002, c. 488, § 50, eff.
§43A‑7‑112. Judicial proceeding for
declaration of restoration to soundness of mind ‑ Procedure.
When any person shall have been adjudged legally mentally
incompetent, petition may be presented to the court or the judge thereof which
made such adjudication or to the court or the judge of the county where the
person resides, for a finding and order declaring such person restored to
soundness of mind. If an order is
entered restoring the person to soundness of mind, such order shall be
forwarded to the court which made the order adjudging said incompetency, and
shall be placed in the original file of the matter. Said order shall not affect any guardianship
proceedings pending so as to prevent the payment of any lawful claims against
such guardianship estate. If a person
has been adjudged to be legally mentally incompetent in another state, the
petition may be presented to the district court or the judge thereof where the
patient resides or where the institution in which the patient is confined is
located. Such a petition may be
presented by the person who has been declared to be incompetent, or by his
father, mother, husband, wife, brother, sister, child, or next of kin, or if in
his opinion the patient has recovered, by the superintendent of the institution
in which he is held. If the
superintendent of the institution where a person is confined files a petition,
in addition to requesting an adjudication as to the
person's competency, the superintendent may request the appointment of a
temporary guardian to whom the mentally incompetent person may be released
pending the hearing on the petition. If
such a request is made, the superintendent must attach a verified affidavit to
his petition stating that the patient no longer needs care and treatment and
confinement is not necessary for his safety and the safety of others. The district attorney of the county in which
the petition is filed shall represent the superintendent of the institution in
which the patient is kept and shall prepare the necessary pleadings for
him. Upon presentation of the petition
to the court or the judge thereof, the court or the judge thereof, shall fix a
time for hearing thereon, and in case the application is made by the person
adjudged mentally incompetent, shall cause notice of such hearing to be given
to the person who applied for such adjudication, if he be found in said county,
and may cause such further notice to be given as to the court or the judge
thereof seems proper. If, upon the
hearing of such petition the court or the judge thereof from the testimony
given, shall find such person restored to soundness of mind, an order shall be
entered declaring him mentally competent; provided, however, that the testimony
of at least two qualified examiners establishing the sanity of such person,
shall be required before the finding of the court or the judge thereof and
entering such order. The provisions of
this section must also be followed when determining the competency of a person
who has legally been determined to be mentally incompetent although they are
not institutionalized.
§43A‑7‑113. Guardianship of person and
estate without hospitalization ‑ Ajudication ‑
Bond of guardian.
If after full examination and hearing the court shall
determine that a person is mentally incompetent, but that it is not necessary
to hospitalize him for treatment or for his own welfare, the welfare of others
or of the community, the judge of the district court must issue an order
adjudging the person to be mentally incompetent and must appoint a guardian of
his person and estate with the powers and duties that are prescribed for the
guardian of a minor. Every such guardian
has the care and custody of his ward, and the management of all his estate,
until such guardian is legally discharged.
The guardian shall give bond to the State of Oklahoma, in like manner
and with like conditions, as before prescribed with respect to the guardian of
a minor, provided that upon a finding by the district court that:
1.
The anticipated annual income to a ward for one (1) year plus the value
of the personal property of the ward is less than Forty Thousand Dollars
($40,000.00); and
2.
The guardian of the ward is either a parent or a child of the ward, the court
may order that a bond is not necessary.
In all other cases, except as provided in subsection A of
Section 776 of this title, a bond shall be required.
§43A‑8‑101. Purpose.
The purpose of Sections 8‑101 through 8‑108 of
the Mental Health Law is to provide for the certification, admission,
treatment, transfer, and discharge of mentally ill persons to and from private
hospitals or institutions.
§43A‑8‑102. Definitions.
(A) As used in this act, private hospital or institution means
any general hospital maintaining a neuropsychiatric
unit or ward, or any private hospital or sanitarium for care and treatment of
mentally ill persons, which is not supported by state or federal governments,
except that the term shall include the Oklahoma Memorial Hospital Neuro‑psychiatric Unit. The term shall not include nursing homes or
other facilities maintained primarily for the care of aged and infirm persons.
(B) Mentally ill person means any person as so defined by
the provisions of the Mental Health Law.
§43A‑8‑103. Admission of mentally ill ‑
Procedure.
Any person alleged to be mentally ill within the meaning of
this act, and who is not in confinement on a criminal charge, and who has no
criminal charges pending against him, may be admitted to a private institution
or hospital as defined in the act by compliance with any one of the following
procedures:
(A) On voluntary application, or
(B) On court certification.
§43A‑8‑104. Voluntary admission.
A mentally ill person may request voluntary admission to any
private hospital or institution, as defined by this act, in the same manner and
by the same procedure as any other type of patient that is admitted to said
institution or hospital. Minor patients
may be admitted on application of parent, guardian, or the person having
custody. Patients admitted voluntarily
who give notice in writing of their desire or intention to leave said private
hospital or institution must be released forthwith; provided, that if in the
judgment of the attending physician the patient's release would be injurious to
the welfare of the patient or the public, such patient may be detained for so
long as is reasonably necessary to initiate the court certification proceedings
provided by law; provided that the attending physician shall immediately notify
the judge of the district court in which said private hospital or institution
is located by telephone or otherwise, confirmed by a written communication,
that such patient is so detained, and that such detention shall not exceed
three (3) days.
§43A‑8‑105. Court certification.
The procedure for court certification to a private hospital
or institution will be the same as that pertaining to court certification of
patients to state mental hospitals in the Mental Health Law, except that before
commitment to a private hospital or institution is made a written report will
be submitted to the court containing the following information:
(A) The name of the petitioner,
relative, or guardian requesting commitment to a private hospital or
institution, and the name of the private hospital or institution.
(B) The name of the physician who
will be the attending physician during the period of the patient's
hospitalization in said private hospital or institution. The qualifications for the attending
physician shall be the same as those set forth for a "qualified
examiner" by the Mental Health Law.
(C) A statement by the person in
charge of said private hospital or institution, or someone designated by him, that
the alleged mentally ill person will be admitted on presentation of a valid
order for admission. This statement
shall be dated no more than five (5) days prior to the date of the hearing.
A form for the filing of the information required herein
shall be prescribed by the Director of Mental Health, shall be printed on eight
and one‑half‑inch by eleven‑inch paper, and shall be
substantially in the following form:
REQUEST FOR COMMITMENT TO A
PRIVATE HOSPITAL OR
INSTITUTION
I, _____, bearing the relationship of _____ to ______,
against whom a petition for commitment as a mentally ill person has been filed
in the county court of ______ County, Oklahoma, do hereby request that, in the
event said ______ is found to be mentally ill, she/he be committed as a patient
to the ______ at ______, Oklahoma, a private hospital or institution as defined
by law. I hereby agree to comply with
the rules and regulations of said hospital or institution for the admission and
support of said patient. I further
certify that upon admission of said patient to said private hospital or
institution, ______ will be the attending physician, until discharge or
transfer of the patient, or until further notice to this court by me or the
attending physician.
Witness my hand this ______ day of _____________, 19__.
___________________
Subscribed and sworn to before me this ______ day of ______,
19__.
___________________
Notary Public
STATEMENT OF ATTENDING
PHYSICIAN
I, ______, do hereby certify that I will faithfully perform
the duties and responsibilities prescribed by law as the attending physician of
______, upon his/her commitment to the ______ until his/her discharge or
transfer, or until further notice to this court by me or the above‑named
petitioner, relative, or guardian.
Witness my hand this ______ day of ___________, 19__.
_____________________
Attending Physician
STATEMENT OF PERSON IN CHARGE
OF
OR INSTITUTION
I, ______, the duly appointed ______ of the ______, a
private hospital or institution containing beds for the reception, care and
treatment of persons with neuropsychiatric illnesses,
have discussed the rules and regulations of said hospital or institution
governing admission and support of patients with ______, the ______ of ______,
an alleged mentally ill person, and that if said person is committed to this
hospital or institution on or before ______, 19__, he will be admitted as a
patient.
_________________
§43A‑8‑106. Attending physician ‑ Responsibility ‑
Discharge of patient.
The responsibility for prescribing the treatment of any
patient admitted either voluntarily or by commitment, and for determining his
eligibility for discharge, shall be that of the attending physician. In the event the petitioner, relative, or
guardian wishes to change the attending physician, a written statement
releasing the attending physician of record and naming a new qualified
attending physician must be submitted to the court, accompanied by a written
statement from the new attending physician agreeing to assume the responsibilities
provided by law. In the event the
attending physician wishes to withdraw from the case, he shall notify the court
and the petitioner, relative, or guardian in writing. The petitioner, relative, or guardian shall
forthwith appoint a new attending physician in the manner set forth above.
In the event the petitioner, relative, or guardian does not
appoint a new attending physician within a reasonable length of time, then a
new attending physician will be appointed by the judge of the committing
court. The new attending physician must
be a qualified staff member of the private hospital or institution wherein the
patient is hospitalized, and must file a written statement with the committing
court agreeing to assume the responsibilities provided by law.
The attending physician may discharge a patient or grant
leave to a patient only as provided in this act. The attending physician may discharge a
patient at any time as follows:
(1) A patient who, in the judgment of
the attending physician, is recovered.
(2) A patient who is not recovered
but, in the judgment of the attending physician, will not benefit by further
treatment in a private hospital or institution.
A visiting or convalescent leave status may be granted a
patient for a period not exceeding six (6) months to any patient upon
authorization of the attending physician.
Neither the attending physician nor the private hospital or institution
shall be responsible for the patient or any act of the patient, while on
visiting or convalescent leave status.
If at the end of said six (6) months period the patient has not returned
as an inpatient to the private hospital or institution for further treatment,
he shall be automatically discharged from the books of said private hospital or
institution. The committing court shall
be notified by a written sealed communication of said discharge.
§43A‑8‑107. Leaving hospital or
institution without permission.
When a private hospital or institution has a mentally ill
person leave without permission, or to escape, the person in charge of the
private hospital or institution shall immediately notify the attending
physician and, in the case of a committed patient, the committing court. In the case of a committed patient, the
attending physician shall in turn immediately notify the petitioner, relative
or guardian who obtained the commitment to the private hospital or
institution. It shall be the
responsibility of the petitioner, relative, or guardian who obtained his
commitment to return the patient to the hospital or institution and, in the
event of their failure to return the escaped patient, then it shall be the
responsibility and duty of the sheriff of the county wherein the patient is
present to apprehend the patient and return him to the private hospital or
institution. The county shall reimburse
said officers for necessary travel expenses as provided by law.
§43A‑8‑108. Transfer of patients to state or federal
hospitals.
A patient committed to a private hospital or institution
under the provisions of this act may be transferred to a state or federal
hospital for the mentally ill at any time prior to discharge. The request for transfer shall be made to the
superintendent of the state hospital in the district serving the county of
residence of the patient. The request
for transfer may be made by the attending physician, the person in charge of
the private hospital or institution, or the petitioner, relative, or guardian
of the patient. All documents pertaining
to the commitment of the patient to the private hospital or institution, and an
abstract of the clinical history of the patient during treatment at the private
hospital or institution, shall be forwarded with the patient at the time of
transfer. The sheriff of the county in
which the patient is hospitalized is authorized to transport the patient to the
state hospital, and the expense of conveying the patient will be borne whenever
possible by the petitioner, relative, or guardian; otherwise, the sheriff or
his deputy shall be reimbursed for necessary travel expenses and subsistence as
provided by law for other official business.
A female attendant must accompany a sheriff transporting a female
patient.
§43A-8-201.
Repealed by Laws 1992, c. 298, § 42, eff.
§43A-8-202.
Repealed by Laws 1992, c. 298, § 42, eff.
§43A-8-203.
Repealed by Laws 1992, c. 298, § 42, eff.
§43A-8-204.
Repealed by Laws 1992, c. 298, § 42, eff.
§43A-11-101.
Short title.
This act shall be known and may be cited as the
"Advance Directives for Mental Health Treatment Act".
§43A-11-102.
Legislative findings.
A. The Legislature
finds that all competent persons have the fundamental right to control decisions
relating to their own mental health treatment, including the decision to accept
mental health treatment.
B. A capable adult
may make an advance directive of mental health treatment preferences or
instruction which may include, but is not limited to, consent to mental health
treatment.
§43A-11-103.
Definitions.
Whenever used in the Advance Directives for Mental Health
Treatment Act:
1. "Advance
directive for mental health treatment" means a written document
voluntarily executed by a declarant in accordance
with the requirements of this act and includes:
a. a declaration, or
b.
the appointment of an attorney-in-fact;
2. "Attending
physician or psychologist" means the physician or psychologist who has
primary responsibility for the mental health treatment of the declarant;
3.
"Attorney-in-fact" means an individual eighteen (18) years old
or older appointed by a declarant to make mental
health treatment decisions on behalf of the declarant
as provided by this act;
4.
"Capable" means the person is able to receive and evaluate
information effectively and communicate decisions regarding his or her mental
health treatment;
5.
"Declaration" means a written document voluntarily executed by
a declarant stating the mental health treatment
wishes of a declarant in the event the declarant is determined to be incapable and mental health
treatment is necessary;
6. "Declarant" means a capable person eighteen (18) years
of age or older who has executed an advance directive for mental health
treatment in accordance with the provisions of this act;
7. "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, rehabilitative
or preventive care to any person. The
term "health care facility" includes, but is not limited to, health
care facilities that are commonly referred to as hospitals, outpatient clinics,
organized ambulatory health care facilities, emergency care facilities and
centers, health maintenance organizations, and others providing similarly
organized services regardless of nomenclature;
8. "Mental
health treatment" means convulsive treatment, treatment with psychoactive
medication, and admission to and retention in a facility for a period up to
twenty-eight (28) days;
9.
"Physician" means an individual currently licensed to practice
medicine in this state;
10.
"Psychologist" means an individual currently licensed to
practice in this state as a clinical psychologist; and
11.
"Incapable" means that, in the opinion of two persons, who
shall be physicians or psychologists, a person's ability to receive and
evaluate information effectively or communicate decisions is impaired as the
result of a mental illness to such an extent that the person currently lacks
the capacity to make mental health treatment decisions.
§43A-11-104.
Execution - Rights not affected - Presumptions.
A. Any capable person
eighteen (18) years of age or older may execute an advance directive for mental
health treatment stating the mental health treatment wishes of the person in
the event the person is determined to be incapable and mental health treatment
is determined to be necessary as provided by Section 10 of this act. An advance directive for mental health
treatment may include but is not limited to consent to inpatient mental health
treatment.
B. An advance
directive for mental health treatment may be executed by:
1.
Executing a declaration; or
2.
Appointing an attorney-in-fact; or
3.
Both executing a declaration and appointing an attorney-in-fact. If executed, the appointment of an
attorney-in-fact shall be attached to the declaration.
C. The Advance
Directives for Mental Health Treatment Act:
1.
Shall not affect the right of an individual to make decisions about
mental health treatment, so long as the individual is capable; and
2.
Creates no presumption concerning the intention of an individual who has
revoked or has not executed an advance directive for mental health treatment.
D. For the purpose of
the Advance Directives for Mental Health Treatment Act:
1.
If a person is incapable at the time of a determination that mental
health treatment is necessary, an advance directive for mental health treatment
executed in accordance with the Advance Directives for Mental Health Treatment
Act is presumed to be valid; and
2.
A physician, psychologist or health care facility may presume, in the
absence of actual notice to the contrary, that a person who executed an advance
directive for mental health treatment was of sound mind when the advance
directive for mental health treatment was executed.
E. A person shall not
be required to execute or to refrain from executing an advance directive for
mental health treatment as a criterion for insurance, as a condition for
receiving mental or physical health services, or as a condition of discharge
from a health care facility.
F. The fact that a
person has executed an advance directive for mental health treatment shall not
constitute an indication of mental incompetence.
§43A-11-105.
Validity - Witnesses - Eligibility as attorney-in-fact.
A. An advance
directive for mental health treatment is valid only if it is signed by the declarant and two capable witnesses eighteen (18) years of
age or older. The witnesses shall
attest that the declarant:
1.
Is known to them;
2.
Signed the advance directive for mental health treatment in their
presence;
3.
Appears to be capable; and
4.
Is not acting under duress, fraud or undue influence.
B. None of the
following persons shall be eligible to serve as attorney-in-fact to the signing
of an advance directive for mental health treatment:
1.
The attending physician or psychologist or an employee of the physician
or psychologist; or
2.
An owner, operator or employee of a health care facility in which the declarant is a patient or resident.
§43A-11-106.
Form of advance directive - Designation and authority of
attorney-in-fact.
A. A declaration
stating the mental health treatment wishes of the declarant
executed in accordance with the provisions of this act shall be substantially
in the form provided by subsection E of this section.
B. A declarant may designate a capable person eighteen (18)
years of age or older to act as attorney-in-fact to make mental health
treatment decisions. An alternative
attorney-in-fact may also be designated to act as attorney-in-fact if the original
attorney-in-fact is unable or unwilling to act at any time. An appointment of an attorney-in-fact shall
be substantially in the form provided by subsection E of this section.
C. An attorney-in-fact
who has accepted the appointment in writing shall have authority to make
decisions, in consultation with the attending physician or psychologist, about
mental health treatment on behalf of the declarant
only when the declarant is certified as incapable and
to require mental health treatment as provided by Section 10 of this act.
1.
These decisions shall be consistent with any wishes or instructions the declarant has expressed in the declaration. If the wishes or instructions of the declarant are not expressed, the attorney-in-fact shall act
in what the attorney-in-fact believes to be in the best interest of the declarant.
2.
The attorney-in-fact may consent to inpatient mental health treatment on
behalf of the declarant if so authorized in the
advance directive for mental health treatment.
D. An
attorney-in-fact may withdraw by giving notice to the declarant. If a declarant is
incapable, the attorney-in-fact may withdraw by giving notice to the named
alternative attorney-in-fact if any, and if none then to the attending
physician or provider. The attending
physician or provider shall note the withdrawal of the last named
attorney-in-fact as part of the declarant's medical
record.
E. An advance
directive for mental health treatment shall be notarized and shall be in
substantially the following form:
ADVANCE DIRECTIVE FOR MENTAL HEALTH TREATMENT
I, _____________________, being of sound mind and eighteen
(18) years of age or older, willfully and voluntarily make known my wishes
about mental health treatment, by my instructions to others through my advance
directive for mental health treatment, or by my appointment of an
attorney-in-fact, or both. I thus do
hereby declare:
I. DECLARATION FOR
MENTAL HEALTH TREATMENT
If my attending physician or psychologist and another
physician or psychologist determine that my ability to receive and evaluate
information effectively or communicate decisions is impaired to such an extent
that I lack the capacity to refuse or consent to mental health treatment and
that mental health treatment is necessary, I direct my attending physician or
psychologist and other health care providers, pursuant to the Advance
Directives for Mental Health Treatment Act, to provide the mental health
treatment I have indicated below by my signature.
I understand that "mental health treatment" means
convulsive treatment, treatment with psychoactive medication, and admission to
and retention in a health care facility for a period up to twenty-eight (28)
days.
I direct the following concerning my mental health
care:___________________________________________________
________________________________________________________________
I further state that this document and the information
contained in it may be released to any requesting licensed mental health
professional.
____________________________ ___________________
Declarant's Signature Date
____________________________ ___________________
Witness 1 Date
____________________________ ___________________
Witness 2 Date
II. APPOINTMENT OF
ATTORNEY-IN-FACT
If my attending physician or psychologist and another
physician or psychologist determine that my ability to receive and evaluate
information effectively or communicate decisions is impaired to such an extent
that I lack the capacity to refuse or consent to mental health treatment and
that mental health treatment is necessary, I direct my attending physician or
psychologist and other health care providers, pursuant to the Advance
Directives for Mental Health Treatment Act, to follow the instructions of my
attorney-in-fact.
I hereby appoint:
NAME _____________________________________
ADDRESS __________________________________
TELEPHONE #_______________________________
to act as my attorney-in-fact to make decisions regarding my
mental health treatment if I become incapable of giving or withholding informed
consent for that treatment.
If the person named above refuses or is unable to act on
my behalf, or if I revoke that person's
authority to act as my attorney-in-fact, I authorize the following person to
act as my attorney-in-fact:
NAME ______________________________________
ADDRESS ___________________________________
TELEPHONE #________________________________
My attorney-in-fact is authorized to make decisions which
are consistent with the wishes I have
expressed in my declaration. If my
wishes are not expressed, my attorney-in-fact is to act in what he or she
believes to be my best interest.
_______________________________________
(Signature of Declarant/Date)
III. CONFLICTING
PROVISION
I understand that if I have completed both a declaration and
have appointed an attorney-in-fact and if there is a conflict between my
attorney-in-fact's decision and my declaration, my declaration shall take
precedence unless I indicate otherwise.
____________________
___________ (signature)
IV. OTHER
PROVISIONS
a. In the absence of
my ability to give directions regarding my mental health treatment, it is my
intention that this advance directive for mental health treatment shall be
honored by my family and physicians or psychologists as the expression of my
legal right to consent or to refuse to consent to mental health treatment.
b. This advance
directive for mental health treatment shall be in effect until it is revoked.
c. I understand that
I may revoke this advance directive for mental health treatment at any time.
d. I understand and
agree that if I have any prior advance directives for mental health treatment,
and if I sign this advance directive for mental health treatment, my prior advance
directives for mental health treatment are revoked.
e. I understand the
full importance of this advance directive for mental health treatment and I am
emotionally and mentally competent to make this advance directive for mental
health treatment.
Signed this _____ day of__________, 19 __
___________________________________
(Signature)
___________________________________
City,
County and State of
This advance directive was signed in my presence.
___________________________________
(Signature of Witness)
___________________________________
(Address)
___________________________________
(Signature of Witness)
___________________________________
(Address)
§43A-11-107.
When advance directive becomes operative - Contrary or
conflicting instructions given by attorney-in-fact.
A. The wishes of a declarant, at all times while the declarant
is capable, shall supersede the effect of an advance directive for mental
health treatment.
B. An advance
directive for mental health treatment shall become operative when:
1.
It is delivered to the declarant's physician
or psychologist; and
2.
The declarant is certified to be incapable and
to require mental health treatment as provided by Section 10 of this act.
C. An advance
directive for mental health treatment remains valid until:
1.
Revoked, expired or superseded by a subsequent advance directive for
mental health treatment; or
2.
Superseded by a court order.
D. A court order
shall supersede an advance directive for mental health treatment in all
circumstances.
E. Mental health
treatment instructions contained in a declaration executed in accordance with
this act shall supersede any contrary or conflicting instructions given by an
attorney-in-fact for mental health treatment decisions unless the authority
given to the attorney-in-fact in the advance directive for mental health
treatment expressly provides otherwise.
F. Except as provided
by subsection E of this section, in the event that more than one valid advance
directive for mental health treatment has been executed and not revoked, the
last advance directive for mental health treatment executed shall be construed
to be the mental health treatment wishes of the declarant
and shall become operative as provided by subsection B of this section.
§43A-11-108.
Delivery of advance directive to attending physician
or psychologist - Duty of attending physician or other mental health treatment
provider.
A. It shall be the
responsibility of the declarant to provide for delivery
of the advance directive for mental health treatment to the attending physician
or psychologist.
1.
In the event the declarant is comatose,
incompetent, or otherwise mentally or physically incapable after executing the
advance directive for mental health treatment, any other person may deliver the
advance directive for mental health treatment to the attending physician or
psychologist.
2.
Any person having possession of another person's advance directive for
mental health treatment and who becomes aware that the declarant
is in circumstances under which the terms of the advance directive for mental
health treatment may become operative shall deliver the advance directive for
mental health treatment to the declarant's attending
physician, psychologist or to any health care facility in which the declarant is a patient.
B. An attending
physician, psychologist or health care facility notified of the advance
directive for mental health treatment of a declarant
shall promptly make the declaration a part of the medical records of the declarant.
C. An attending
physician or other mental health treatment provider who has been notified of
the existence of an advance directive for mental health treatment executed
pursuant to this act shall make all reasonable efforts to obtain the advance
directive for mental health treatment.
§43A-11-109.
Revocation - Actual notice.
A. An advance
directive for mental health treatment may be revoked in whole or in part by the
declarant at any time while the declarant
is capable by any of the following methods:
1.
By being destroyed by the declarant or by some
person in the declarant's presence and at the declarant's direction;
2.
By a written revocation signed and dated by the declarant
expressing the declarant's intent to revoke;
3.
By a declarant's unambiguous verbal
expression, in the presence of two witnesses eighteen (18) years of age or
older, of an intent to revoke the declaration; or
4.
By a declarant's unambiguous verbal expression
to an attending physician or psychologist.
B. The revocation
shall become effective upon communication to the attending physician or
psychologist by the declarant or by both
witnesses. The attending physician or
psychologist shall record the time, date, and place when the notification of
the revocation was received.
C. In the absence of
actual notice of the revocation of an advance directive for mental health
treatment, no attending physician or psychologist, health care facility or
other person acting under the direction of an attending physician or
psychologist shall be subject to criminal prosecution or civil liability or be
deemed to have engaged in unprofessional conduct as a result of the provision
of medical treatment to a declarant in accordance
with the Advance Directives for Mental Health Treatment Act unless the absence
of actual notice resulted from the negligence of the health care provider,
physician, or other person.
§43A-11-110.
Examination of declarant -
Certification - Duty to follow terms of advance directive.
A. The attending
physician or psychologist shall continue to obtain the declarant's
informed consent to all mental health treatment decisions when the declarant is capable of providing informed consent or
refusal.
B. A declarant appearing to require mental health treatment
shall be examined by two persons, who shall be physicians or
psychologists. If after the examination
the declarant is determined to be incapable and is in
need of mental health treatment, a written certification, substantially in the
form provided by subsection E of this section, of the declarant's
condition shall be made a part of the declarant's
medical record.
C. The attending
physician or psychologist is authorized to act in accordance with an operative
advance directive for mental health treatment when the declarant
has been determined to be incapable and mental health treatment is
necessary. Except as otherwise provided
by this act with regard to conflicting instructions in an advance directive for
mental health treatment: