2022 -- S 2695 | |
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LC004860 | |
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STATE OF RHODE ISLAND | |
IN GENERAL ASSEMBLY | |
JANUARY SESSION, A.D. 2022 | |
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A N A C T | |
RELATING TO BEHAVIORAL HEALTHCARE, DEVELOPMENTAL DISABILITIES AND | |
HOSPITALS -- ADVANCE INSTRUCTION FOR MENTAL HEALTH TREATMENT | |
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Introduced By: Senators DiPalma, Miller, Coyne, and Seveney | |
Date Introduced: March 17, 2022 | |
Referred To: Senate Health & Human Services | |
It is enacted by the General Assembly as follows: | |
1 | SECTION 1. Title 40.1 of the General Laws entitled "BEHAVIORAL HEALTHCARE, |
2 | DEVELOPMENTAL DISABILITIES AND HOSPITALS" is hereby amended by adding thereto |
3 | the following chapter: |
4 | CHAPTER 5.5 |
5 | ADVANCE INSTRUCTION FOR MENTAL HEALTH TREATMENT |
6 | 40.1-5.5-1. Short title. |
7 | This chapter shall be known and may be cited as the "Advance Instruction for Mental |
8 | Health Treatment". |
9 | 40.1-5.5-2. Purpose and intent. |
10 | (a) The general assembly recognizes as a matter of public policy the fundamental right of |
11 | an individual to control the decisions relating to the individual's mental health care. |
12 | (b) The purpose and intent of this chapter is to establish an additional, nonexclusive method |
13 | for an individual to exercise the right to consent to or refuse mental health treatment when the |
14 | individual lacks sufficient understanding or capacity to make or communicate mental health |
15 | treatment decisions. |
16 | (c) This chapter is intended and shall be construed to be consistent with the provisions of |
17 | chapter 5 of this title; provided that, in the event of a conflict between the provisions of this chapter |
18 | and chapter 5 of this title, the provisions of this chapter shall control. |
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1 | 40.1-5.5-3. Definitions. |
2 | As used in this chapter, the following terms shall have the following meanings: |
3 | (1) "Advance instruction for mental health treatment" or "advance instruction" means a |
4 | written instrument, signed in the presence of two (2) qualified witnesses who believe the principal |
5 | to be of sound mind at the time of the signing, and acknowledged before a notary public, pursuant |
6 | to which the principal makes a declaration of instructions, information, and preferences regarding |
7 | the principal's mental health treatment and states that the principal is aware that the advance |
8 | instruction authorizes a mental health treatment provider to act according to the instruction. It may |
9 | also state the principal's instructions regarding, but not limited to, consent to or refusal of mental |
10 | health treatment when the principal is incapable. |
11 | (2) "Attending physician" means the physician who has primary responsibility for the care |
12 | and treatment of the principal. |
13 | (3) "Incapable" means that, in the opinion of a physician or eligible psychologist, the person |
14 | currently lacks sufficient understanding or capacity to make and communicate mental health |
15 | treatment decisions. As used in this chapter, the term "eligible psychologist" has the same meaning |
16 | as “psychologist” as set forth in § 40.1-5-2. |
17 | (4) "Mental health treatment" means the process of providing for the physical, emotional, |
18 | psychological, and social needs of the principal for the principal's mental illness. "Mental health |
19 | treatment" includes, but is not limited to, electroconvulsive treatment (ECT), commonly referred |
20 | to as "shock treatment", treatment of mental illness with psychotropic medication, and admission |
21 | to and retention in a facility for care or treatment of mental illness. |
22 | (5) "Principal" means the person making the advance instruction. |
23 | (6) "Qualified witness" means a witness who affirms that the principal is personally known |
24 | to the witness, that the principal signed or acknowledged the principal's signature on the advance |
25 | instruction in the presence of the witness, that the witness believes the principal to be of sound |
26 | mind and not to be under duress, fraud, or undue influence, and that the witness is not: |
27 | (i) The attending physician or mental health service provider or an employee of the |
28 | physician or mental health treatment provider; |
29 | (ii) An owner, operator, or employee of an owner or operator of a health care facility in |
30 | which the principal is a patient or resident; or |
31 | (iii) Related within the third degree to the principal or to the principal's spouse. |
32 | 40.1-5.5-4. Scope, use, and authority of advance instruction for mental health |
33 | treatment. |
34 | (a) Any adult of sound mind may make an advance instruction regarding mental health |
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1 | treatment. The advance instruction may include consent to or refusal of mental health treatment. |
2 | (b) An advance instruction may include, but is not limited to, the names and telephone |
3 | numbers of individuals to be contacted in case of a mental health crisis, situations that may cause |
4 | the principal to experience a mental health crisis, responses that may assist the principal to remain |
5 | in the principal's home during a mental health crisis, the types of assistance that may help stabilize |
6 | the principal if it becomes necessary to enter a facility, and medications that the principal is taking |
7 | or has taken in the past and the effects of those medications. |
8 | (c) An individual shall not be required to execute or to refrain from executing an advance |
9 | instruction as a condition for insurance coverage, as a condition for receiving mental or physical |
10 | health services, as a condition for receiving privileges while in a facility, or as a condition of |
11 | discharge from a facility. A principal, through an advance instruction, may grant or withhold |
12 | authority for mental health treatment, including, but not limited to, the use of psychotropic |
13 | medication, electroconvulsive treatment, and admission to and retention in a facility for the care or |
14 | treatment of mental illness. |
15 | (d) A principal may nominate, by advance instruction for mental health treatment, the |
16 | guardian of the person of the principal if a guardianship proceeding is thereafter commenced. The |
17 | court shall make its appointment in accordance with the principal's most recent nomination in an |
18 | unrevoked advance instruction for mental health treatment, except for good cause shown. |
19 | (e) If, following the execution of an advance instruction for mental health treatment, a court |
20 | of competent jurisdiction appoints a guardian of the person of the principal, or a general guardian |
21 | with powers over the person of the principal, the guardian shall follow the advance instruction |
22 | consistent with § 40.1-5-36. |
23 | (f) An advance instruction for mental health treatment may be combined with a health care |
24 | power of attorney or general power of attorney that is executed in accordance with the requirements |
25 | of chapter 5 of this title as long as each form shall be executed in accordance with its own statute. |
26 | 40.1-5.5-5. Effectiveness, duration and revocation. |
27 | (a) A validly executed advance instruction becomes effective upon its proper execution and |
28 | remains valid until revoked. |
29 | (b) The attending physician or other mental health treatment provider may consider valid |
30 | and rely upon an advance instruction, or a copy of that advance instruction, in the absence of actual |
31 | knowledge of its revocation or invalidity. |
32 | (c) An attending physician or other mental health treatment provider may presume that a |
33 | person who executed an advance instruction in accordance with this chapter was of sound mind |
34 | and acted voluntarily when he or she executed the advance instruction. |
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1 | (d) An attending physician or other mental health treatment provider shall act in accordance |
2 | with an advance instruction when the principal has been determined to be incapable. If a patient is |
3 | incapable, an advance instruction executed in accordance with this chapter is presumed to be valid. |
4 | (e) The attending physician or mental health treatment provider shall continue to obtain the |
5 | principal's informed consent to all mental health treatment decisions when the principal is capable |
6 | of providing informed consent or refusal. Unless the principal is deemed incapable by the attending |
7 | physician or eligible psychologist, the instructions of the principal at the time of treatment shall |
8 | supersede the declarations expressed in the principal's advance instruction. |
9 | (f) The fact of a principal having executed an advance instruction shall not be considered |
10 | an indication of a principal's capacity to make or communicate mental health treatment decisions |
11 | at such times as those decisions are required. |
12 | (g) Upon being presented with an advance instruction, an attending physician or other |
13 | mental health treatment provider shall make the advance instruction a part of the principal's medical |
14 | record. When acting under authority of an advance instruction, an attending physician or other |
15 | mental health treatment provider shall comply with the advance instruction unless: |
16 | (1) Compliance, in the opinion of the attending physician or other mental health treatment |
17 | provider, is not consistent with generally accepted community practice standards of treatment to |
18 | benefit the principal; |
19 | (2) Compliance is not consistent with the availability of treatments requested; |
20 | (3) Compliance is not consistent with applicable law; |
21 | (4) The principal is committed to a twenty-four (24) hour facility; or |
22 | (5) Compliance, in the opinion of the attending physician or other mental health treatment |
23 | provider, is not consistent with appropriate treatment in case of an emergency endangering life or |
24 | health. In the event that one part of the advance instruction is unable to be followed because of one |
25 | or more of the above exceptions, all other parts of the advance instruction shall nonetheless be |
26 | followed. |
27 | (h) If the attending physician or other mental health treatment provider is unwilling at any |
28 | time to comply with any part or parts of an advance instruction for one or more of the reasons set |
29 | out in subsections (g)(1) through (g)(5) of this section, the attending physician or other mental |
30 | health care treatment provider shall promptly notify the principal and, if applicable, the health care |
31 | agent and shall document the reason for not complying with the advance instruction and shall |
32 | document the notification in the principal's medical record. |
33 | (i) An advance instruction does not limit any authority of an attending physician or other |
34 | mental health treatment provider to either take a person into custody, or to admit, retain, or treat a |
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1 | person in a facility pursuant to chapter 5 of this title. |
2 | (j) An advance instruction may be revoked at any time by the principal as long as the |
3 | principal is not incapable. The principal may exercise this right of revocation in any manner by |
4 | which the principal is able to communicate an intent to revoke and by notifying the revocation to |
5 | the treating physician or other mental health treatment provider. The attending physician or other |
6 | mental health treatment provider shall note the revocation as part of the principal's medical record. |
7 | 40.1-5.5-6. Reliance on advance instruction for mental health treatment. |
8 | (a) An attending physician or eligible psychologist who in good faith determines that the |
9 | principal is or is not incapable for the purpose of deciding whether to proceed or not to proceed |
10 | according to an advance instruction, is not subject to criminal prosecution, civil liability, or |
11 | professional disciplinary action for making and acting upon that determination. |
12 | (b) In the absence of actual knowledge of the revocation of an advance instruction, no |
13 | attending physician or other mental health treatment provider shall be subject to criminal |
14 | prosecution or civil liability or be deemed to have engaged in unprofessional conduct as a result of |
15 | the provision of treatment to a principal in accordance with this chapter unless the absence of actual |
16 | knowledge resulted from the negligence of the attending physician or mental health treatment |
17 | provider. |
18 | (c) An attending physician or mental health treatment provider who administers or does |
19 | not administer mental health treatment according to and in good faith reliance upon the validity of |
20 | an advance instruction is not subject to criminal prosecution, civil liability, or professional |
21 | disciplinary action resulting from a subsequent finding of an advance instruction's invalidity. |
22 | (d) No attending physician or mental health treatment provider who administers or does |
23 | not administer treatment under authorization obtained pursuant to this chapter shall incur liability |
24 | arising out of a claim to the extent that the claim is based on lack of informed consent or |
25 | authorization for this action. |
26 | (e) This section shall not be construed as affecting or limiting any liability that arises out |
27 | of a negligent act or omission in connection with the medical diagnosis, care, or treatment of a |
28 | principal under an advance instruction or that arises out of any deviation from reasonable medical |
29 | standards. |
30 | 40.1-5.5-7. Penalties. |
31 | It shall be a misdemeanor for a person, without authorization of the principal, willfully to |
32 | alter, forge, conceal, or destroy an instrument, the reinstatement or revocation of an instrument, or |
33 | any other evidence or document reflecting the principal's desires and interests, with the intent or |
34 | effect of affecting a mental health treatment decision. |
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1 | 40.1-5.5-8. Statutory form for advance instruction for mental health treatment. |
2 | (a) This chapter shall not be construed to invalidate an advance instruction for mental |
3 | health treatment that was executed prior to January 1, 2023, and was otherwise valid. |
4 | (b) The use of the following or similar form after the effective date of this chapter in the |
5 | creation of an advance instruction for mental health treatment is lawful, and, when used, it shall |
6 | specifically meet the requirements and be construed in accordance with the provisions of this |
7 | chapter. |
8 | ADVANCE INSTRUCTION FOR MENTAL HEALTH TREATMENT |
9 | I, ___________________________, being an adult of sound mind, willfully and |
10 | voluntarily make this advance instruction for mental health treatment to be followed if it is |
11 | determined by a physician or eligible psychologist that my ability to receive and evaluate |
12 | information effectively or communicate decisions is impaired to such an extent that I lack the |
13 | capacity to refuse or consent to mental health treatment. "Mental health treatment" means the |
14 | process of providing for the physical, emotional, psychological, and social needs of the principal. |
15 | "Mental health treatment" includes electroconvulsive treatment (ECT), commonly referred to as |
16 | "shock treatment", treatment of mental illness with psychotropic medication, and admission to and |
17 | retention in a facility for care or treatment of mental illness. I understand that under § 40.1-5-6, |
18 | other than for specific exceptions stated there, mental health treatment may not be administered |
19 | without my express and informed written consent or, if I am incapable of giving my informed |
20 | consent, the express and informed consent of my legally responsible person, my health care agent |
21 | named pursuant to a valid health care power of attorney, or my consent expressed in this advance |
22 | instruction for mental health treatment. I understand that I may become incapable of giving or |
23 | withholding informed consent for mental health treatment due to the symptoms of a diagnosed |
24 | mental disorder. These symptoms may include: |
25 | PSYCHOACTIVE MEDICATIONS |
26 | If I become incapable of giving or withholding informed consent for mental health |
27 | treatment, my instructions regarding psychoactive medications are as follows: |
28 | (Place initials beside choice.) |
29 | I consent to the administration of the following medications: |
30 | I do not consent to the administration of the following medications: |
31 | __________________________________________________________________ |
32 | __________________________________________________________________ |
33 | Conditions or limitations:_________________________________________________ |
34 | __________________________________________________________________ |
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1 | __________________________________________________________________ |
2 | ADMISSION TO AND RETENTION IN FACILITY |
3 | If I become incapable of giving or withholding informed consent for mental health |
4 | treatment, my instructions regarding admission to and retention in a health care facility for mental |
5 | health treatment are as follows: (Place initials beside choice.) |
6 | I consent to being admitted to a health care facility for mental health treatment. |
7 | My facility preference is__________________________________________________ |
8 | I do not consent to being admitted to a health care facility for mental health treatment. |
9 | This advance instruction cannot, by law, provide consent to retain me in a facility for more |
10 | than ten (10) days. |
11 | Conditions or limitations__________________________________________________ |
12 | __________________________________________________________________ |
13 | ADDITIONAL INSTRUCTIONS |
14 | These instructions shall apply during the entire length of my incapacity. In case of mental |
15 | health crisis, please contact: |
16 | 1. Name:________________________________________________________ |
17 | Home Address:______________________________________________ |
18 | Home Telephone Number:______________________________________ |
19 | Work Telephone Number:______________________________________ |
20 | Relationship to Me:___________________________________________ |
21 | 2. Name:________________________________________________________ |
22 | Home Address:______________________________________________ |
23 | Home Telephone Number:______________________________________ |
24 | Work Telephone Number:______________________________________ |
25 | Relationship to Me:___________________________________________ |
26 | 3. My Physician: |
27 | Name:_____________________________________________________ |
28 | Telephone Number:___________________________________________ |
29 | 4. My Therapist: |
30 | Name:_____________________________________________________ |
31 | Telephone Number:___________________________________________ |
32 | The following may cause me to experience a mental health crisis: |
33 | __________________________________________________________________ |
34 | __________________________________________________________________ |
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1 | The following may help me avoid a hospitalization:_________________________ |
2 | __________________________________________________________________ |
3 | __________________________________________________________________ |
4 | I generally react to being hospitalized as follows:______________________________ |
5 | __________________________________________________________________ |
6 | __________________________________________________________________ |
7 | Staff of the hospital or crisis unit can help me by doing the following: |
8 | __________________________________________________________________ |
9 | __________________________________________________________________ |
10 | __________________________________________________________________ |
11 | I give permission for the following person or people to visit me: |
12 | __________________________________________________________________ |
13 | __________________________________________________________________ |
14 | __________________________________________________________________ |
15 | Instructions concerning any other medical interventions, such as electroconvulsive (ECT) |
16 | treatment (commonly referred to as "shock treatment"): |
17 | __________________________________________________________________ |
18 | __________________________________________________________________ |
19 | __________________________________________________________________ |
20 | __________________________________________________________________ |
21 | Other instructions:___________________________________________________ |
22 | __________________________________________________________________ |
23 | __________________________________________________________________ |
24 | __________________________________________________________________ |
25 | __________________________________________________________________ |
26 | I have attached an additional sheet of instructions to be followed and considered part of |
27 | this advance instruction. |
28 | SHARING OF INFORMATION BY PROVIDERS |
29 | I understand that the information in this document may be shared by my mental health |
30 | treatment provider with any other mental health treatment provider who may serve me when |
31 | necessary to provide treatment in accordance with this advance instruction. |
32 | Other instructions about sharing of information: |
33 | __________________________________________________________________ |
34 | __________________________________________________________________ |
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1 | SIGNATURE OF PRINCIPAL |
2 | By signing here, I indicate that I am mentally alert and competent, fully informed as to the |
3 | contents of this document, and understand the full impact of having made this advance instruction |
4 | for mental health treatment. |
5 | Signature of Principal:_____________________________________ |
6 | Date:___________________________________________________ |
7 | NATURE OF WITNESSES |
8 | I hereby state that the principal is personally known to me, that the principal signed or |
9 | acknowledged the principal's signature on this advance instruction for mental health treatment in |
10 | my presence, that the principal appears to be of sound mind and not under duress, fraud, or undue |
11 | influence, and that I am not: |
12 | (1) The attending physician or mental health service provider or an employee of the |
13 | physician or mental health treatment provider; |
14 | (2) An owner, operator, or employee of an owner or operator of a health care facility in |
15 | which the principal is a patient or resident; or |
16 | (3) Related within the third degree to the principal or to the principal's spouse. |
17 | AFFIRMATION OF WITNESSES |
18 | We affirm that the principal is personally known to us, that the principal signed or |
19 | acknowledged the principal's signature on this advance instruction for mental health treatment in |
20 | our presence, that the principal appears to be of sound mind and not under duress, fraud, or undue |
21 | influence, and that neither of us is: |
22 | (1) A person appointed as an attorney-in-fact by this document; |
23 | (2) The principal's attending physician or mental health service provider or a relative of the |
24 | physician or provider; |
25 | (3) The owner, operator, or relative of an owner or operator of a facility in which the |
26 | principal is a patient or resident; or |
27 | (4) A person related to the principal by blood, marriage, or adoption. |
28 | Witnessed by: |
29 | Witness:_________________________ |
30 | Date:___________________________ |
31 | Witness:_________________________ |
32 | Date:___________________________ |
33 | STATE OF RHODE ISLAND |
34 | COUNTY OF________________________________ |
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1 | CERTIFICATION OF NOTARY PUBLIC |
2 | I, __________________________, a Notary Public in the State of Rhode Island, hereby |
3 | certify that ____________________ appeared before me and swore or affirmed to me and to the |
4 | witnesses in my presence that this instrument is an advance instruction for mental health treatment, |
5 | and that he/she willingly and voluntarily made and executed it as his/her free act and deed for the |
6 | purposes expressed in it. I further certify that _____________________and |
7 | _____________________, witnesses, appeared before me and swore or affirmed that they |
8 | witnessed _________________________ sign the attached advance instruction for mental health |
9 | treatment, believing him/her to be of sound mind; and also swore that at the time they witnessed |
10 | the signing they were not: (1) The attending physician or mental health treatment provider or an |
11 | employee of the physician or mental health treatment provider; and (2) They were not an owner, |
12 | operator, or employee of an owner or operator of a health care facility in which the principal is a |
13 | patient or resident; and (3) They were not related within the third degree to the principal or to the |
14 | principal's spouse. I further certify that I am satisfied as to the genuineness and due execution of |
15 | the instrument. This is the ____________ day |
16 | of___________________________,______________ |
17 | _____________________________________ |
18 | Notary Public:_________________________ |
19 | My Commission expires:________________ |
20 | NOTICE TO PERSON MAKING AN INSTRUCTION FOR MENTAL HEALTH |
21 | TREATMENT |
22 | This is an important legal document. It creates an instruction for mental health treatment. |
23 | Before signing this document you should know these important facts: This document allows you |
24 | to make decisions in advance about certain types of mental health treatment. The instructions you |
25 | include in this declaration will be followed if a physician or eligible psychologist determines that |
26 | you are incapable of making and communicating treatment decisions. Otherwise you will be |
27 | considered capable to give or withhold consent for the treatments. Your instructions may be |
28 | overridden if you are being held in accordance with civil commitment law. Under the Health Care |
29 | Power of Attorney you may also appoint a person as your health care agent to make treatment |
30 | decisions for you if you become incapable. You have the right to revoke this document at any time |
31 | you have not been determined to be incapable. YOU MAY NOT REVOKE THIS ADVANCE |
32 | INSTRUCTION WHEN YOU ARE FOUND INCAPABLE BY A PHYSICIAN OR OTHER |
33 | AUTHORIZED MENTAL HEALTH TREATMENT PROVIDER. A revocation is effective when |
34 | it is communicated to your attending physician or other provider. The physician or other provider |
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1 | shall note the revocation in your medical record. To be valid, this advance instruction must be |
2 | signed by two (2) qualified witnesses, personally known to you, who are present when you sign or |
3 | acknowledge your signature. It must also be acknowledged before a notary public. |
4 | NOTICE TO PHYSICIAN OR OTHER MENTAL HEALTH TREATMENT PROVIDER |
5 | Under Rhode Island law, a person may use this advance instruction to provide consent for |
6 | future mental health treatment if the person later becomes incapable of making those decisions. |
7 | Under the Health Care Power of Attorney the person may also appoint a health care agent to make |
8 | mental health treatment decisions for the person when incapable. A person is "incapable" when in |
9 | the opinion of a physician or eligible psychologist the person currently lacks sufficient |
10 | understanding or capacity to make and communicate mental health treatment decisions. This |
11 | document becomes effective upon its proper execution and remains valid unless revoked. Upon |
12 | being presented with this advance instruction, the physician or other provider must make it a part |
13 | of the person's medical record. The attending physician or other mental health treatment provider |
14 | must act in accordance with the statements expressed in the advance instruction when the person is |
15 | determined to be incapable, unless compliance is not consistent with § 40.1-5.5-5(g). The physician |
16 | or other mental health treatment provider shall promptly notify the principal and, if applicable, the |
17 | health care agent, and document noncompliance with any part of an advance instruction in the |
18 | principal's medical record. The physician or other mental health treatment provider may rely upon |
19 | the authority of a signed, witnessed, dated, and notarized advance instruction, as provided in § 40.1- |
20 | 5.5-6. |
21 | 40.1-5.5-9. Severability. |
22 | If any provisions of this chapter or the application thereof to any person or circumstance is |
23 | for any reason held to be invalid, the remainder of the chapter and the application of such provision |
24 | to other persons or circumstances shall not be affected thereby. |
25 | SECTION 2. This act shall take effect on January 1, 2023. |
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EXPLANATION | |
BY THE LEGISLATIVE COUNCIL | |
OF | |
A N A C T | |
RELATING TO BEHAVIORAL HEALTHCARE, DEVELOPMENTAL DISABILITIES AND | |
HOSPITALS -- ADVANCE INSTRUCTION FOR MENTAL HEALTH TREATMENT | |
*** | |
1 | This act would allow an individual to exercise their right to consent to or refuse mental |
2 | health treatment through an advance instruction when the individual lacks sufficient understanding |
3 | or capacity to make or communicate mental health treatment decisions. A validly executed advance |
4 | instruction would become effective upon its proper execution and remain effective until revoked |
5 | by the individual. This act would allow an attending physician or other mental health treatment |
6 | provider to rely upon such advance instruction, and act in accordance with the advance instruction, |
7 | when an individual has been determined to be incapable without fear of criminal prosecution, civil |
8 | liability or professional disciplinary action. |
9 | This act would take effect on January 1, 2023. |
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