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

     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:

     SECTION 1. Title 40.1 of the General Laws entitled "BEHAVIORAL HEALTHCARE,

DEVELOPMENTAL DISABILITIES AND HOSPITALS" is hereby amended by adding thereto

the following chapter:

CHAPTER 5.5

ADVANCE INSTRUCTION FOR MENTAL HEALTH TREATMENT

     40.1-5.5-1. Short title.

     This chapter shall be known and may be cited as the "Advance Instruction for Mental

Health Treatment".

     40.1-5.5-2. Purpose and intent.

     (a) The general assembly recognizes as a matter of public policy the fundamental right of

an individual to control the decisions relating to the individual's mental health care.

     (b) The purpose and intent of this chapter is to establish an additional, nonexclusive method

for an individual to exercise the right to consent to or refuse mental health treatment when the

individual lacks sufficient understanding or capacity to make or communicate mental health

treatment decisions.

     (c) This chapter is intended and shall be construed to be consistent with the provisions of

chapter 5 of this title; provided that, in the event of a conflict between the provisions of this chapter

and chapter 5 of this title, the provisions of this chapter shall control.

     40.1-5.5-3. Definitions.

     As used in this chapter, the following terms shall have the following meanings:

     (1) "Advance instruction for mental health treatment" or "advance instruction" means a

written instrument, signed in the presence of two (2) qualified witnesses who believe the principal

to be of sound mind at the time of the signing, and acknowledged before a notary public, pursuant

to which the principal makes a declaration of instructions, information, and preferences regarding

the principal's mental health treatment and states that the principal is aware that the advance

instruction authorizes a mental health treatment provider to act according to the instruction. It may

also state the principal's instructions regarding, but not limited to, consent to or refusal of mental

health treatment when the principal is incapable.

     (2) "Attending physician" means the physician who has primary responsibility for the care

and treatment of the principal.

     (3) "Incapable" means that, in the opinion of a physician or eligible psychologist, the person

currently lacks sufficient understanding or capacity to make and communicate mental health

treatment decisions. As used in this chapter, the term "eligible psychologist" has the same meaning

as “psychologist” as set forth in § 40.1-5-2.

     (4) "Mental health treatment" means the process of providing for the physical, emotional,

psychological, and social needs of the principal for the principal's mental illness. "Mental health

treatment" includes, but is not limited to, electroconvulsive treatment (ECT), commonly referred

to as "shock treatment", treatment of mental illness with psychotropic medication, and admission

to and retention in a facility for care or treatment of mental illness.

     (5) "Principal" means the person making the advance instruction.

     (6) "Qualified witness" means a witness who affirms that the principal is personally known

to the witness, that the principal signed or acknowledged the principal's signature on the advance

instruction in the presence of the witness, that the witness believes the principal to be of sound

mind and not to be under duress, fraud, or undue influence, and that the witness is not:

     (i) The attending physician or mental health service provider or an employee of the

physician or mental health treatment provider;

     (ii) An owner, operator, or employee of an owner or operator of a health care facility in

which the principal is a patient or resident; or

     (iii) Related within the third degree to the principal or to the principal's spouse.

     40.1-5.5-4. Scope, use, and authority of advance instruction for mental health

treatment.

     (a) Any adult of sound mind may make an advance instruction regarding mental health

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treatment. The advance instruction may include consent to or refusal of mental health treatment.

     (b) An advance instruction may include, but is not limited to, the names and telephone

numbers of individuals to be contacted in case of a mental health crisis, situations that may cause

the principal to experience a mental health crisis, responses that may assist the principal to remain

in the principal's home during a mental health crisis, the types of assistance that may help stabilize

the principal if it becomes necessary to enter a facility, and medications that the principal is taking

or has taken in the past and the effects of those medications.

     (c) An individual shall not be required to execute or to refrain from executing an advance

instruction as a condition for insurance coverage, as a condition for receiving mental or physical

health services, as a condition for receiving privileges while in a facility, or as a condition of

discharge from a facility. A principal, through an advance instruction, may grant or withhold

authority for mental health treatment, including, but not limited to, the use of psychotropic

medication, electroconvulsive treatment, and admission to and retention in a facility for the care or

treatment of mental illness.

     (d) A principal may nominate, by advance instruction for mental health treatment, the

guardian of the person of the principal if a guardianship proceeding is thereafter commenced. The

court shall make its appointment in accordance with the principal's most recent nomination in an

unrevoked advance instruction for mental health treatment, except for good cause shown.

     (e) If, following the execution of an advance instruction for mental health treatment, a court

of competent jurisdiction appoints a guardian of the person of the principal, or a general guardian

with powers over the person of the principal, the guardian shall follow the advance instruction

consistent with § 40.1-5-36.

     (f) An advance instruction for mental health treatment may be combined with a health care

power of attorney or general power of attorney that is executed in accordance with the requirements

of chapter 5 of this title as long as each form shall be executed in accordance with its own statute.

     40.1-5.5-5. Effectiveness, duration and revocation.

     (a) A validly executed advance instruction becomes effective upon its proper execution and

remains valid until revoked.

     (b) The attending physician or other mental health treatment provider may consider valid

and rely upon an advance instruction, or a copy of that advance instruction, in the absence of actual

knowledge of its revocation or invalidity.

     (c) An attending physician or other mental health treatment provider may presume that a

person who executed an advance instruction in accordance with this chapter was of sound mind

and acted voluntarily when he or she executed the advance instruction.

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     (d) An attending physician or other mental health treatment provider shall act in accordance

with an advance instruction when the principal has been determined to be incapable. If a patient is

incapable, an advance instruction executed in accordance with this chapter is presumed to be valid.

     (e) The attending physician or mental health treatment provider shall continue to obtain the

principal's informed consent to all mental health treatment decisions when the principal is capable

of providing informed consent or refusal. Unless the principal is deemed incapable by the attending

physician or eligible psychologist, the instructions of the principal at the time of treatment shall

supersede the declarations expressed in the principal's advance instruction.

     (f) The fact of a principal having executed an advance instruction shall not be considered

an indication of a principal's capacity to make or communicate mental health treatment decisions

at such times as those decisions are required.

     (g) Upon being presented with an advance instruction, an attending physician or other

mental health treatment provider shall make the advance instruction a part of the principal's medical

record. When acting under authority of an advance instruction, an attending physician or other

mental health treatment provider shall comply with the advance instruction unless:

     (1) Compliance, in the opinion of the attending physician or other mental health treatment

provider, is not consistent with generally accepted community practice standards of treatment to

benefit the principal;

     (2) Compliance is not consistent with the availability of treatments requested;

     (3) Compliance is not consistent with applicable law;

     (4) The principal is committed to a twenty-four (24) hour facility; or

     (5) Compliance, in the opinion of the attending physician or other mental health treatment

provider, is not consistent with appropriate treatment in case of an emergency endangering life or

health. In the event that one part of the advance instruction is unable to be followed because of one

or more of the above exceptions, all other parts of the advance instruction shall nonetheless be

followed.

     (h) If the attending physician or other mental health treatment provider is unwilling at any

time to comply with any part or parts of an advance instruction for one or more of the reasons set

out in subsections (g)(1) through (g)(5) of this section, the attending physician or other mental

health care treatment provider shall promptly notify the principal and, if applicable, the health care

agent and shall document the reason for not complying with the advance instruction and shall

document the notification in the principal's medical record.

     (i) An advance instruction does not limit any authority of an attending physician or other

mental health treatment provider to either take a person into custody, or to admit, retain, or treat a

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person in a facility pursuant to chapter 5 of this title.

     (j) An advance instruction may be revoked at any time by the principal as long as the

principal is not incapable. The principal may exercise this right of revocation in any manner by

which the principal is able to communicate an intent to revoke and by notifying the revocation to

the treating physician or other mental health treatment provider. The attending physician or other

mental health treatment provider shall note the revocation as part of the principal's medical record.

     40.1-5.5-6. Reliance on advance instruction for mental health treatment.

     (a) An attending physician or eligible psychologist who in good faith determines that the

principal is or is not incapable for the purpose of deciding whether to proceed or not to proceed

according to an advance instruction, is not subject to criminal prosecution, civil liability, or

professional disciplinary action for making and acting upon that determination.

     (b) In the absence of actual knowledge of the revocation of an advance instruction, no

attending physician or other mental health treatment provider 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 treatment to a principal in accordance with this chapter unless the absence of actual

knowledge resulted from the negligence of the attending physician or mental health treatment

provider.

     (c) An attending physician or mental health treatment provider who administers or does

not administer mental health treatment according to and in good faith reliance upon the validity of

an advance instruction is not subject to criminal prosecution, civil liability, or professional

disciplinary action resulting from a subsequent finding of an advance instruction's invalidity.

     (d) No attending physician or mental health treatment provider who administers or does

not administer treatment under authorization obtained pursuant to this chapter shall incur liability

arising out of a claim to the extent that the claim is based on lack of informed consent or

authorization for this action.

     (e) This section shall not be construed as affecting or limiting any liability that arises out

of a negligent act or omission in connection with the medical diagnosis, care, or treatment of a

principal under an advance instruction or that arises out of any deviation from reasonable medical

standards.

     40.1-5.5-7. Penalties.

     It shall be a misdemeanor for a person, without authorization of the principal, willfully to

alter, forge, conceal, or destroy an instrument, the reinstatement or revocation of an instrument, or

any other evidence or document reflecting the principal's desires and interests, with the intent or

effect of affecting a mental health treatment decision.

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     40.1-5.5-8. Statutory form for advance instruction for mental health treatment.

(a) This chapter shall not be construed to invalidate an advance instruction for mental

health treatment that was executed prior to January 1, 2023, and was otherwise valid.

     (b) The use of the following or similar form after the effective date of this chapter in the

creation of an advance instruction for mental health treatment is lawful, and, when used, it shall

specifically meet the requirements and be construed in accordance with the provisions of this

chapter.

     ADVANCE INSTRUCTION FOR MENTAL HEALTH TREATMENT

     I, ___________________________, being an adult of sound mind, willfully and

voluntarily make this advance instruction for mental health treatment to be followed if it is

determined by a physician or eligible psychologist 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. "Mental health treatment" means the

process of providing for the physical, emotional, psychological, and social needs of the principal.

"Mental health treatment" includes electroconvulsive treatment (ECT), commonly referred to as

"shock treatment", treatment of mental illness with psychotropic medication, and admission to and

retention in a facility for care or treatment of mental illness. I understand that under § 40.1-5-6,

other than for specific exceptions stated there, mental health treatment may not be administered

without my express and informed written consent or, if I am incapable of giving my informed

consent, the express and informed consent of my legally responsible person, my health care agent

named pursuant to a valid health care power of attorney, or my consent expressed in this advance

instruction for mental health treatment. I understand that I may become incapable of giving or

withholding informed consent for mental health treatment due to the symptoms of a diagnosed

mental disorder. These symptoms may include:

     PSYCHOACTIVE MEDICATIONS

     If I become incapable of giving or withholding informed consent for mental health

treatment, my instructions regarding psychoactive medications are as follows:

     (Place initials beside choice.)

     I consent to the administration of the following medications:

     I do not consent to the administration of the following medications:

     __________________________________________________________________

     __________________________________________________________________

     Conditions or limitations:_________________________________________________

     __________________________________________________________________

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     __________________________________________________________________

     ADMISSION TO AND RETENTION IN FACILITY

     If I become incapable of giving or withholding informed consent for mental health

treatment, my instructions regarding admission to and retention in a health care facility for mental

health treatment are as follows: (Place initials beside choice.)

     I consent to being admitted to a health care facility for mental health treatment.

     My facility preference is__________________________________________________

     I do not consent to being admitted to a health care facility for mental health treatment.

     This advance instruction cannot, by law, provide consent to retain me in a facility for more

than ten (10) days.

     Conditions or limitations__________________________________________________

     __________________________________________________________________

     ADDITIONAL INSTRUCTIONS

     These instructions shall apply during the entire length of my incapacity. In case of mental

health crisis, please contact:

     1. Name:________________________________________________________

      Home Address:______________________________________________

      Home Telephone Number:______________________________________

      Work Telephone Number:______________________________________

      Relationship to Me:___________________________________________

     2. Name:________________________________________________________

      Home Address:______________________________________________

      Home Telephone Number:______________________________________

      Work Telephone Number:______________________________________

      Relationship to Me:___________________________________________

     3. My Physician:

     Name:_____________________________________________________

      Telephone Number:___________________________________________

     4. My Therapist:

     Name:_____________________________________________________

      Telephone Number:___________________________________________

     The following may cause me to experience a mental health crisis:

     __________________________________________________________________

     __________________________________________________________________

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     The following may help me avoid a hospitalization:_________________________

     __________________________________________________________________

     __________________________________________________________________

     I generally react to being hospitalized as follows:______________________________

     __________________________________________________________________

     __________________________________________________________________

     Staff of the hospital or crisis unit can help me by doing the following:

     __________________________________________________________________

     __________________________________________________________________

     __________________________________________________________________

     I give permission for the following person or people to visit me:

     __________________________________________________________________

     __________________________________________________________________

     __________________________________________________________________

     Instructions concerning any other medical interventions, such as electroconvulsive (ECT)

treatment (commonly referred to as "shock treatment"):

     __________________________________________________________________

     __________________________________________________________________

     __________________________________________________________________

     __________________________________________________________________

     Other instructions:___________________________________________________

     __________________________________________________________________

     __________________________________________________________________

     __________________________________________________________________

     __________________________________________________________________

     I have attached an additional sheet of instructions to be followed and considered part of

this advance instruction.

     SHARING OF INFORMATION BY PROVIDERS

     I understand that the information in this document may be shared by my mental health

treatment provider with any other mental health treatment provider who may serve me when

necessary to provide treatment in accordance with this advance instruction.

     Other instructions about sharing of information:

     __________________________________________________________________

     __________________________________________________________________

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     SIGNATURE OF PRINCIPAL

     By signing here, I indicate that I am mentally alert and competent, fully informed as to the

contents of this document, and understand the full impact of having made this advance instruction

for mental health treatment.

     Signature of Principal:_____________________________________

     Date:___________________________________________________

     NATURE OF WITNESSES

     I hereby state that the principal is personally known to me, that the principal signed or

acknowledged the principal's signature on this advance instruction for mental health treatment in

my presence, that the principal appears to be of sound mind and not under duress, fraud, or undue

influence, and that I am not:

     (1) The attending physician or mental health service provider or an employee of the

physician or mental health treatment provider;

     (2) An owner, operator, or employee of an owner or operator of a health care facility in

which the principal is a patient or resident; or

     (3) Related within the third degree to the principal or to the principal's spouse.

     AFFIRMATION OF WITNESSES

     We affirm that the principal is personally known to us, that the principal signed or

acknowledged the principal's signature on this advance instruction for mental health treatment in

our presence, that the principal appears to be of sound mind and not under duress, fraud, or undue

influence, and that neither of us is:

     (1) A person appointed as an attorney-in-fact by this document;

     (2) The principal's attending physician or mental health service provider or a relative of the

physician or provider;

     (3) The owner, operator, or relative of an owner or operator of a facility in which the

principal is a patient or resident; or

     (4) A person related to the principal by blood, marriage, or adoption.

     Witnessed by:

     Witness:_________________________

     Date:___________________________

     Witness:_________________________

     Date:___________________________

     STATE OF RHODE ISLAND

     COUNTY OF________________________________

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     CERTIFICATION OF NOTARY PUBLIC

     I, __________________________, a Notary Public in the State of Rhode Island, hereby

certify that ____________________ appeared before me and swore or affirmed to me and to the

witnesses in my presence that this instrument is an advance instruction for mental health treatment,

and that he/she willingly and voluntarily made and executed it as his/her free act and deed for the

purposes expressed in it. I further certify that _____________________and

_____________________, witnesses, appeared before me and swore or affirmed that they

witnessed _________________________ sign the attached advance instruction for mental health

treatment, believing him/her to be of sound mind; and also swore that at the time they witnessed

the signing they were not: (1) The attending physician or mental health treatment provider or an

employee of the physician or mental health treatment provider; and (2) They were not an owner,

operator, or employee of an owner or operator of a health care facility in which the principal is a

patient or resident; and (3) They were not related within the third degree to the principal or to the

principal's spouse. I further certify that I am satisfied as to the genuineness and due execution of

the instrument. This is the ____________ day

of___________________________,______________

     _____________________________________

     Notary Public:_________________________

     My Commission expires:________________

     NOTICE TO PERSON MAKING AN INSTRUCTION FOR MENTAL HEALTH

TREATMENT

     This is an important legal document. It creates an instruction for mental health treatment.

Before signing this document you should know these important facts: This document allows you

to make decisions in advance about certain types of mental health treatment. The instructions you

include in this declaration will be followed if a physician or eligible psychologist determines that

you are incapable of making and communicating treatment decisions. Otherwise you will be

considered capable to give or withhold consent for the treatments. Your instructions may be

overridden if you are being held in accordance with civil commitment law. Under the Health Care

Power of Attorney you may also appoint a person as your health care agent to make treatment

decisions for you if you become incapable. You have the right to revoke this document at any time

you have not been determined to be incapable. YOU MAY NOT REVOKE THIS ADVANCE

INSTRUCTION WHEN YOU ARE FOUND INCAPABLE BY A PHYSICIAN OR OTHER

AUTHORIZED MENTAL HEALTH TREATMENT PROVIDER. A revocation is effective when

it is communicated to your attending physician or other provider. The physician or other provider

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shall note the revocation in your medical record. To be valid, this advance instruction must be

signed by two (2) qualified witnesses, personally known to you, who are present when you sign or

acknowledge your signature. It must also be acknowledged before a notary public.

     NOTICE TO PHYSICIAN OR OTHER MENTAL HEALTH TREATMENT PROVIDER

     Under Rhode Island law, a person may use this advance instruction to provide consent for

future mental health treatment if the person later becomes incapable of making those decisions.

Under the Health Care Power of Attorney the person may also appoint a health care agent to make

mental health treatment decisions for the person when incapable. A person is "incapable" when in

the opinion of a physician or eligible psychologist the person currently lacks sufficient

understanding or capacity to make and communicate mental health treatment decisions. This

document becomes effective upon its proper execution and remains valid unless revoked. Upon

being presented with this advance instruction, the physician or other provider must make it a part

of the person's medical record. The attending physician or other mental health treatment provider

must act in accordance with the statements expressed in the advance instruction when the person is

determined to be incapable, unless compliance is not consistent with § 40.1-5.5-5(g). The physician

or other mental health treatment provider shall promptly notify the principal and, if applicable, the

health care agent, and document noncompliance with any part of an advance instruction in the

principal's medical record. The physician or other mental health treatment provider may rely upon

the authority of a signed, witnessed, dated, and notarized advance instruction, as provided in § 40.1-

5.5-6.

     40.1-5.5-9. Severability.

     If any provisions of this chapter or the application thereof to any person or circumstance is

for any reason held to be invalid, the remainder of the chapter and the application of such provision

to other persons or circumstances shall not be affected thereby.

     SECTION 2. This act shall take effect on January 1, 2023.

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LC004860

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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

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     This act would allow an individual to exercise their right to consent to or refuse mental

health treatment through an advance instruction when the individual lacks sufficient understanding

or capacity to make or communicate mental health treatment decisions. A validly executed advance

instruction would become effective upon its proper execution and remain effective until revoked

by the individual. This act would allow an attending physician or other mental health treatment

provider to rely upon such advance instruction, and act in accordance with the advance instruction,

when an individual has been determined to be incapable without fear of criminal prosecution, civil

liability or professional disciplinary action.

     This act would take effect on January 1, 2023.

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