Or. Admin. Code § 309-114-0020

Current through Register Vol. 63, No. 11, November 1, 2024

Section 309-114-0020 - Involuntary Administration of Significant Procedures to Persons Committed to the Division with Good Cause

(1) Good cause: Good cause exists to administer a significant procedure to an individual committed to the Division without informed consent if in the opinion of the treating physician or psychiatric nurse practitioner after consultation with the treatment team, the following factors are satisfied:

(a) Pursuant to OAR 309-114-0010(2), the individual is deemed unable to consent to, refuse, withhold or withdraw consent to the significant procedure. This determination must be documented on the treating physician's or psychiatric nurse practitioner's informed consent form and the independent examining physician's evaluation form. It must include the specific questions asked and answers given regarding the patient's ability to weigh the risks and benefits of the proposed treatment, alternative treatment and no treatment including, but not limited to all relevant factors listed in OAR 309-114-0010(3)(a).

(b) The proposed significant procedure is likely to restore or prevent deterioration of the person's mental or physical health, alleviate extreme suffering or save or extend the person's life. This factor is established conclusively for purposes of a hearing under OAR 309-114-0025 by introducing into evidence the treating physician's or psychiatric nurse practitioner's informed consent form and the independent examining physician's evaluation form, unless this factor is affirmatively raised as an issue by the patient or their representative at the hearing.

(c) The proposed significant procedure is the most appropriate treatment for the person's condition according to current clinical practice and other less intrusive procedures have been considered and all criteria and information set forth in OAR 309-114-0010(3)(a) were considered. This factor is established conclusively for purposes of a hearing under OAR 309-114-0025 by introducing into evidence the treating physician's or psychiatric nurse practitioner's informed consent form and the independent examining physician's evaluation form, unless this factor is affirmatively raised as an issue by the patient or their representative at the hearing.

(d) The institution made a conscientious effort to obtain informed consent from the patient. This factor is established conclusively for purposes of a hearing under OAR 309-114-0025 by introducing into evidence the treating physician's or psychiatric nurse practitioner's informed consent form unless this factor is affirmatively raised as an issue by the patient or their representative at the hearing. If the institution has reason to believe a patient has limited English language proficiency or the patient requests it, the institution must make reasonable accommodations to provide the patient with meaningful access to the informed consent process, such as providing the patient with the opportunity to have an interpreter orally translate written materials into the patient's native language and provide translation during the treating physician's or psychiatric nurse practitioner's attempts to obtain informed consent. A "conscientious effort" to obtain informed consent means the patient's treating physician or psychiatric nurse practitioner made at least two good faith attempts to obtain informed consent by attempting to explain the procedure to the patient and documenting those efforts in the patient's record.

(e) Because of the preliminary nature of their commitment, the following additional findings must be made for patients under ORS 161.370 and 419C.398 jurisdiction in order to show good cause under this rule:

(A) Medication is not requested for the sole purpose of restoring trial competency; and

(B) The patient is being medicated because of the patient's dangerousness or to treat the patient's grave disability.

(2) Independent Review: Prior to granting approval for the administration of a significant procedure for good cause to an individual committed to the Division, the superintendent or chief medical officer of a state institution for the mentally ill must obtain consultation and approval from an independent examining physician, or if a patient refuses to be examined, the superintendent or chief medical officer must document that an independent examining physician made at least two good faith attempts to examine the patient. The superintendent or chief medical officer must maintain a list of independent examining physicians and must seek consultation and approval from one of these independent examining physicians.

(3) The superintendent or chief medical officer must provide to a patient to whom a significant procedure is proposed to be administered written advance notice of the intent to seek consultation and approval of an independent examining physician for the purpose of administering the procedure without the patient's consent.

(4) The physician selected to conduct the independent consultation must:

(a) Review the person's medical chart including the records of efforts made to obtain the person's informed consent and

(A) Personally examine the individual at least one time; or

(B) If the patient refuses to be examined, the physician must make two good faith attempts to examine the patient. If the patient refuses to be examined during these two good faith attempts, the independent consultation and approval requirement outlined in subsection (4)(a)(A) and (4)(b) of this rule must be deemed to be fulfilled.

(b) Discuss the matter with the individual to determine the extent of the need for the procedure and the nature of the person's refusal, withholding or withdrawal or inability to consent to the significant procedure. This determination as well as the supporting evidence in the form of the specific questions asked and answers given regarding the patient's ability to weigh the risks and benefits of the proposed treatment, alternative treatment and no treatment must be documented in the patient's record;

(c) Consider additional information, if any, presented prior to or at the time of examination or interview as may be requested by the individual or anyone on behalf of the person; and

(d) Make a determination whether the factors required under these rules exist for the particular individual or that one or more factors are not present and complete a report of their findings which provides their approval or disapproval of the proposed significant procedure. The written report must be provided to:

(A) The superintendent or chief medical officer; and

(B) The individual to whom a significant procedure is proposed to be administered with a copy being made part of the person's record.

(5) Superintendent's Determination:

(a) The superintendent or chief medical officer must approve or disapprove of the administration of the significant procedure to an individual committed to the Division based on good cause provided that if the examining physician or psychiatric nurse practitioner found that one or more of the factors required by section (1) of this rule were not present or otherwise disapproved of the procedure; the superintendent or chief medical officer must not approve the significant procedure and it must not be performed;

(b) Approval of the significant procedure must be only for as long as no substantial increase in risk is encountered in administering the significant procedure or significant procedure of a similar class during the term of a person's commitment, but in no case longer than 180 days. Disapproval must be only for as long as no substantial change occurs in the person's condition during the term of commitment, but in no case longer than 180 days;

(c) Written notice of the superintendent's or chief medical officer's determination must be provided to the patient and made part of the individual's record. This notice must be delivered to the patient and fully explained by facility medical staff. This notice must include a clear statement of the decision to treat without informed consent, specific basis for the decision, what evidence was relied on to make the decision and include a clear notice of the opportunity to ask for a contested case hearing with an administrative law judge if the patient disagrees with the decision. Attached must be a form with a simple procedure to request a hearing. The patient indicating in writing or verbally to any staff member a desire to challenge the institution's decision must be sufficient to request a contested case hearing pursuant to OAR 309 114 0025. The patient must have 48 hours to request a contested case hearing after receiving this notice. If the patient does not request a hearing within the 48-hour period or the patient subsequently withdraws his initial hearing request and is not already receiving the significant procedure, the institution may involuntarily administer the significant procedure. A patient retains the right to request an initial hearing on the decision to administer a significant procedure without informed consent at any time.

(d) If the patient withdraws their initial request for hearing or refuses to attend the initial hearing without good cause, the administrative law judge must issue a dismissal order pursuant to OAR 137-003-0672(3). A dismissal order must allow the institution to immediately administer the significant procedure without informed consent as if the patient had never requested a hearing. If a dismissal order is issued, the patient may request a second hearing. If the patient withdraws his second request for hearing or refuses to attend the second hearing without good cause, the hearing must occur as scheduled with the institution presenting a prima facie case pursuant to ORS 183.417(4) and the administrative law judge must issue a proposed order by default. The institution must then issue a final order by default.

(e) Records of all reports by independent examining physicians of the determinations of the superintendent or chief medical officer under this rule must be maintained by the superintendent or chief medical officer in a separate file and must be summarized each year. Such summaries must show:

(A) Each type of proposed significant procedure for which consultation with an independent examining physician was sought;

(B) The number of times consultation was sought from a particular independent examining physician for each type of proposed significant procedure;

(C) The number of times each independent examining physician approved and disapproved each type of proposed significant procedure; and

(D) The number of times the superintendent or chief medical officer approved and disapproved each type of proposed significant procedure.

(f) The summaries referred to in subsection (5)(e) of this rule must be public records and must be made available to the public during reasonable business hours in accordance with ORS Chapter 192.

(6) When treatment is being administered without informed consent, the ward physician or psychiatric nurse practitioner must write a progress note addressing any changes in patient's capacity to give informed consent every 60 days.

(7) At any time that a patient's condition changes so that there appears to their treating physician or psychiatric nurse practitioner to be a substantial improvement in the patient's capacity to consent to or refuse treatment, a formal re assessment of the patient's capacity to consent must occur as described in OAR 309-114-0010 and 309-114-0020. No order to administer treatment without informed consent in non-emergency situations must be valid for longer than 180 days or the duration of the commitment, whichever is shorter, without re-establishing the need for the order by following the procedures described in OAR 309-114-0010 and 309-114-0020.

(8) When an individual is transferred to a state institution from a community hospital or another state institution where they were already being treated with a significant procedure without informed consent, the receiving institution must apply OAR 309-114-0000 through 309-114-0025 no later than 7 days after the date of admission to the new institution. A state institution can honor an existing order for involuntary administration of a significant procedure without informed consent if procedures such as those outlined in OAR 309-114-0010 through 309-114-0025 have already been applied and all necessary documentation is in the patient's file.

Or. Admin. Code § 309-114-0020

MHD 3-1983, f. 2-24-83, ef. 3-26-83; MHD 3-1988, f. 4-12-88, (and corrected 5-17-880, cert. ef. 6-1-88; MHS 14-2007(Temp), f. 11-30-07, cert. ef. 12-1-07 thru 5-29-08; MHS 2-2008(Temp), f. & cert. ef. 4-7-08 thru 10-4-08; MHS 6-2008, f. & cert. ef. 7-25-08; MHS 1-2009(Temp), f. & cert. ef. 1-23-09 thru 7-22-09; MHS 3-2009, f. & cert. ef. 6-26-09; MHS 6-2010(Temp), f. & cert. ef. 3-24-10 thru 9-20-10; MHS 12-2010, f. & cert. ef. 9-9-10; MHS 13-2010(Temp), f. & cert. ef. 11-19-10 thru 5-18-11; MHS 4-2011, f. & cert. ef. 5-19-11; MHS 12-2013(Temp), f. & cert. ef. 10-29-13 thru 4-27-14; MHS 9-2014, f. & cert. ef. 4-24-14; MHS 2-2015(Temp), f. & cert. ef. 4-24-15 thru 10-20-15; MHS 5-2015, f. & cert. ef. 8/28/2015; BHS 17-2018, amend filed 08/01/2018, effective 8/13/2018; BHS 9-2020, temporary amend filed 06/30/2020, effective 6/30/2020 through 12/26/2020; BHS 1-2021, amend filed 01/15/2021, effective 1/15/2021; BHS 3-2023, minor correction filed 01/26/2023, effective 1/26/2023; BHS 20-2024, amend filed 07/23/2024, effective 7/23/2024

To view tables referenced in rule text, click here to view rule.

Statutory/Other Authority: ORS 179.040 & 413.042

Statutes/Other Implemented: ORS 179.321, 426.070 & 426.385