Section 22-A102. INFORMED CONSENT FROM SUBSTITUTE DECISION-MAKER

 

102.1If, while or after presenting the information required by § 101.1 to a consumer, the consumer's treating psychiatrist or psychologist believe that the consumer is incapable of making or communicating a decision regarding the provision of a mental health service, mental health support or treatment, the psychiatrist or psychologist may seek certification of the consumer's incapacitation in accordance with D.C. Official Code § 21-2204.

 

(a)Certification of incapacity to make a treatment decision requires a determination by two physicians, one of whom shall be the consumer's treating psychiatrist, that the consumer lacks the capacity to understand the decision to be made, or to make or communicate a decision about the proposed treatment.

 

(b)A consumer shall not be deemed incapacitated if the consumer is capable of understanding the decision to be made, making the decision, and communicating the decision, but refuses to consent to a proposed treatment or makes a decision different than the MH provider would prefer.

 

102.2If a consumer has been certified as incapacitated in accordance with D.C. Official Code § 21-2204, the MH provider shall seek informed consent to the proposed mental health service, mental health support or course of treatment as follows:

 

(a)From the consumer's designated attorney-in-fact, if the consumer has executed a valid durable power of attorney for health care; or

 

(b)From a substitute health care decision-maker in accordance with D.C. Official Code § 21-2210.

 

102.3If a consumer has been certified as incapacitated in accordance with D.C. Official Code § 21-2204 and the MH provider is not able to obtain informed consent from either a designated attorney-in-fact or a substitute health care decision-maker, the MH provider shall petition the court for appointment of a guardian and seek informed consent from the guardian appointed by the court pursuant to D.C. Official Code § 21-2041, except as provided in § 103 and § 104 of this chapter.

 

102.4A MH provider shall seek appointment of a guardian for a consumer in accordance with subchapter V of Chapter 20 of Title 21 of the District of Columbia Official Code, if:

 

(a)A consumer remains incapacitated for purposes of making a particular health care decision for more than thirty (30) days following certification of incapacitation as described in § 102.1 of this chapter; and

 

(b)The consumer does not have an attorney-in-fact designated in a durable power of attorney document available to make a decision about the delivery of mental health services, mental health supports or treatment to the consumer.

 

102.5A substitute decision-maker shall act in accordance with the consumer's treatment preferences as expressed in an advance directive or a declaration of advance instructions. A substitute decision-maker's decision regarding mental health treatment which is based on the consumer's expressed treatment preferences shall be followed by DMH or the MH provider, except for good cause as documented in the consumer's clinical records, and shall never be overridden for the convenience of DMH or the MH provider.

 

102.6In the absence of an advance directive or declaration of advance instructions, a substitute decision-maker shall grant, refuse or withdraw consent to mental health treatment based on the known wishes of the consumer or, if the wishes of the consumer are unknown and cannot be ascertained, on a good faith belief as to the best interests of the consumer. D.C. Official Code § 21-2210(b). A substitute decision-maker may consent to the administration of medication for the consumer only in accordance with the consumer's treatment preferences as expressed in a durable power of attorney document or in a declaration of advance instructions for mental health treatment.

 

102.7A MH provider shall document whether the substitute decision-maker grants, refuses or withdraws consent to mental health treatment on behalf of a consumer in the consumer's clinical record. At least one (1) witness shall be present whenever a substitute decision-maker grants, refuses or withdraws consent to treatment on behalf of a consumer.

 

source

New by emergency and proposed rulemaking at 49 DCR 3058(July 19, 2002)[EXPIRED]; as amended by emergency and proposed rulemaking at 49 DCR 8768(September 20, 2002)[EXPIRED]; Final Rulemaking published at 49 DCR 11245 (December 13, 2002).