Section R. 330.6013 - Informed consent boardRule 6013.
( 1) Upon review, a facility or program director shall determine whether a staff member's written conclusion that a person is not capable of giving or refusing to give an informed consent is of substantial weight. A facility or program director shall, when possible, authorize staff to act upon an application, consent, or refusal of a person of the age of 18 or over who is presumed to be legally competent. If a facility or program director determines that a staff member's written conclusion that a person is not capable of giving or refusing to give an informed consent is of substantial weight, he or she shall convene an informed consent board.( 2) An informed consent board may either be a standing interdisciplinary body drawn from an existing interdisciplinary review board within a facility or program or may be appointed on a case-by-case basis. An informed consent board shall consist of the following:(a) Two mental health professionals of different disciplines with appropriate clinical experience or training.(b) A third person who is not employed by the facility or program but who is selected by the facility or program director from qualified volunteers with an interest in mental health or developmental and/or intellectual disability advocacy and services.( 3) One board member shall have had prior clinical contact with the person whose ability to give informed consent is at issue, but a board member shall not have been involved in either the action or application for which consent is needed or the decision to evaluate the need for guardianship proceedings.( 4) A board shall evaluate the capacity of a person to give or refuse to give the required informed consent by interviewing the person and other appropriate persons and by evaluating available clinical records and test results. A board shall submit a written report which states the boards findings of fact, the persons desires in the matter, when possible, a conclusion whether the consent or refusal is or will be informed, and the board's recommendation.( 5) Informed consent assumes all of the following: (a) That a person has the capacity to make a decision and to understand rationally the nature of the procedure, its risks or other consequences, and other relevant information despite deprivations stemming from confinement and despite the negative effects of institutionalization.(b) That a person has been made aware of the procedure, risks, or other direct ramifications, including benefits, reasonably to be expected and of an appropriate alternative which is advantageous to the person. There shall be an offer to answer further inquiries of the person.(c) That a decision is or will be an exercise of free power of choice without intervention of any element of force, fraud, deceit, duress, overreaching, or other ulterior form of constraint or coercion, including promises or assurances of freedom or privileges. The person shall be instructed that he or she is free to withdraw consent or to discontinue an ongoing activity or participation at any time without prejudice.( 6) A board shall recommend those mental, physical, social, or educational evaluations which it deems necessary to further ascertain the capacity of a person to give informed consent or the need of a minor who is approaching the age of 18 for protective services of a guardian, to determine if guardianship will promote and protect the well-being of the person, or to arrive at a suitable guardianship design.( 7) If a majority of an informed consent board concludes that a person does not have the capacity to make a decision or to rationally understand a situation, as required for an informed consent, and if the board concludes that guardianship can promote and protect the well-being of the person and recommends a guardianship request designed to encourage the development of maximum self-reliance and independence in the individual, then a director of the facility or program shall cause a proceeding for guardianship to be commenced in the probate court. Steps taken to cause a proceeding shall be in accordance with R 330.7003 and this rule on a facility's or program's role in guardianship proceedings.( 8) If a majority of an informed consent board concludes that informed consent is absent either because a person has not been made sufficiently aware of the procedures, risks, other ramifications, benefits, or alternatives or because a decision is not voluntary, as required for an informed consent, the director shall cause the individual to be provided necessary information or, when possible, an opportunity for voluntary choice.( 9) If a majority of an informed consent board concludes that a person can give or has given an informed consent or has the capacity to give an informed consent and has refused to consent, the facility or the program director shall authorize the staff to act accordingly.( 10) A parent or a responsible relative, a previously appointed current partial guardian, or other interested person or entity shall be notified by the informed consent board of a determination that a person cannot give an informed consent. More than 1 person or entity may be notified.( 11) A copy of an informed consent board's report shall be placed in the person's case record.Mich. Admin. Code R. 330.6013
1979 AC; 1981 AACS; 2018 MR 16, Eff. 9/6/2018