N.Y. Comp. Codes R. & Regs. tit. 14 § 27.9

Current through Register Vol. 46, No. 45, November 2, 2024

Section 27.9 - Surgery and certain other treatments

Electro-convulsive therapy, surgery, major medical treatment or the use of experimental drugs or procedures may be administered to any patient only upon the informed consent of the patient or of a person authorized to act on his or her behalf after a full and comprehensive disclosure of potential benefits and the potential of harm. Aversive or noxious stimuli shall not be included as part of any patient's individual service plan unless all conditions for obtaining consent as otherwise set forth in this section are met. Before such stimuli may be included in any service plan, such procedures shall be evaluated by a suitable committee responsible for reviewing and approving the efficacy and humaneness of this element of the patient's service plan. Patients are presumed to have sufficient mental capacity to give consent unless there are facts and substantial reasons to the contrary. The following conditions shall apply:

(a) If a patient is under 18 years of age, consent shall be obtained from the parents or legal guardian. If no parent or legal guardian is available or if such a patient having mental capacity to understand the procedure objects or one of the parents objects to the proposed procedure, the director may not initiate the procedure without a court order authorizing it, except in the case where surgery is indicated by significant danger to life or limb of the patient if the procedure is delayed.

(b) If a patient is 18 years or older but in the opinion of the chief of the service does not have sufficient mental capacity to give consent, authorization for the procedure in question must be obtained from the spouse, a parent, an adult child, or a court of competent jurisdiction. Nothing in this section shall prevent the director from giving consent to surgical procedure under emergency conditions where there appears to be significant danger to life or limb of the patient if the procedure is delayed.

(c) If a patient is 18 years or older and has sufficient mental capacity to give consent, the procedures may be initiated only with the patient's consent. The patient shall have the right, upon his or her request, to have a person of her or his choice present when consent is sought. In cases where a patient withholds consent to a procedure necessary for protection of life or limb, the director shall notify the Mental Health Information Service and may apply for court authorization.

(d) If it is not clear that the patient has sufficient mental capacity to give consent, an independent opinion about the patient's mental capacity must be obtained from a qualified consultant who is not an employee of the facility. After considering the opinion of the consultant, the director will decide whether the patient does or does not have the capacity to give consent and the director may then proceed in accordance with the other provisions of this section. The director shall enter in the patient's clinical record the reasons for this decision.

(e) Each facility director shall develop standard procedures to evaluate the decisions made on the mental capacity of individual patients to give consent. A qualified consultant who is not an employee of the facility shall be a member of the review process.

(f) All patients who object shall have recourse to the procedures for objection and appeal stipulated in section 27.8 of this Part.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 27.9

Amended, New York State Register, Volume XXXVI, Issue 22, effective 6/4/2014