N.Y. Comp. Codes R. & Regs. tit. 14 § 527.8

Current through Register Vol. 46, No. 15, April 10, 2024

Section 527.8 - Care and treatment; right to object

(a) Definitions.

(1) Best interests means, with respect to any proposed treatment, that it will promote the well-being of a patient, taking into account the benefits, including improvement in the quality of the patient's life, risks and alternatives to the treatment.

(2) Capacity means the patient's ability to factually and rationally understand and appreciate the nature and consequences of proposed treatment, including the benefits, risks and alternatives to the proposed treatment, and to thereby make a reasoned decision about undergoing the proposed treatment.

(3) Clinical director means the individual in charge of clinical services at the hospital or a secure treatment facility operated by the Office of Mental Health as defined in section 10.03 of the Mental Hygiene Law, where the patient is receiving care and treatment, or a physician designated by that individual to carry out the responsibilities of the clinical director described in this section.

(4) Dangerous means that a patient engages in conduct or is imminently likely to engage in conduct posing a risk of physical harm to himself or others.

(5) Minor means a patient who is under the age of 18 and is not married or the parent of a child, and is not on voluntary status on his or her own application. A patient under the age of 18 who does not meet the above criteria shall, for the purposes of this section, be considered an adult.

(6) Patients on involuntary status for the purposes of this section includes patients retained on an involuntary basis pursuant to article 9 of the Mental Hygiene Law, patients retained pursuant to the Criminal Procedure Law, Family Court Act or Correction Law, patients on voluntary status for whom application to a court for involuntary retention has been made, minors, other than those admitted on their own application, for whom consent of a parent or guardian cannot be obtained, and persons confined or committed to a secure treatment facility operated by the Office of Mental Health as defined in section 10.03 of the Mental Hygiene Law.

(7) Treatment for purposes of this section means diagnostic procedures or therapeutic actions on behalf of a patient, including administration of psychotropic medications, extraction of bodily fluids for analysis (excluding routine blood work), dental care performed with a local anesthetic, biopsies, CAT/PET scans, or similar medical or dental procedures. For purposes of this section, such term also includes electroconvulsive therapy. Such term does not include, and this section does not apply to, routine medical procedures such as physical examinations, routine blood work, X-rays and nonpsychotropic medication. It also does not include, and does not apply to, procedures for which informed consent is required under section 27.9 of this Title, except electroconvulsive therapy, or under other provisions of law.

(8) Inmate patient means a person committed to the custody of the Department of Corrections and Community Supervision who is an outpatient of Central New York Psychiatric Center at the regional medical units operated by the Department of Corrections and Community Supervision at which the Office of Mental Health provides outpatient psychiatric treatment, and at correctional facilities operated by the Department of Corrections and Community Supervision at which the Office of Mental Health operates a residential crisis treatment program.

(b) Except as provided in this subdivision, facilities shall ensure that each patient is afforded an explanation of any proposed medical procedure or course of treatment. Such explanation shall include a discussion of the expected benefits, reasonably foreseeable risks, and any reasonable alternatives to the proposed procedure or treatment.

(1) A facility may withhold all or part of the explanation from any patient if the risk of treatment is minimal and too commonly known to warrant disclosure, or if in the judgment of the treating physician, providing such explanation would be likely to have an identifiable and substantial adverse effect upon the patient's condition. In any such case, the facility shall ensure that this determination is fully documented and that the patient is reevaluated monthly and provided appropriate explanation whenever the treating physician determines that an explanation would no longer be likely to have an identifiable and substantial adverse effect upon the patient's condition.

(2) A facility may withhold all or part of the explanation from any patient under the age 18, other than a patient admitted on his own application, who is not married or the parent of a child. In determining whether to withhold all or any part of the explanation, the facility shall consider the patient's age and maturity.

(c) Patients who object to any proposed medical treatment or procedure as defined above may not be treated over their objection except as follows:

(1) Emergency treatment. Facilities may give treatment, except electroconvulsive therapy, to any inpatient, regardless of admission status or objection, where the patient is presently dangerous and the proposed treatment is the most appropriate reasonably available means of reducing that dangerousness. Such treatment may continue only as long as necessary to prevent dangerous behavior.

(2) Minors.

(i) Except as provided in subparagraph (ii) of this paragraph, a patient who is a minor may be provided treatment over his or her objection if the patient's parent, legal guardian or other legally authorized representative has consented to the treatment, and the treatment is not one for which the consent of a minor would be legally sufficient.

(ii) If an individual, who is a minor and is a patient in a State-operated psychiatric center, objects to psychotropic medication to which his or her parent, legal guardian or other legally authorized representative has consented, such medication shall not be administered pending the completion of the following process, which shall be fully documented:

(a) Upon the patient's objection to the proposed treatment, an independent review shall be conducted by a physician who specializes in psychiatry and is not an employee of the facility. Such independent reviewer, designated by the clinical director, shall review the patient's clinical record, meet with the patient, and provide a recommendation to the clinical director based on an assessment of:

(1) the need for the proposed treatment in light of the patient' s current condition, the goals for the treatment, the patient's treatment history, any alternatives to the treatment and the therapeutic implications of treating the patient over his or her objection; and

(2) the patient's reasons for objecting to the proposed treatment, his or her ability to understand the factors described in subclause (1) of this clause, and the treatment staff's responses to the patient's objection.

(b) Following the completion of the independent review, the clinical director shall also conduct a review as described in clause (a) of this subparagraph. Based on the clinical director's review and the independent reviewer's recommendation, the clinical director shall determine that the treatment:

(1) be administered over the patient's objection; or

(2) be administered after the delay of a specified period of time to permit efforts to obtain the patient's agreement; or

(3) not be administered as not in the patient's best interests.

(c) The clinical director shall provide the patient and his or her parent, legal guardian or other legally authorized representative with a full explanation of the clinical director's determination. If the determination is made to administer non-emergency treatment over the patient's objection, the Mental Hygiene Legal Service shall be notified and the initiation of the treatment shall be delayed at least four calendar days thereafter. If, within the four-day period, the Mental Hygiene Legal Service files a legal action on behalf of the patient challenging the clinical director's determination as "arbitrary and capricious", the treatment may be initiated three calendar days thereafter, unless otherwise ordered by the court.

(3) Patients on voluntary or informal status. Except as provided in paragraphs (1) and (2) of this subdivision, patients who are on a voluntary or informal status, other than those for whom application to a court for involuntary retention has been made, may not be given treatment over their objection. When any such patient objects to all recommended forms of treatment, the facility director may, after notifying the patient, discharge the patient in accordance with a written service plan or, if appropriate, convert the patient to involuntary status. When a patient is discharged because of objection to all recommended forms of treatment, the director shall take appropriate steps to notify the patient' s family.

(4) Patients on involuntary status.

(i) Except in emergency circumstances as provided in paragraph (1) of this subdivision, or in cases involving minors in which consent for treatment is obtained in accordance with paragraph (2) of this subdivision, and except for cases involving major medical treatment, which are governed by section 27.9 of this Title, patients on involuntary status may not be given a medical procedure or course of treatment over their objection without court authorization.

(ii) Prior to requesting court authorization to treat an objecting patient on involuntary status, the clinical director of a facility or his or her designee must determine that treatment is in the patient's best interests and that the patient lacks capacity to make a reasoned decision concerning treatment. In making such determination, the facility shall ensure compliance with the procedures described below. In the interest of speedy resolution of conflicts regarding treatment, each of the evaluations of a patient described below should be completed within 24 hours.

(a) Evaluation by treating physician. Upon a patient's objection to the proposed treatment, the treating physician shall formally evaluate whether the treatment is in the patient's best interests, in light of all relevant circumstances including the risks, benefits and alternatives to the patient of the treatment, and the nature of the patient's objection thereto, and whether the patient has the capacity to make a reasoned decision concerning the treatment. If the physician finds that treatment is in the patient's best interests and the patient lacks capacity to make a reasoned decision concerning treatment, he shall personally inform the patient of his determination. If the patient continues to object to the proposed treatment, the physician shall forward his evaluation and findings to the clinical director with a request for further review. He shall also notify in writing the patient, MHLS, and any other representative of the patient of his determination and request, if any, for further review.

(b) Review by the clinical director or his designee.

(1) Upon receipt of the treating physician's request for further review, the clinical director shall appoint a physician to evaluate whether the proposed treatment is in the patient's best interests, and whether the patient has the capacity to make a reasoned decision concerning treatment. The reviewing physician may be any physician of suitable expertise relative to the proposed treatment and may be an employee of the facility, including the clinical director, or independent of the facility. In performing his evaluation, such physician shall review the patient's record and personally examine the patient. If the reviewing physician's determination is that treatment over objection is appropriate, he shall personally inform the patient of his determination.

(2) If there is a substantial discrepancy between the opinions of the treating physician and reviewing physician regarding the patient's capacity or whether treatment is in the patient's best interests, the clinical director may, at his option, appoint a third physician to conduct an evaluation pursuant to this subparagraph.

(3) If, after completion of the evaluation by the reviewing physician (or physicians), the patient continues to object to the proposed treatment, the clinical director shall make a determination on behalf of the facility whether the patient has capacity to make a reasoned decision concerning treatment and whether treatment is in the patient's best interests. If the clinical director finds that the patient has capacity to make a reasoned decision concerning treatment or that treatment would not be in the patient's best interests, he shall uphold the patient's objections and so notify the patient, MHLS, and any other patient representative. If the clinical director's determination is that the patient lacks capacity, and treatment over objection is in the patient's best interests, he may apply for court authorization of treatment, and so notify the patient, MHLS, and any other representative of the patient.

(5) Inmate patients.

(i) Except in emergency circumstances as provided in paragraph (1) of this subdivision, an inmate patient may not be given a psychotropic medication over his or her objection without court authorization.

(ii) Prior to requesting court authorization to administer psychotropic medication to an objecting inmate patient, the clinical director, or his or her designee, of Central New York Psychiatric Center, must determine that the administration of psychotropic medication is in the inmate patient's best interests and that the inmate patient lacks capacity to make a reasoned decision concerning administration of such medication. In making such determination, the clinical director, or his or her designee, shall ensure compliance with the procedures described below. In the interest of prompt resolution of conflicts regarding administration of psychotropic medication over objection, each of the evaluations of an inmate patient described below should be completed within 24 hours.

(a) Evaluation by treating physician. Upon an inmate patient's objection to the proposed administration of psychotropic medication, the treating physician shall formally evaluate whether the administration of psychotropic medication is in the inmate patient's best interests, in light of all relevant circumstances including the risks, benefits and alternatives to the inmate patient of the administration of psychotropic medication, and the nature of the inmate patient's objection thereto, and whether the inmate patient has the capacity to make a reasoned decision concerning the administration of such medication. If the physician finds that administration of psychotropic medication is in the inmate patient's best interests and the inmate patient lacks capacity to make a reasoned decision concerning administration of such medication, he or she shall personally inform the inmate patient of his or her determination. If the inmate patient continues to object to the proposed psychotropic medication, the physician shall forward his or her evaluation and findings to the clinical director with a request for further review. He or she shall also notify in writing the inmate patient, Mental Hygiene Legal Service, and any other representative of the inmate patient of his or her determination and request, if any, for further review.

(b) Review by the clinical director or his or her designee.

(1) Upon receipt of the treating physician's request for further review, the clinical director shall appoint a physician to evaluate whether the proposed administration of psychotropic medication is in the inmate patient's best interests, and whether the inmate patient has the capacity to make a reasoned decision concerning treatment. The reviewing physician may be any physician of suitable expertise relative to the proposed administration of psychotropic medication and may be an employee of the facility, including the clinical director, or independent of the facility. In performing his or her evaluation, such physician shall review the inmate patient's record and personally examine the inmate patient. If the reviewing physician's determination is administration of psychotropic medication over objection is appropriate, he or she shall personally inform the inmate patient of his determination.

(2) If there is a substantial discrepancy between the opinions of the treating physician and reviewing physician regarding the inmate patient's capacity or whether administration of psychotropic medication is in the inmate patient's best interests, the clinical director may, at his or her option, appoint a third physician to conduct an evaluation pursuant to this subparagraph.

(3) If, after completion of the evaluation by the reviewing physician (or physicians), the inmate patient continues to object to the proposed administration of psychotropic medication, the clinical director shall make a determination on behalf of the facility whether the inmate patient has capacity to make a reasoned decision concerning the administration of psychotropic medication and whether such medication is in the inmate patient's best interests. If the clinical director finds that the inmate patient has capacity to make a reasoned decision concerning the administration of psychotropic medication or that such medication would not be in the inmate patient's best interests, he or she shall uphold the inmate patient's objections and so notify the inmate patient, Mental Hygiene Legal Service, and any other representative of the inmate patient. If the clinical director's determination is that the inmate patient lacks capacity, and psychotropic medication over objection is in the inmate patient's best interests, he or she may apply for court authorization of administration of psychotropic medication, and so notify the inmate patient, Mental Hygiene Legal Service, and any other representative of the inmate patient.

(6) Nothing in this subdivision shall prevent a treating physician, treatment team, or others involved in the patient's or inmate patient's care from continuing to explain the proposed treatment to the patient as described in subdivision (a) of this section and to seek his or her voluntary agreement thereto. Further, the facility shall ensure that any such efforts are made in a clinically appropriate manner. A patient or inmate patient may at any time withdraw his or her objection to the proposed treatment, and the treating physician may at any time substitute another professionally acceptable course of treatment to which the patient or inmate patient does not object. Upon the withdrawal of the patient's or inmate patient's objection or his or her agreement to a substituted course of treatment, the physician shall immediately notify by telephone Mental Hygiene Legal Service and the patient's or inmate patient's attorney, if any. Unless the patient or inmate patient, Mental Hygiene Legal Service or the patient's or inmate patient's attorney renews the objection, treatment may be commenced 24 hours after notice has been provided. If the Mental Hygiene Legal Service or the patient's or inmate patient's attorney agrees, treatment may be commenced immediately. Notwithstanding a patient's or inmate patient's withdrawal of his or her objection to a proposed treatment, nothing in this paragraph shall diminish or supersede the need for obtaining informed consent for the proposed treatment when so required under section 27.9 of this Title or under other provisions of law.

(d) Notwithstanding the provisions of this Section, no facility shall provide services to minor patients that are intended to change such minor's sexual orientation or gender identity, including efforts to change behaviors, gender expressions, or to eliminate or reduce sexual or romantic attractions or feelings towards individuals of the same sex, provided, however, that this does not include counseling or therapy for a minor who is seeking to undergo a gender transition or who is in the process of undergoing a gender transition, that provides acceptance, support, and understanding of minors or the facilitation of minors' coping, social support, and identity exploration and development, including sexual orientation-neutral interventions to prevent or address unlawful conduct or unsafe sexual practices, provided that the counseling or therapy does not seek to change sexual orientation or gender identity.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 527.8

Amended New York State Register April 27, 2016/Volume XXXVIII, Issue 17, eff.4/27/2016