Or. Admin. R. 309-033-0640

Current through Register Vol. 63, No. 6, June 1, 2024

Section 309-033-0640 - Involuntary Administration of Significant Procedures to a Person under Civil Commitment with Good Cause

(1) Hospitals or nonhospital facilities authorized. Only the following facilities that serve persons under civil commitment shall involuntarily administer significant procedures with good cause under the provisions of 309-033-0640:

(a) A hospital or nonhospital facility approved under OAR 309-033-0700 through 309-033-0740;

(b) A hospital or nonhospital facility approved under OAR 309-033-0530;

(c) Secure residential facilities licensed by the Division or licensed by Aging and People with Disabilities (APD).

(d) Intermediate care facilities or enhanced care facilities licensed by APD which have a variance from APD to provide involuntary medication.

(2) Good cause. Good cause exists to administer a significant procedure to a person under civil commitment without said person's informed consent if, in the opinion of the treating Licensed Independent Practitioner (LIP), after consultation with the treatment team:

(a) The person is deemed unable pursuant to OAR 309-033-0620 to consent to, refuse, withhold or withdraw consent to the significant procedure;

(b) The proposed significant procedure will likely restore, or prevent deterioration of, the person's mental or physical health, alleviate extreme suffering, or save or extend the person's life;

(c) The proposed significant procedure is the most appropriate treatment for the person's condition according to current clinical practice, and all other less intrusive procedures have been considered and all criteria and information set forth in OAR 309-033-0620 are considered;

(d) The treating LIP has made a conscientious effort to obtain informed consent to the significant procedure from the person under civil commitment.

(3) Independent review. Prior to granting approval for the administration of a significant procedure for good cause to a person under civil commitment, the administrator shall obtain consultation and approval from an independent examining LIP.

(a) The administrator shall maintain a list of independent examining LIPs and shall seek consultation and approval from independent examining LIPs selected on a rotating basis from the list. The independent examining LIP shall:

(A) Be a psychiatrist;

(B) Not be in a position to provide primary or on-call care or treatment to the person who is subject of the independent review;

(C) Not be an employee of the facility;

(D) Have been subjected to review by medical staff executive committee as to qualifications to make such an examination; and

(E) Have read and received training from the medical staff regarding the meaning and the application of these rules.

(b) Prior to seeking consultation and approval of an examining LIP, the administrator shall provide written notice to the person under civil commitment who is subject to the proposed significant procedure without the person's consent.

(4) Independent LIP activities. The LIP selected to conduct the independent consultation shall:

(a) Review the person's clinical record, including the records of efforts made to obtain the person's informed consent;

(b) Personally examine the person;

(c) Interview the person 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;

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

(e) Make a determination whether the factors required under these rules exist for the particular person or that one or more factors are not present. If the LIP determines that the person does not have capacity to give consent to treatment, the LIP shall review the proposed significant procedure. The LIP shall make his/her determination of capacity, approval or disapproval of the proposed significant procedure to:

(A) The administrator; and

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

(5) Administrator determination. The administrator shall approve or disapprove of the administration of the significant procedure to a person under civil commitment based on good cause, provided:

(a) The administrator shall not approve the significant procedure and it shall not be performed when the independent examining LIP found that one or more of the factors required by OAR 309-033-0640 were not present or otherwise disapproved of the procedure;

(b) Approval of the significant procedure shall terminate if there is a substantial increase in risk, as determined by a LIP, of administering the significant procedure or at any time the person regains capacity to give informed consent/refusal. Approval of the significant procedure shall terminate at the end of the person's civil commitment but in no case longer than 180 days. Disapproval shall be only so long as no substantial change occurs in the person's condition;

(c) Written notice of the administrator's determination shall be provided to the person and made part of the person under civil commitment's clinical records;

(d) A copy of the independent examining LIP's report shall be made part of the person under civil commitment's clinical record.

(6) Ninety-day right to review. The administrator shall adopt procedures which assure that the person under civil commitment may request independent review of the approval once every ninety days after the initial approval. Within 14 days of a verbal or written request from the person under civil commitment, the administrator shall initiate an independent review of the approval, as in OAR 309-033-0640.

(7) Transfer of approval. The administrator, or the superintendent of a State hospital, shall transfer the approval of the administration of a significant procedure when a person under civil commitment is transferred to another hospital or nonhospital facility described in OAR 309-033-0640.

(a) The administrator, or the superintendent, of the sending hospital or nonhospital facility shall transfer the approval by sending copies of all approval documents to the administrator of the receiving facility.

(b) The administrator, or the superintendent, of the receiving hospital or nonhospital facility shall assure that the treating physician at that facility reexamines the person under civil commitment and verifies that the need for the approval continues to exist as described in OAR 309-033-0620and 309-033-0640. The receiving hospital or nonhospital facility may administer the significant procedure if the need for the procedure continues in accordance with OAR 309-033-0640.

(c) In no event shall the approval of a significant procedure continue beyond 180 days from the date of the original approval without reestablishing the need for the approval by following the procedures prescribed in OAR 309-033-0640.

(8) Administrative procedures.

(a) Utilization summary. Every four months the administrator shall make a summary of the use of OAR 309-033-0630 and 309-033-0640 that includes:

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

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

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

(D) The number of times the approved and disapproved each type of proposed significant procedure.

(b) Outside reviewer's access to summaries. The administrator shall provide a copy of a utilization summary to the federally-mandated advocacy and protection agency for Oregon, which is appointed by the Governor and which currently is the Oregon Advocacy Center, and the Division. The Division may only distribute the report to any other person or organization authorized by the Division which in the opinion of the Authority:

(A) Has substantial interest in the advocacy and protection of the rights of persons with mental illness; and

(B) Whose access to the summaries will provide a substantial and material benefit to the citizens of Oregon.

Or. Admin. R. 309-033-0640

MHD 9-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-215-0050; BHS 9-2023, amend filed 04/04/2023, effective 4/7/2023

Statutory/Other Authority: ORS 413.042 & 426.385

Statutes/Other Implemented: ORS 426.005 - 426.395