Section 0940-04-04-.08 - DUTIES OF A SERVICE PROVIDER(1) Follow the decision of an individual who has the authority or capacity to make an informed decision.(2) If there is no individual who has the authority or capacity to make an informed decision, and a service provider has reasonable cause to believe that a service recipient lacks capacity to make an informed decision, the service provider must: (a) determine if there is a declaration for mental health treatment which addresses the routine treatment recommended and follow the declaration, or(b) arrange for a qualified examiner to assess capacity under Rule 0940-1-6 -. 03(5)(b) or if the service provider is a qualified examiner, perform the assessment.1. If the qualified examiner determines that the individual lacks capacity and needs a surrogate decision-maker, the service provider must:(i) Select a surrogate decision-maker in conformity with 0940-4-04-.05, document the identity of the surrogate decision-maker and obtain consent from the surrogate decision-maker.(3) Arrange for reassessment of the individual's capacity to make informed decisions when the individual or the service provider, conservator, guardian, court-appointed custodian, or attorney-in-fact under a DPOA believes the individual has capacity. Only a qualified examiner may perform a capacity reassessment.(4) Inform the surrogate decision-maker of: (a) The nature of the proposed treatment or procedure and any immediate need;(b) The possible risks, including side effects and potential benefits of the proposed treatment, procedure or course of action;(c) The alternative treatments or courses of action and their attendant risks and potential benefits;(d) The right to additional information; and(e) The right to give or withdraw consent.(5) Document a surrogate decision-maker's decision in the service provider's file.(6) If a surrogate decision-maker withdraws from decision-making, document the decision and the justification in the service provider's file.(7) When a surrogate decision-maker withdraws, identify a new surrogate decision-maker if further routine treatment or course of treatment is needed.(8) When there is no person willing or qualified to serve in the capacity of surrogate decision- maker, the service provider shall document his/her efforts to obtain a surrogate decision- maker. The service provider shall inform the individual that the required service cannot be provided without the consent of a surrogate decision-maker, conservator, guardian, court-appointed custodian, attorney-in-fact under a DPOA or a declaration for mental health treatment.(9) Act in reliance on the surrogate decision-maker's decision.(10) If there is a disagreement about the right of a person to act as a surrogate decision-maker, notify the parties that the service may be provided when the disagreement has been resolved.Tenn. Comp. R. & Regs. 0940-04-04-.08
Original rule filed March 29, 2005; effective June 12, 2005.Authority: T.C.A. §§ 4-4-103, 33-1-302, 33-1-305, and 33-3-219 through 33-3-221.