Current through Reg. 50, No. 187; September 24, 2024
(1) Establishment of Consent.
(a) Receiving Facilities. As soon as
possible, but in no event longer than 24 hours from entering a designated
receiving facility on a voluntary or involuntary basis, each person shall be
examined by the admitting physician to assess the person's ability to provide
express and informed consent to admission and treatment. The examination of a
minor for this purpose may be limited to the documentation of the minor's age.
The examination of a person alleged to be incapacitated for this purpose may be
limited to the documentation of letters of guardianship. Documentation of the
assessment results shall be placed in the person's clinical record. The
facility shall determine whether a person has been adjudicated as incapacitated
and whether a guardian has been appointed by the court. If a guardian has been
appointed by the court, the limits of the authority of the guardian shall be
determined prior to allowing the guardian to authorize treatment. A copy of any
court order delineating a guardian's authority to consent to mental health or
medical treatment shall be obtained by the facility and included in the
person's clinical record prior to allowing the guardian to give express and
informed consent to treatment for the person.
(b) Treatment Facilities. Upon entering a
designated treatment facility on a voluntary or involuntary basis, each person
shall be examined by the admitting physician to assess the person's ability to
provide express and informed consent to admission and treatment, which shall be
documented in the person's clinical record. The examination of a person alleged
to be incapacitated or incompetent to consent to treatment, for this purpose,
may be limited to documenting the letters of guardianship or order of the
court. If a person has been adjudicated as incapacitated and a guardian
appointed by the court or if a person has been found to be incompetent to
consent to treatment and a guardian advocate has been appointed by the court,
the limits of authority of the guardian or guardian advocate shall be
determined prior to allowing the guardian or guardian advocate to authorize
treatment for the person. A copy of any court order delineating a guardian's
authority to consent to mental health or medical treatment shall be obtained by
the facility and included in the person's clinical record prior to allowing the
guardian to give express and informed consent to treatment for the
person.
(c) If the admission is
voluntary, the person's competence to provide express and informed consent for
admission shall be documented by the admitting physician. Recommended form
CF-MH 3104, Feb. 05, "Certification of Person's Competence to Provide Express
and Informed Consent, " which is incorporated by reference and may be obtained
pursuant to Rule 65E-5.120, F.A.C., of this rule
chapter may be used for this purpose. The completed form or other documentation
shall be retained in the person's clinical record. Facility staff monitoring
the person's condition shall document any observations which suggest that a
person may no longer be competent to provide express and informed consent to
his or her treatment. In such circumstances, staff shall notify the physician
and document in the person's clinical record that the physician was notified of
this apparent change in clinical condition.
(d) In the event there is a change in the
ability of a person on voluntary status to provide express and informed consent
to treatment, the change shall be immediately documented in the person's
clinical record. A person's refusal to consent to treatment is not, in itself,
an indication of incompetence to consent to treatment.
1. If the person is assessed to be competent
to consent to treatment and meets the criteria for involuntary inpatient
placement, the facility administrator shall file with the court a petition for
involuntary placement. Recommended form CF-MH 3032, Feb. 05, "Petition for
Involuntary Inpatient Placement, " which is incorporated by reference and may
be obtained pursuant to Rule
65E-5.120, F.A.C., of this rule
chapter may be used for this purpose.
2. If the person is assessed to be
incompetent to consent to treatment, and meets the criteria for involuntary
inpatient or involuntary outpatient placement, the facility administrator shall
expeditiously file with the court both a petition for the adjudication of
incompetence to consent to treatment and appointment of a guardian advocate,
and a petition for involuntary inpatient or involuntary outpatient placement.
Upon determination that a person is incompetent to consent to treatment the
facility shall expeditiously pursue the appointment of a duly authorized
substitute decision-maker that can make legally required decisions concerning
treatment options or refusal of treatments for the person. Recommended forms
CF-MH 3106, Feb. 05, "Petition for Adjudication of Incompetence to Consent to
Treatment and Appointment of a Guardian Advocate, " which is incorporated by
reference may be obtained pursuant to Rule
65E-5.120, F.A.C., of this rule
chapter, and CF-MH 3032, "Petition for Involuntary Inpatient Placement, " as
referenced in subparagraph
65E-5.170(1)(d)
1., F.A.C., or CF-MH 3130, "Petition for Involuntary Outpatient Placement, "
which is incorporated by reference and may be obtained pursuant to Rule
65E-5.120, F.A.C., of this rule
chapter may be used for this purpose.
(e) Competence to provide express and
informed consent shall be established and documented in the person's clinical
record prior to the approval of a person's transfer from involuntary to
voluntary status or prior to permitting a person to consent to his or her own
treatment if that person had been previously determined to be incompetent to
consent to treatment. Recommended form CF-MH 3104, "Certification of Person's
Competence to Provide Express and Informed Consent, " as referenced in
paragraph 65E-5.170(1)(c),
F.A.C., properly completed by a physician may be used for this
purpose.
(f) Any guardian advocate
appointed by a court to provide express and informed consent to treatment for
the person shall be discharged and a notice of such guardian advocate discharge
provided to the court upon the establishment and documentation that the person
is competent to provide express and informed consent.
(g) If a person entering a designated
receiving or treatment facility has been adjudicated incapacitated under
Chapter 744, F.S., as described in Section
394.455(14),
F.S., express and informed consent to treatment shall be sought from the
person's guardian.
(h) If a person
entering a designated receiving or treatment facility has been determined by
the attending physician to be incompetent to consent to treatment as defined in
Section 394.455(15),
F.S., express and informed consent to treatment shall be expeditiously sought
by the facility from the person's guardian advocate or health care surrogate or
proxy.
(i) A copy of the letter of
guardianship, court order, or advance directive shall be reviewed by facility
staff to ensure that the substitute decision-maker has the authority to provide
consent to the recommended treatment on behalf of the person. If the facility
relies upon the expression of express and informed consent for person's
treatment from a substitute decision-maker, a copy of this documentation shall
be placed in the person's clinical record and shall serve as documentation of
the substitute decision-maker's authority to give such consent. With respect to
a health care proxy, where no advance directive has been prepared by the
person, facility staff shall document in the person's clinical record that the
substituted decision-maker was selected in accordance with the list of persons
and using the priority set out in Section
765.401, F.S. When a health care
surrogate or proxy is used, the facility shall immediately file a petition for
the appointment of a guardian advocate.
(2) Authorization for Treatment.
(a) Express and informed consent, including
the right to ask questions about the proposed treatment, to receive complete
and accurate answers to those questions, and to negotiate treatment options,
shall be obtained from a person who is competent to consent to treatment. If
the person is incompetent to consent to treatment, such express and informed
consent shall be obtained from the duly authorized substitute decision-maker
for the person before any treatment is rendered, except where emergency
treatment is ordered by a physician for the safety of the person or others.
Chapter 394, Part I, F.S., and this rule chapter govern mental health
treatment. Medical treatment for persons served in receiving and treatment
facilities and by other service providers are governed by other statutes and
rules.
(b) A copy of information
disclosed while attempting to obtain express and informed consent shall be
given to the person and to any substitute decision-maker authorized to act on
behalf of the person.
(c) When
presented with an event or an alternative which requires express and informed
consent, a competent person or, if the person is incompetent to consent to
treatment, the duly authorized substitute decision-maker shall provide consent
to treatment, refuse consent to treatment, negotiate treatment alternatives, or
revoke consent to treatment. Recommended forms CF-MH 3042a, Feb. 05, "General
Authorization for Treatment Except Psychotropic Medications, " which is
incorporated by reference and may be obtained pursuant to Rule
65E-5.120, F.A.C., of this rule
chapter, and CF-MH 3042b, Feb. 05, "Specific Authorization for Psychotropic
Medications, " which is incorporated by reference and may be obtained pursuant
to Rule 65E-5.120, F.A.C., of this rule
chapter may be used as documentation of express and informed consent and any
decisions made pursuant to that consent. If used, recommended form CF-MH 3042a,
"General Authorization for Treatment Except Psychotropic Medications, " as
referenced in paragraph
65E-5.170(2)(c),
F.A.C., shall be completed at the time of admission to permit routine medical
care, psychiatric assessment, and other assessment and treatment except
psychotropic medications. The more specific recommended form CF-MH 3042b,
"Specific Authorization for Psychotropic Medications, " as referenced in
paragraph 65E-5.170(2)(c),
F.A.C., or its equivalent, shall be completed prior to the administration of
any psychotropic medications, except under an emergency treatment order. The
completed forms, or equivalent documentation, shall be retained in the person's
clinical record.
(d) No facility or
service provider shall initiate any mental health treatment, including
psychotropic medication, until express and informed consent for psychiatric
treatment is sought from a person legally qualified to give it, except in
instances where emergency treatment is ordered by a physician to preserve the
immediate safety of the person or others.
(3) Receiving and treatment facilities shall
request copies of any advance directives completed by persons admitted to the
facilities, from the person or the person's family or representative.
(4) In addition to any other requirements, at
least the following must be given to the person before express and informed
consent will be valid:
(a) Identification of
the proposed psychotropic medication, together with a plain language
explanation of the proposed dosage range, the frequency and method of
administration, the recognized short-term and long-term side effects, any
contraindications which may exist, clinically significant interactive effects
with other medications, and similar information on alternative medications
which may have less severe or serious side effects.
(b) A plain language explanation of all other
treatments or treatment alternatives recommended for the
person.
(5) If a change
in psychotropic medication is recommended which is not included in the
previously signed CF-MH 3042b, "Specific Authorization for Psychotropic
Medications" form, as referenced in paragraph
65E-5.170(2)(c),
F.A.C., after an explanation and disclosure of the altered treatment plan is
provided by the physician express and informed consent must be obtained from
the person authorized to provide consent and be documented in the person's
clinical record prior to the administration of the treatment or psychotropic
medication.
(6) The facility or
service provider staff shall explain to a guardian, guardian advocate, or
health care surrogate or proxy, the duty of the substitute decision-maker to
provide information to the facility or service provider on how the substitute
decision-maker may be reached at any time during the person's hospitalization
or treatment to provide express and informed consent for changes of treatment
from that previously approved.
(7)
Electroconvulsive treatment may be recommended to the person or the person's
substitute decision-maker by the attending physician. Such recommendation must
also be concurrently recommended by at least one other physician not directly
involved with the person's care who has reviewed the person's clinical record.
Such recommendation shall be documented in the person's clinical record and
shall be signed by both physicians. Recommended form CF-MH 3057, Feb. 05,
"Authorization for Electroconvulsive Treatment, " which is incorporated by
reference and may be obtained pursuant to Rule
65E-5.120, F.A.C., of this rule
chapter may be used for this purpose. If used, this form shall also be signed
by the person, if competent, or by the guardian advocate, if previous court
approval has been given, or by the guardian where the person has been found by
the court to be incapacitated, or by the health care surrogate if the person
had expressly delegated such authority to the surrogate in the advance
directive. Express and informed consent from the person or his or her
substitute decision-maker, as required by Section
394.459(3),
F.S., including an opportunity to ask questions and receive answers about the
procedure, shall be noted on or attached to recommended form CF-MH 3057,
"Authorization for Electroconvulsive Treatment, " as referenced in subsection
65E-5.170(7),
F.A.C., or its equivalent, as documentation of the required disclosures and of
the consent. Each signed authorization form is permission for the person to
receive a series of up to, but not more than, the stated number of
electroconvulsive treatments identified on the form. Additional
electroconvulsive treatments require additional written authorization. The
signed authorization form shall be retained in the person's clinical record and
shall comply with the provisions of Section
458.325,
F.S.
Rulemaking Authority
394.457(5),
394.46715 FS. Law Implemented
394, Part I, 394.455(9), (14),
(15),
394.459(3),
394.4625(1)(f),
394.4655,
458.325,
765.401
FS.
New 11-29-98, Amended
4-4-05.
