North Dakota Administrative Code
Title 75 - Department of Human Services
Article 75-03 - Community Services
Chapter 75-03-42 - Authorized Electronic Monitoring
Section 75-03-42-02 - Determination of capacity to consent

1. A resident is presumed to have the capacity to consent to authorized electronic monitoring if the resident understands and appreciates the nature and consequences of the decision to consent to authorized electronic monitoring, including the benefits and risks of the decision. If a resident has capacity to consent, only the resident may consent to authorized electronic monitoring in the resident's room.

2. A resident's lack of capacity to consent to authorized electronic monitoring must be documented in writing by the resident's attending physician or by a court order pursuant to North Dakota Century Code chapter 30.1-28. If the resident is not under a guardianship, the attending physician also shall document in writing if the resident regains the capacity to consent to authorized electronic monitoring.

3. If a resident is determined to lack capacity to consent to authorized electronic monitoring, the resident representative may consent to authorized electronic monitoring and complete the required forms.

4. The resident representative shall make the decision of whether to consent to authorized electronic monitoring in the resident's room in accordance with the resident's wishes, values, preferences, and directions.

5. If a facility has reason to believe a resident representative is making decisions or taking actions that are not in the best interests of a resident regarding the use of authorized electronic monitoring, the facility shall report this concern in the manner required to the department or the department's designee.