Current through Register Vol. 63, No. 9, September 1, 2024
(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 309-033-0620 and
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.
Statutory/Other Authority: ORS
413.042 &
426.385
Statutes/Other Implemented: ORS
426.005 -
426.395
