HF 735

as introduced - 80th Legislature (1997 - 1998) Posted on 12/15/2009 12:00am

  1.1                          A bill for an act 
  1.2             relating to civil commitment; allowing the designated 
  1.3             agency to consent to voluntary treatment for certain 
  1.4             incompetent persons; creating a new standard for 
  1.5             court-ordered early intervention to provide less 
  1.6             intrusive treatment; modifying standards and 
  1.7             procedures for the administration of neuroleptic 
  1.8             medications; providing for access to records; amending 
  1.9             the provisional discharge procedures; amending 
  1.10            Minnesota Statutes 1996, sections 13.42, subdivision 
  1.11            3; 253B.02, subdivision 15, and by adding a 
  1.12            subdivision; 253B.04; 253B.07, subdivisions 1, 2, and 
  1.13            7; and 253B.15, subdivisions 1, 1a, 2, 3, 5, and by 
  1.14            adding subdivisions; proposing coding for new law in 
  1.15            Minnesota Statutes, chapter 253B; repealing Minnesota 
  1.16            Statutes 1996, sections 253B.03, subdivision 6c; and 
  1.17            253B.15, subdivisions 4 and 6. 
  1.18  BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.19     Section 1.  Minnesota Statutes 1996, section 13.42, 
  1.20  subdivision 3, is amended to read: 
  1.21     Subd. 3.  [CLASSIFICATION OF MEDICAL DATA.] Unless the data 
  1.22  is summary data or a statute specifically provides a different 
  1.23  classification, medical data are private but are available only 
  1.24  to the subject of the data as provided in section 144.335, and 
  1.25  shall not be disclosed to others except: 
  1.26     (a) Pursuant to section 13.05; 
  1.27     (b) Pursuant to section 253B.03, subdivision 6c 253B.0921; 
  1.28     (c) Pursuant to a valid court order; 
  1.29     (d) To administer federal funds or programs; 
  1.30     (e) To the surviving spouse, parents, children, and 
  1.31  siblings of a deceased patient or client or, if there are no 
  2.1   surviving spouse, parents, children, or siblings, to the 
  2.2   surviving heirs of the nearest degree of kindred; 
  2.3      (f) To communicate a patient's or client's condition to a 
  2.4   family member or other appropriate person in accordance with 
  2.5   acceptable medical practice, unless the patient or client 
  2.6   directs otherwise; or 
  2.7      (g) As otherwise required by law. 
  2.8      Sec. 2.  Minnesota Statutes 1996, section 253B.02, is 
  2.9   amended by adding a subdivision to read: 
  2.10     Subd. 12a.  [MENTAL ILLNESS.] "Mental illness" has the 
  2.11  meaning given in section 245.462, subdivision 20. 
  2.12     Sec. 3.  Minnesota Statutes 1996, section 253B.02, 
  2.13  subdivision 15, is amended to read: 
  2.14     Subd. 15.  [PATIENT.] "Patient" means any person who is 
  2.15  institutionalized or, committed, or determined to be in need of 
  2.16  other court-ordered intervention under this chapter.  
  2.17     Sec. 4.  Minnesota Statutes 1996, section 253B.04, is 
  2.18  amended to read: 
  2.19     253B.04 [INFORMAL VOLUNTARY TREATMENT AND ADMISSION 
  2.20  PROCEDURES.] 
  2.21     Subdivision 1.  [ADMISSION BY CONSENT.] Informal Voluntary 
  2.22  admission by consent is preferred over involuntary commitment.  
  2.23  Any person 16 years of age or older may request to be admitted 
  2.24  to a treatment facility as an informal a voluntary patient for 
  2.25  observation, evaluation, diagnosis, care and treatment without 
  2.26  making formal written application.  Any person under the age of 
  2.27  16 years may be admitted as an informal a voluntary patient with 
  2.28  the consent of a parent or legal guardian if it is determined by 
  2.29  independent examination that there is reasonable evidence that 
  2.30  (a) the proposed patient is mentally ill, mentally retarded, or 
  2.31  chemically dependent; and (b) the proposed patient is suitable 
  2.32  for treatment.  The head of the treatment facility shall not 
  2.33  arbitrarily refuse any person seeking admission as an informal a 
  2.34  voluntary patient.  
  2.35     Subd. 1a.  [VOLUNTARY TREATMENT OR ADMISSION FOR PERSONS 
  2.36  WITH MENTAL ILLNESS.] (a) In the absence of a durable power of 
  3.1   attorney for health care that authorizes consent, the designated 
  3.2   agency or its designee may give informed consent for mental 
  3.3   health treatment or admission to a treatment facility on behalf 
  3.4   of a person with a mental illness who voluntarily agrees to 
  3.5   accept treatment or admission but is not capable of giving 
  3.6   informed consent. 
  3.7      (b) A person who receives treatment or is admitted to a 
  3.8   facility under this subdivision has the right to refuse 
  3.9   treatment at any time or to be released from a facility as 
  3.10  provided under subdivision 2.  The person or an interested 
  3.11  person acting on the person's behalf may seek expedited court 
  3.12  review for a determination of whether the person's agreement to 
  3.13  accept treatment or admission is voluntary.  At the time a 
  3.14  person agrees to treatment or admission to a facility under this 
  3.15  subdivision, the designated agency or its designee shall inform 
  3.16  the person in writing of the person's rights under this 
  3.17  paragraph. 
  3.18     (c) This subdivision does not authorize the administration 
  3.19  of neuroleptic medications.  Neuroleptic medications may be 
  3.20  administered only as provided in section 253B.092. 
  3.21     Subd. 2.  [RELEASE.] Every patient admitted for mental 
  3.22  illness or mental retardation under this section shall be 
  3.23  informed in writing at the time of admission that the patient 
  3.24  has a right to leave the facility within 12 hours of making a 
  3.25  request, unless held under another provision of this chapter.  
  3.26  Every patient admitted for chemical dependency under this 
  3.27  section shall be informed in writing at the time of admission 
  3.28  that the patient has a right to leave the facility within 72 
  3.29  hours, exclusive of Saturdays, Sundays and holidays, of making a 
  3.30  request, unless held under another provision of this chapter.  
  3.31  The request shall be submitted in writing to the head of the 
  3.32  treatment facility.  On deeming it to be in the best interest of 
  3.33  the person, the person's family, or the public, the head of the 
  3.34  treatment facility shall petition for the commitment of the 
  3.35  person pursuant to section 253B.07. 
  3.36     Sec. 5.  [253B.064] [COURT-ORDERED EARLY INTERVENTION; 
  4.1   PRELIMINARY PROCEDURES.] 
  4.2      Subdivision 1.  [GENERAL.] (a) An interested person may 
  4.3   apply to the designated agency for early intervention treatment 
  4.4   of a proposed patient in the county of the patient's residence 
  4.5   or presence, or in the county of financial responsibility for 
  4.6   the proposed patient.  If the designated agency determines that 
  4.7   early intervention treatment may be appropriate, a prepetition 
  4.8   screening report must be prepared pursuant to section 253B.07, 
  4.9   subdivision 1.  The county attorney may file a petition for 
  4.10  early intervention treatment following the procedures of section 
  4.11  253B.07, subdivision 2. 
  4.12     (b) The proposed patient is entitled to representation by 
  4.13  counsel, pursuant to section 253B.03, subdivision 9.  The 
  4.14  proposed patient shall be examined by an examiner, and has the 
  4.15  right to a second independent examiner, pursuant to section 
  4.16  253B.07, subdivisions 3 and 5. 
  4.17     Subd. 2.  [PREHEARING EXAMINATION; FAILURE TO APPEAR.] If a 
  4.18  proposed patient fails to appear for the examination, the court 
  4.19  may: 
  4.20     (1) reschedule the examination; or 
  4.21     (2) deem the failure to appear as a waiver of the proposed 
  4.22  patient's right to an examination and consider the failure to 
  4.23  appear when deciding the merits of the petition for early 
  4.24  intervention. 
  4.25     Sec. 6.  [253B.065] [COURT-ORDERED EARLY INTERVENTION; 
  4.26  HEARING PROCEDURES.] 
  4.27     Subdivision 1.  [TIME FOR EARLY INTERVENTION HEARING.] The 
  4.28  hearing on the petition for early intervention shall be held 
  4.29  within 14 days from the date of the filing of the petition.  For 
  4.30  good cause shown, the court may extend the time of hearing up to 
  4.31  an additional 30 days.  When any proposed patient has not had a 
  4.32  hearing on a petition filed for early intervention within the 
  4.33  allowed time, the proceedings shall be dismissed.  
  4.34     Subd. 2.  [NOTICE OF HEARING.] The proposed patient, the 
  4.35  patient's counsel, the petitioner, the county attorney, and any 
  4.36  other persons as the court directs shall be given at least five 
  5.1   days' notice that a hearing will be held and at least two days' 
  5.2   notice of the time and date of the hearing, except that any 
  5.3   person may waive notice.  Notice to the proposed patient may be 
  5.4   waived by patient's counsel. 
  5.5      Subd. 3.  [FAILURE TO APPEAR.] If a proposed patient fails 
  5.6   to appear at the hearing, the court may reschedule the hearing 
  5.7   within five days and direct a health officer, peace officer, or 
  5.8   other person to take the proposed patient into custody and 
  5.9   transport the person to the hearing. 
  5.10     Subd. 4.  [PROCEDURES.] The hearing must be conducted 
  5.11  pursuant to section 253B.08, subdivisions 3 to 8. 
  5.12     Subd. 5.  [EARLY INTERVENTION CRITERIA.] (a) A court shall 
  5.13  order early intervention treatment of a proposed patient who 
  5.14  meets the criteria under paragraph (b).  The early intervention 
  5.15  treatment must be less intrusive than long-term inpatient 
  5.16  commitment and must be the least restrictive treatment program 
  5.17  available that can meet the patient's treatment needs. 
  5.18     (b) The court shall order early intervention treatment if 
  5.19  the court finds by clear and convincing evidence that a proposed 
  5.20  patient refuses to accept appropriate mental health treatment 
  5.21  and has a mental illness that is manifested by instances of 
  5.22  grossly disturbed behavior or faulty perceptions that: 
  5.23     (1) significantly interfere with the person's ability to 
  5.24  care for self; or 
  5.25     (2) have caused the proposed patient to receive 
  5.26  court-ordered inpatient treatment twice within the previous 
  5.27  three years, and the proposed patient is: 
  5.28     (i) exhibiting symptoms or behavior similar to symptoms or 
  5.29  behavior that precipitated court-ordered inpatient treatment; 
  5.30  and 
  5.31     (ii) reasonably expected to physically or mentally 
  5.32  deteriorate to the point of meeting the criteria for civil 
  5.33  commitment unless treated. 
  5.34     The court may not order early intervention treatment under 
  5.35  clause (1) unless clear and convincing evidence shows that the 
  5.36  proposed patient, when competent, would have chosen 
  6.1   substantially similar treatment under the same circumstances. 
  6.2      Sec. 7.  [253B.066] [COURT-ORDERED EARLY INTERVENTION; 
  6.3   DECISION; TREATMENT ALTERNATIVES; DURATION.] 
  6.4      Subdivision 1.  [TREATMENT ALTERNATIVES.] If the court 
  6.5   orders early intervention under section 253B.065, subdivision 5, 
  6.6   the court may include in its order a variety of treatment 
  6.7   alternatives including, but not limited to, day treatment, 
  6.8   medication compliance monitoring, and short-term hospitalization 
  6.9   not to exceed ten days. 
  6.10     If the court orders short-term hospitalization and the 
  6.11  proposed patient will not go voluntarily, the court may direct a 
  6.12  health officer, peace officer, or other person to take the 
  6.13  person into custody and transport the person to the hospital. 
  6.14     Subd. 2.  [FINDINGS.] The court shall find the facts 
  6.15  specifically and separately state its conclusions of law in its 
  6.16  order.  Where early intervention is ordered, the findings of 
  6.17  fact and conclusions of law shall specifically state the 
  6.18  proposed patient's conduct which is a basis for determining that 
  6.19  each of the requisites for early intervention is met.  
  6.20     The court shall also determine the nature and extent of the 
  6.21  property of the patient and of the persons who are liable for 
  6.22  the patient's care.  
  6.23     Subd. 3.  [DURATION.] The order for early intervention 
  6.24  treatment shall not exceed 90 days. 
  6.25     Sec. 8.  Minnesota Statutes 1996, section 253B.07, 
  6.26  subdivision 1, is amended to read: 
  6.27     Subdivision 1.  [PREPETITION SCREENING.] (a) Prior to 
  6.28  filing a petition for commitment of or early intervention for a 
  6.29  proposed patient, an interested person shall apply to the 
  6.30  designated agency in the county of the proposed patient's 
  6.31  residence or presence for conduct of a preliminary 
  6.32  investigation, except when the proposed patient has been 
  6.33  acquitted of a crime under section 611.026 and the county 
  6.34  attorney is required to file a petition for commitment pursuant 
  6.35  to subdivision 2.  In any case coming within this exception, the 
  6.36  county attorney shall apply to the designated county agency in 
  7.1   the county in which the acquittal took place for a preliminary 
  7.2   investigation unless substantially the same information relevant 
  7.3   to the proposed patient's current mental condition as could be 
  7.4   obtained by a preliminary investigation is part of the court 
  7.5   record in the criminal proceeding or is contained in the report 
  7.6   of a mental examination conducted in connection with the 
  7.7   criminal proceeding.  The designated agency shall appoint a 
  7.8   screening team to conduct an investigation which shall include:  
  7.9      (i) a personal interview with the proposed patient and 
  7.10  other individuals who appear to have knowledge of the condition 
  7.11  of the proposed patient.  If the proposed patient is not 
  7.12  interviewed, reasons must be documented; 
  7.13     (ii) identification and investigation of specific alleged 
  7.14  conduct which is the basis for application; and 
  7.15     (iii) identification, exploration, and listing of the 
  7.16  reasons for rejecting or recommending alternatives to 
  7.17  involuntary placement; and 
  7.18     (iv) in the case of a commitment based on mental illness, 
  7.19  the following information, if it is known or available:  
  7.20  information that may be relevant to the administration of 
  7.21  neuroleptic medications, if necessary, including the existence 
  7.22  of a declaration under section 253B.03, subdivision 6d, or a 
  7.23  durable power of attorney for health care under chapter 145C or 
  7.24  a guardian, conservator, proxy, or attorney-in-fact with 
  7.25  authority to make health care decisions for the proposed 
  7.26  patient; the capacity of the proposed patient to make decisions 
  7.27  regarding administration of neuroleptic medication; and whether 
  7.28  the proposed patient is likely to consent or refuse consent to 
  7.29  administration of the medication.  
  7.30     (b) In conducting the investigation required by this 
  7.31  subdivision, the screening team shall have access to all 
  7.32  relevant medical records of proposed patients currently in 
  7.33  treatment facilities.  Data collected pursuant to this clause 
  7.34  shall be considered private data on individuals.  
  7.35     (c) When the prepetition screening team recommends 
  7.36  commitment, a written report shall be sent to the county 
  8.1   attorney for the county in which the petition is to be filed. 
  8.2      (d) The prepetition screening team shall refuse to support 
  8.3   a petition if the investigation does not disclose evidence 
  8.4   sufficient to support commitment.  Notice of the prepetition 
  8.5   screening team's decision shall be provided to the prospective 
  8.6   petitioner.  
  8.7      (e) If the interested person wishes to proceed with a 
  8.8   petition contrary to the recommendation of the prepetition 
  8.9   screening team, application may be made directly to the county 
  8.10  attorney, who may determine whether or not to proceed with the 
  8.11  petition.  Notice of the county attorney's determination shall 
  8.12  be provided to the interested party.  
  8.13     (f) If a court petitions for commitment pursuant to the 
  8.14  rules of criminal procedure or a county attorney petitions 
  8.15  pursuant to acquittal of a criminal charge under section 
  8.16  611.026, the prepetition investigation, if required by this 
  8.17  section, shall be completed within seven days after the filing 
  8.18  of the petition.  
  8.19     Sec. 9.  Minnesota Statutes 1996, section 253B.07, 
  8.20  subdivision 2, is amended to read: 
  8.21     Subd. 2.  [THE PETITION.] Any interested person may file a 
  8.22  petition for commitment in the court of the county of the 
  8.23  proposed patient's residence or presence.  Following an 
  8.24  acquittal of a person of a criminal charge under section 
  8.25  611.026, the petition shall be filed by the county attorney of 
  8.26  the county in which the acquittal took place and the petition 
  8.27  shall be filed with the court in which the acquittal took place, 
  8.28  and that court shall be the committing court for purposes of 
  8.29  this chapter.  The petition shall set forth the name and address 
  8.30  of the proposed patient, the name and address of the patient's 
  8.31  nearest relatives, and the reasons for the petition.  The 
  8.32  petition must contain factual descriptions of the proposed 
  8.33  patient's recent behavior, including a description of the 
  8.34  behavior, where it occurred, and over what period of time it 
  8.35  occurred.  Each factual allegation must be supported by 
  8.36  observations of witnesses named in the petition.  Petitions 
  9.1   shall be stated in behavioral terms and shall not contain 
  9.2   judgmental or conclusory statements.  The petition shall be 
  9.3   accompanied by a written statement by an examiner stating that 
  9.4   the examiner has examined the proposed patient within the 15 
  9.5   days preceding the filing of the petition and is of the opinion 
  9.6   that the proposed patient is suffering a designated disability 
  9.7   and should be committed to a treatment facility.  The statement 
  9.8   shall include the reasons for the opinion.  In the case of a 
  9.9   commitment based on mental illness, the petition and the 
  9.10  examiner's statement must include, to the extent this 
  9.11  information is available, a statement and opinion regarding the 
  9.12  proposed patient's capacity to make decisions regarding the 
  9.13  administration of neuroleptic medications and the reasons for 
  9.14  the opinion.  If a petitioner has been unable to secure a 
  9.15  statement from an examiner, the petition shall include 
  9.16  documentation that a reasonable effort has been made to secure 
  9.17  the supporting statement. 
  9.18     Sec. 10.  Minnesota Statutes 1996, section 253B.07, 
  9.19  subdivision 7, is amended to read: 
  9.20     Subd. 7.  [PRELIMINARY HEARING.] (a) No proposed patient 
  9.21  may be held pursuant to subdivision 6 for longer than 72 hours, 
  9.22  exclusive of Saturdays, Sundays, and legal holidays, unless the 
  9.23  court holds a preliminary hearing and determines that probable 
  9.24  cause exists to continue to hold the person.  
  9.25     (b) The proposed patient, patient's counsel, the 
  9.26  petitioner, the county attorney, and any other persons as the 
  9.27  court directs shall be given at least 24 hours written notice of 
  9.28  the preliminary hearing.  The notice shall include the alleged 
  9.29  grounds for confinement.  The proposed patient shall be 
  9.30  represented at the preliminary hearing by counsel.  If the court 
  9.31  finds it to be reliable, it may admit hearsay evidence, 
  9.32  including written reports.  
  9.33     (c) The court, on its motion or on motion of any party, may 
  9.34  exclude or excuse a respondent who is seriously disruptive or 
  9.35  who is totally incapable of comprehending and participating in 
  9.36  the proceedings.  In such instances, the court shall, with 
 10.1   specificity on the record, state the behavior of respondent or 
 10.2   other circumstances justifying proceeding in the absence of the 
 10.3   respondent.  
 10.4      (d) The court may order the continued holding of the 
 10.5   proposed patient if it finds, by a preponderance of the 
 10.6   evidence, that serious imminent physical harm to the patient or 
 10.7   others is likely if the proposed patient is not confined.  The 
 10.8   fact that a proposed patient was acquitted of a crime against 
 10.9   the person under section 611.026 immediately preceding the 
 10.10  filing of the petition constitutes evidence that serious 
 10.11  imminent physical harm to the patient or others is likely if the 
 10.12  proposed patient is not confined and shifts the burden of going 
 10.13  forward in the presentation of evidence to the proposed patient; 
 10.14  provided that the standard of proof remains as required by this 
 10.15  chapter.  
 10.16     (e) Upon request of the petitioner in the case of a 
 10.17  commitment based on mental illness, the court shall make a 
 10.18  preliminary finding based on a showing of probable cause as to 
 10.19  whether the proposed patient has the capacity to make an 
 10.20  informed decision regarding administration of neuroleptic 
 10.21  medication.  If lack of capacity is found, the court shall 
 10.22  appoint a substitute decision maker as provided in section 
 10.23  253B.092.  With the consent of the substitute decision maker and 
 10.24  the proposed patient, neuroleptic medication may be administered 
 10.25  pending the commitment hearing under section 253B.08.  If either 
 10.26  objects, the issue must be considered at the commitment hearing 
 10.27  and the medication may not be administered. 
 10.28     Sec. 11.  [253B.092] [STANDARDS AND CRITERIA FOR 
 10.29  ADMINISTRATION OF NEUROLEPTIC MEDICATION; PROCEDURES.] 
 10.30     Subdivision 1.  [GENERAL.] Neuroleptic medications may be 
 10.31  administered to patients subject to early intervention or civil 
 10.32  commitment as mentally ill or mentally ill and dangerous only as 
 10.33  provided in this section.  For purposes of this section, 
 10.34  "patient" includes a proposed patient who is the subject of a 
 10.35  petition for early intervention or commitment. 
 10.36     Subd. 2.  [ADMINISTRATION WITHOUT JUDICIAL 
 11.1   REVIEW.] Neuroleptic medications may be administered without 
 11.2   judicial review in the following circumstances: 
 11.3      (1) the patient has the capacity to make an informed 
 11.4   decision under subdivision 4; 
 11.5      (2) the patient does not have the present capacity to 
 11.6   consent to the administration of neuroleptic medication, but 
 11.7   prepared a declaration under section 253B.03, subdivision 6d, 
 11.8   requesting treatment or authorizing a proxy to request 
 11.9   treatment, and the proxy has requested the treatment; or 
 11.10     (3) the patient is refusing medication and is in an 
 11.11  emergency situation. 
 11.12     Subd. 3.  [EMERGENCY ADMINISTRATION.] A treating physician 
 11.13  may administer neuroleptic medication to a patient who does not 
 11.14  have capacity to make a decision regarding administration of the 
 11.15  medication and for whom a substitute decision maker has not been 
 11.16  appointed, if the patient is in an emergency situation.  
 11.17  Medication may be administered for so long as the emergency 
 11.18  continues to exist, up to 14 days, if the treating physician 
 11.19  determines that the medication is necessary to prevent serious, 
 11.20  immediate physical harm to the patient or to others.  If a 
 11.21  petition for authorization to administer medication is filed 
 11.22  within the 14 days, the treating physician may continue the 
 11.23  medication through the date of the first court hearing, if the 
 11.24  emergency continues to exist.  If the petition for authorization 
 11.25  to administer medication is filed in conjunction with a petition 
 11.26  for commitment or early intervention and the court makes a 
 11.27  determination at the preliminary hearing under section 253B.07, 
 11.28  subdivision 7, that there is sufficient cause to continue the 
 11.29  physician's order until the hearing under section 253B.08, the 
 11.30  treating physician may continue the medication until that 
 11.31  hearing, if the emergency continues to exist.  The treatment 
 11.32  facility shall document the emergency in the patient's medical 
 11.33  record in specific behavioral terms. 
 11.34     Subd. 4.  [PATIENTS WITH CAPACITY TO MAKE INFORMED 
 11.35  DECISION.] (a) A patient who has the capacity to make an 
 11.36  informed decision regarding the administration of neuroleptic 
 12.1   medication may consent or refuse consent to administration of 
 12.2   the medication.  The informed consent of a patient must be in 
 12.3   writing.  Unless a guardian or conservator with authority to 
 12.4   make medical treatment decisions has already been appointed on 
 12.5   behalf of a patient, a patient is presumed to have capacity to 
 12.6   make decisions regarding administration of neuroleptic 
 12.7   medication.  The petitioner in a proceeding under this chapter 
 12.8   has the burden of proving incapacity by a preponderance of the 
 12.9   evidence. 
 12.10     (b) In determining a person's capacity to make decisions 
 12.11  regarding the administration of neuroleptic medication, the 
 12.12  court shall consider: 
 12.13     (1) whether the person demonstrates an awareness of the 
 12.14  nature of the person's situation, including the reasons for 
 12.15  hospitalization, and the possible consequences of refusing 
 12.16  treatment with neuroleptic medications; 
 12.17     (2) whether the person demonstrates a factual understanding 
 12.18  of treatment with neuroleptic medications and the risks, 
 12.19  benefits, and alternatives; and 
 12.20     (3) whether the person communicates a clear choice 
 12.21  regarding treatment with neuroleptic medications that is a 
 12.22  reasoned one not based on delusion, even though it may not be in 
 12.23  the person's best interests. 
 12.24     Factual understanding under clause (2) need not be 
 12.25  scientific.  Communication of choice under clause (3) may be 
 12.26  verbal or nonverbal.  Disagreement with the physician's 
 12.27  recommendation is not per se evidence of an unreasonable 
 12.28  decision. 
 12.29     Subd. 5.  [PATIENTS WITHOUT CAPACITY TO MAKE INFORMED 
 12.30  DECISION; SUBSTITUTE DECISION MAKER.] (a) At the probable cause 
 12.31  hearing under a petition for commitment or early intervention 
 12.32  treatment, the patient shall be examined by a qualified examiner 
 12.33  who shall determine the patient's capacity.  The court shall 
 12.34  make a preliminary decision as to whether neuroleptic medication 
 12.35  is appropriate treatment, and whether the patient has the 
 12.36  capacity to make an informed decision to take neuroleptic 
 13.1   medication.  If a court finds that a patient does not have 
 13.2   capacity to make an informed decision regarding the 
 13.3   administration of neuroleptic medication, the court shall 
 13.4   appoint a substitute decision maker with authority to consent to 
 13.5   the administration of neuroleptic medication as provided in this 
 13.6   section.  The substitute decision maker must be an individual or 
 13.7   a community or institutional multidisciplinary panel designated 
 13.8   by the local mental health authority.  In appointing a 
 13.9   substitute decision maker, the court shall give preference to a 
 13.10  guardian or conservator, proxy, or attorney-in-fact with 
 13.11  authority to make health care decisions for the patient.  The 
 13.12  court may provide for the payment of a reasonable fee to the 
 13.13  substitute decision maker for services under this section or may 
 13.14  appoint a volunteer. 
 13.15     (b) If a person's treating physician recommends treatment 
 13.16  with neuroleptic medication, the substitute decision maker may 
 13.17  give or withhold consent to the administration of the 
 13.18  medication, based on the standards under subdivision 7.  If the 
 13.19  substitute decision maker gives informed consent to the 
 13.20  treatment and the person does not refuse, the substitute 
 13.21  decision maker shall notify the court and the treating physician 
 13.22  and the medication may be administered.  The consent of the 
 13.23  substitute decision maker must be in writing.  If the substitute 
 13.24  decision maker refuses consent or the person refuses consent, 
 13.25  neuroleptic medication may not be administered to the person 
 13.26  without a court order. 
 13.27     (c) If the court made a preliminary decision as to the 
 13.28  patient's capacity to make an informed decision as to whether to 
 13.29  take neuroleptic medication, and if there is a hearing 
 13.30  subsequent to the probable cause hearing, then the court shall 
 13.31  review its determination at the hearing.  The court shall make a 
 13.32  finding of fact which affirms or reverses its preliminary 
 13.33  finding.  If the court did not make a preliminary decision at 
 13.34  the probable cause hearing, it may determine the patient's 
 13.35  capacity at a later hearing.  If the court then finds that the 
 13.36  patient lacks capacity and no substitute decision maker has been 
 14.1   appointed, the court shall appoint a substitute decision maker. 
 14.2      If the substitute decision maker has objected to the 
 14.3   administration of neuroleptic medication to the patient, the 
 14.4   court shall either affirm or reverse the objection.  If the 
 14.5   substitute decision maker consented to the administration of the 
 14.6   medication and the patient has not refused, the court shall make 
 14.7   a finding that the substitute decision maker has consented and 
 14.8   treatment may be authorized. 
 14.9      The substitute decision maker's authority to consent to 
 14.10  treatment lasts for the duration of the court's order of 
 14.11  appointment, until the patient has the capacity to make an 
 14.12  informed decision, or until modified by the court. 
 14.13     If the substitute decision maker withdraws consent, 
 14.14  neuroleptic medication may not be administered without a court 
 14.15  order. 
 14.16     (d) If there is no hearing after the probable cause 
 14.17  hearing, then the court shall, upon the request of any 
 14.18  interested party, review the reasonableness of the substitute 
 14.19  decision maker's decision based on the standards under 
 14.20  subdivision 7.  The court shall enter an order upholding or 
 14.21  reversing the decision within seven days. 
 14.22     Subd. 6.  [DOSAGE.] The court may limit the maximum dosage 
 14.23  of neuroleptic medication that may be administered. 
 14.24     Subd. 7.  [STANDARDS FOR MAKING DECISION REGARDING 
 14.25  ADMINISTRATION OF NEUROLEPTIC MEDICATION.] (a) When a person 
 14.26  lacks capacity to make decisions regarding the administration of 
 14.27  neuroleptic medication, the substitute decision maker or the 
 14.28  court shall use the standards in this subdivision in making a 
 14.29  decision regarding administration of the medication. 
 14.30     (b) If the person clearly stated what the person would 
 14.31  choose to do in this situation when the person had the capacity 
 14.32  to make a reasoned decision, the person's wishes must be 
 14.33  followed using substituted judgment.  Evidence of the person's 
 14.34  wishes may include written instruments, including a durable 
 14.35  power of attorney for health care under chapter 145C or a 
 14.36  declaration under section 253B.03, subdivision 6d. 
 15.1      (c) If evidence of the person's wishes regarding the 
 15.2   administration of neuroleptic medications is conflicting or 
 15.3   lacking, the decision must be based on what a reasonable person 
 15.4   would do, taking into consideration: 
 15.5      (1) the person's family, community, moral, religious, and 
 15.6   social values; 
 15.7      (2) the medical risks, benefits, and alternatives to the 
 15.8   proposed treatment; 
 15.9      (3) past efficacy and any extenuating circumstances of past 
 15.10  use of neuroleptic medications; and 
 15.11     (4) any other relevant factors. 
 15.12     Subd. 8.  [SUBSEQUENT APPOINTMENT OF SUBSTITUTE DECISION 
 15.13  MAKER.] If an order for civil commitment or early intervention 
 15.14  did not authorize administration of neuroleptic medications, the 
 15.15  treatment facility may file a motion to initiate the process for 
 15.16  administration of the medication.  The court shall make a 
 15.17  preliminary determination within 72 hours and, except as 
 15.18  otherwise provided in this subdivision, proceed in the same 
 15.19  manner as if the request were made at the preliminary hearing 
 15.20  before civil commitment or early intervention and the provisions 
 15.21  of section 253B.07, subdivision 7, paragraph (e), apply.  If the 
 15.22  court determines that the person does not have the capacity to 
 15.23  make an informed decision, the court shall appoint a substitute 
 15.24  decision maker.  A final hearing must be held within seven days 
 15.25  of the preliminary decision. 
 15.26     Subd. 9.  [FORCED ADMINISTRATION.] If physical force is 
 15.27  required to administer the neuroleptic medication, force may 
 15.28  only take place in a treatment facility or therapeutic setting 
 15.29  where the person's condition can be reassessed and appropriate 
 15.30  medical staff are available. 
 15.31     Subd. 10.  [PROCEDURE WHEN PATIENT REFUSES MEDICATION.] (a) 
 15.32  A physician on behalf of a treatment facility may file a 
 15.33  petition requesting authorization to administer neuroleptic 
 15.34  medication to a patient who is not competent to consent to the 
 15.35  prescribed medication, as certified by a physician, and who 
 15.36  refuses to take the prescribed medication.  A patient may also 
 16.1   file a petition pursuant to section 253B.17 for a review of a 
 16.2   physician's order for neuroleptic medication.  
 16.3      (b) A petition may be filed with the district court in the 
 16.4   county of commitment or, with the consent of the committing 
 16.5   court, the county in which the patient is being held or treated. 
 16.6   The petition may be heard as part of any other district court 
 16.7   proceeding under this chapter.  The hearing must be held within 
 16.8   14 days from the date of the filing of the petition.  By 
 16.9   agreement of the parties, or for good cause shown, the court may 
 16.10  extend the time of hearing an additional 30 days.  
 16.11     (c) If the petitioning facility has a treatment review 
 16.12  panel, the panel shall review the appropriateness of the 
 16.13  proposed medication and submit its recommendations to the court, 
 16.14  to the county attorney, and to the patient's counsel at least 
 16.15  two days prior to the hearing. 
 16.16     (d) The patient must be examined by a court examiner prior 
 16.17  to the hearing.  If the patient refuses to participate in an 
 16.18  examination, the examiner may rely on the patient's medical 
 16.19  records to reach an opinion as to the appropriateness of 
 16.20  neuroleptic medication.  The patient is entitled to counsel and 
 16.21  a second examiner, if requested by the patient or patient's 
 16.22  counsel. 
 16.23     (e) At any time during the commitment proceedings, the 
 16.24  court may appoint a guardian ad litem upon the request of any 
 16.25  party, the recommendation of the prepetition screener, an 
 16.26  examining physician, the court's examiner, or upon the court's 
 16.27  own motion. 
 16.28     (f) The court may base its decision on relevant and 
 16.29  admissible evidence, including the testimony of a treating 
 16.30  physician or other qualified physician, a member of the 
 16.31  patient's treatment team, a court appointed examiner, witness 
 16.32  testimony, or the patient's medical records. 
 16.33     (g) If the patient is found to be competent to decide 
 16.34  whether to take neuroleptic medication, the treating facility 
 16.35  may not administer medication without the patient's informed 
 16.36  written consent or without the declaration of an emergency, or 
 17.1   until further review by the court. 
 17.2      (h) If the patient is found incompetent to decide whether 
 17.3   to take neuroleptic medication, the court may authorize the 
 17.4   treating facility, and any other community or treatment facility 
 17.5   to which the patient may be transferred or provisionally 
 17.6   discharged, to involuntarily administer the medication to the 
 17.7   patient.  A finding of incompetence under this section must not 
 17.8   be construed to determine the patient's competence for any other 
 17.9   purpose.  
 17.10     (i) The court may authorize the administration of 
 17.11  neuroleptic medication until the termination of a determinate 
 17.12  commitment.  If the patient is committed for an indeterminate 
 17.13  period, the court may authorize treatment of neuroleptic 
 17.14  medication for not more than two years, subject to the patient's 
 17.15  right to petition the court for review of the order.  The 
 17.16  treatment facility must submit annual reports to the court, 
 17.17  which shall provide copies to the patient and the respective 
 17.18  attorneys.  
 17.19     (j) If the patient is transferred from a facility which 
 17.20  does not have a treatment review panel to a facility which has a 
 17.21  treatment review panel, the receiving facility shall review the 
 17.22  appropriateness of the patient's medication within 30 days after 
 17.23  the patient begins treatment at the facility. 
 17.24     Subd. 11.  [IMMUNITY.] A substitute decision maker who 
 17.25  consents to treatment is not civilly or criminally liable for 
 17.26  the performance of or the manner of performing the treatment.  A 
 17.27  person is not liable for performing treatment without consent if 
 17.28  the substitute decision maker has given proper written, informed 
 17.29  consent.  This provision does not affect any other liability 
 17.30  that may result from the manner in which the treatment is 
 17.31  performed. 
 17.32     Sec. 12.  [253B.0921] [ACCESS TO MEDICAL RECORDS.] 
 17.33     A treating physician who makes medical decisions regarding 
 17.34  the prescription and administration of medication for treatment 
 17.35  of a mental illness may have access to the physician's order 
 17.36  section of a patient's records on past administration of 
 18.1   medication at any treatment facility, if the patient lacks the 
 18.2   capacity to authorize the release of records.  Upon request of a 
 18.3   treating physician under this section, a treatment facility 
 18.4   shall supply complete information relating to the past records 
 18.5   on administration of medication of a patient subject to this 
 18.6   chapter.  A patient who has the capacity to authorize the 
 18.7   release of data retains the right to make decisions regarding 
 18.8   access to medical records as provided by section 144.335. 
 18.9      Sec. 13.  Minnesota Statutes 1996, section 253B.15, 
 18.10  subdivision 1, is amended to read: 
 18.11     Subdivision 1.  [PROVISIONAL DISCHARGE.] The head of the 
 18.12  treatment facility may provisionally discharge any patient 
 18.13  without discharging the commitment, unless the patient was found 
 18.14  by the committing court to be mentally ill and dangerous to the 
 18.15  public. 
 18.16     Each patient released on provisional discharge shall have 
 18.17  an a written aftercare plan developed which specifies the 
 18.18  services and treatment to be provided as part of the aftercare 
 18.19  plan, the financial resources available to pay for the services 
 18.20  specified, the expected period of provisional discharge, the 
 18.21  precise goals for the granting of a final discharge, and 
 18.22  conditions or restrictions on the patient during the period of 
 18.23  the provisional discharge.  The aftercare plan shall be provided 
 18.24  to the patient, the patient's attorney, and the designated 
 18.25  agency. 
 18.26     The aftercare plan shall be reviewed on a quarterly basis 
 18.27  by the patient, designated agency and other appropriate persons. 
 18.28  The aftercare plan shall contain the grounds upon which a 
 18.29  provisional discharge may be revoked.  The provisional discharge 
 18.30  shall terminate on the date specified in the plan unless 
 18.31  specific action is taken to revoke or extend it.  
 18.32     Sec. 14.  Minnesota Statutes 1996, section 253B.15, 
 18.33  subdivision 1a, is amended to read: 
 18.34     Subd. 1a.  [CASE MANAGER REPRESENTATIVE OF DESIGNATED 
 18.35  AGENCY.] Before a provisional discharge is granted, a 
 18.36  representative of the designated agency must be identified as 
 19.1   the case manager.  The case manager shall to ensure continuity 
 19.2   of care by being involved with the treatment facility and the 
 19.3   patient prior to the provisional discharge.  The case manager 
 19.4   representative of the designated agency shall coordinate plans 
 19.5   for and monitor the patient's aftercare program.  The 
 19.6   representative of the designated agency shall provide the 
 19.7   treatment report to the court required under section 253B.12, 
 19.8   subdivision 1. 
 19.9      Sec. 15.  Minnesota Statutes 1996, section 253B.15, 
 19.10  subdivision 2, is amended to read: 
 19.11     Subd. 2.  [REVOCATION OF PROVISIONAL DISCHARGE.] The head 
 19.12  of the treatment facility designated agency may revoke a 
 19.13  provisional discharge if: 
 19.14     (i) The patient has violated material conditions of the 
 19.15  provisional discharge, and the violation creates the need to 
 19.16  return the patient to the facility a more restrictive setting; 
 19.17  or, 
 19.18     (ii) There exists a serious likelihood that the safety of 
 19.19  the patient or others will be jeopardized, in that either the 
 19.20  patient's need for food, clothing, shelter, or medical care are 
 19.21  not being met, or will not be met in the near future, or the 
 19.22  patient has attempted or threatened to seriously physically harm 
 19.23  self or others; and 
 19.24     (iii) revocation is the least restrictive alternative 
 19.25  available.  
 19.26     Any interested person, including the designated agency, may 
 19.27  request that the head of the treatment facility designated 
 19.28  agency revoke the patient's provisional discharge.  Any person 
 19.29  making a request shall provide the head of the treatment 
 19.30  facility designated agency with a written report setting forth 
 19.31  the specific facts, including witnesses, dates and locations, 
 19.32  supporting a revocation, demonstrating that every effort has 
 19.33  been made to avoid revocation and that revocation is the least 
 19.34  restrictive alternative available.  
 19.35     Sec. 16.  Minnesota Statutes 1996, section 253B.15, 
 19.36  subdivision 3, is amended to read: 
 20.1      Subd. 3.  [PROCEDURE; NOTICE.] When the possibility of 
 20.2   revocation becomes apparent, the designated agency shall notify 
 20.3   the patient, the patient's attorney, and all participants in the 
 20.4   plan, and every effort shall be made to prevent revocation.  
 20.5      Revocation shall be commenced by a the designated agency's 
 20.6   written notice of intent to revoke provisional discharge, which 
 20.7   shall be served upon given to the patient, the patient's 
 20.8   attorney, and the designated agency treatment facility.  The 
 20.9   notice shall set forth the grounds upon which the intention to 
 20.10  revoke is based, and shall inform the patient of the rights of a 
 20.11  patient under this chapter.  
 20.12     Sec. 17.  Minnesota Statutes 1996, section 253B.15, is 
 20.13  amended by adding a subdivision to read: 
 20.14     Subd. 3a.  [REPORT TO THE COURT.] Within 48 hours of giving 
 20.15  notice to the patient, the designated agency shall file with the 
 20.16  court a copy of the notice and a report setting forth the 
 20.17  specific facts, including witnesses, dates and locations, which 
 20.18  (1) support revocation, (2) demonstrate that revocation is the 
 20.19  least restrictive alternative available, and (3) show that 
 20.20  specific efforts were made to avoid revocation.  The designated 
 20.21  agency shall provide copies of the report to the patient, the 
 20.22  patient's attorney, the county attorney, and the treatment 
 20.23  facility within 48 hours of giving notice to the patient under 
 20.24  subdivision 3. 
 20.25     Sec. 18.  Minnesota Statutes 1996, section 253B.15, is 
 20.26  amended by adding a subdivision to read: 
 20.27     Subd. 3b.  [REVIEW.] The patient may request judicial 
 20.28  review of the intended revocation by filing a petition for 
 20.29  review and an affidavit with the committing court.  The 
 20.30  affidavit shall state specific grounds for opposing the 
 20.31  revocation.  If the patient does not file a petition for review 
 20.32  within five days of receiving the notice under subdivision 3, 
 20.33  revocation of the provisional discharge is final and the court, 
 20.34  without hearing, may order the patient into a treatment 
 20.35  facility.  If the patient files a petition for review, the court 
 20.36  shall review the petition and determine whether a genuine issue 
 21.1   exists as to the propriety of the revocation.  The burden of 
 21.2   proof is on the designated agency to show that no genuine issue 
 21.3   exists as to the propriety of the revocation.  If the court 
 21.4   finds that no genuine issue exists as to the propriety of the 
 21.5   revocation, the revocation of the provisional discharge is final.
 21.6      Sec. 19.  Minnesota Statutes 1996, section 253B.15, is 
 21.7   amended by adding a subdivision to read: 
 21.8      Subd. 3c.  [HEARING.] If the court finds under subdivision 
 21.9   3b that a genuine issue exists as to the propriety of the 
 21.10  revocation, the court shall hold a hearing on the petition 
 21.11  within three days after the patient files the petition.  The 
 21.12  court may continue the review hearing for an additional five 
 21.13  days upon any party's showing of good cause.  At the hearing, 
 21.14  the burden of proof is on the designated agency to show a 
 21.15  factual basis for the revocation.  At the conclusion of the 
 21.16  hearing, the court shall make specific findings of fact.  The 
 21.17  court shall affirm the revocation if it finds: 
 21.18     (1) a factual basis for revocation due to: 
 21.19     (i) a violation of the material conditions of the 
 21.20  provisional discharge that creates a need for the patient to 
 21.21  return to a more restrictive setting; or 
 21.22     (ii) a probable danger of harm to the patient or others if 
 21.23  the provisional discharge is not revoked; and 
 21.24     (2) that revocation is the least restrictive alternative 
 21.25  available. 
 21.26     If the court does not affirm the revocation, the court 
 21.27  shall order the patient returned to provisional discharge status.
 21.28     Sec. 20.  Minnesota Statutes 1996, section 253B.15, 
 21.29  subdivision 5, is amended to read: 
 21.30     Subd. 5.  [RETURN TO FACILITY.] The case manager may When 
 21.31  the designated agency serves notice of the intent to revoke a 
 21.32  patient's provisional discharge, it may also apply to the 
 21.33  committing court for an order directing that the patient be 
 21.34  returned to the a facility.  The court may order the patient 
 21.35  returned to the a facility prior to a review hearing only upon 
 21.36  finding that immediate return to the a facility is necessary to 
 22.1   avoid serious, imminent harm to the patient or others because 
 22.2   there is a serious likelihood that the safety of the patient or 
 22.3   others will be jeopardized, in that (1) the patient's need for 
 22.4   food, clothing, shelter, or medical care is not being met, or 
 22.5   will not be met in the near future, or (2) the patient has 
 22.6   attempted or threatened to seriously harm self or others.  If a 
 22.7   voluntary return is not arranged, the head of the treatment 
 22.8   facility may request a health officer, a welfare officer, or a 
 22.9   peace officer to return the patient to the treatment facility 
 22.10  from which the patient was released or to any other treatment 
 22.11  facility which consents to receive the patient.  If necessary, 
 22.12  the head of the treatment facility may request the committing 
 22.13  court to direct a health or peace officer in the county where 
 22.14  the patient is located to return the patient to the treatment 
 22.15  facility or to another treatment facility which consents to 
 22.16  receive the patient.  The expense of returning the patient to a 
 22.17  regional treatment facility center shall be paid by the 
 22.18  commissioner unless paid by the patient or the patient's 
 22.19  relatives.  If the court orders the patient to return to the 
 22.20  treatment facility and the patient wants judicial review of the 
 22.21  revocation, the patient must file the petition for review and 
 22.22  affidavit required under subdivision 3b within 48 hours of 
 22.23  receipt of the notice of the intent to revoke.  The court must 
 22.24  issue a final determination on the revocation within five days 
 22.25  after the designated agency files the notice of intention to 
 22.26  revoke.  
 22.27     Sec. 21.  [REPEALER.] 
 22.28     Minnesota Statutes 1996, sections 253B.03, subdivision 6c; 
 22.29  and 253B.15, subdivisions 4 and 6, are repealed.