HF 2865

as introduced - 86th Legislature (2009 - 2010) Posted on 02/10/2010 03:26pm

A bill for an act
relating to mental health; establishing procedures for administration of
electroconvulsive therapy; proposing coding for new law in Minnesota Statutes,
chapter 253B.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

new text begin [253B.094] ADMINISTRATION OF ELECTROCONVULSIVE
THERAPY.
new text end

new text begin Subdivision 1. new text end

new text begin General. new text end

new text begin Electroconvulsive therapy (ECT) shall be administered
to patients subject to early intervention or civil commitment as mentally ill or mentally
ill and dangerous only as provided in this section. For purposes of this section, "patient"
means an individual who is the subject of a petition for early intervention or commitment
as mentally ill or mentally ill and dangerous. In the case of patients under age 18,
including emancipated minors, electroconvulsive therapy shall not be administered
without judicial authorization.
new text end

new text begin Subd. 2. new text end

new text begin Administration without judicial review. new text end

new text begin Electroconvulsive therapy may
be administered without judicial review only in the following circumstances:
new text end

new text begin (1) the patient has the capacity to make an informed decision under subdivisions 4
and 5; or
new text end

new text begin (2) the patient does not have the present capacity to consent to administration of
electroconvulsive therapy but prepared a health care directive under chapter 145C or a
declaration under section 253B.03, subdivision 6d, requesting treatment or authorizing an
agent or proxy to request treatment, and the agent or proxy has requested the treatment.
new text end

new text begin Subd. 3. new text end

new text begin Emergency administration. new text end

new text begin When a treating physician determines that
a patient's condition warrants emergency administration of electroconvulsive therapy,
if the patient does not have capacity to make a decision regarding administration of
electroconvulsive therapy the head of the treatment facility may seek an expedited
court hearing. The expedited hearing must be held within 72 hours of the request.
Electroconvulsive therapy shall not be administered prior to issuance of a court order.
new text end

new text begin Subd. 4. new text end

new text begin Patients with capacity to make informed decision. new text end

new text begin A patient who has
capacity to make an informed decision regarding the administration of electroconvulsive
therapy may consent or refuse to consent to electroconvulsive therapy. The informed
consent of a patient must be in writing and may be withdrawn at any time.
new text end

new text begin Subd. 5. new text end

new text begin Determination of capacity. new text end

new text begin (a) A patient is presumed to have capacity to
make decisions regarding the administration of electroconvulsive therapy.
new text end

new text begin (b) A patient has capacity to give informed consent when the following conditions
are met:
new text end

new text begin (1) the patient demonstrates an awareness of the nature of the patient's
condition, including the need for treatment and the possible consequences of refusing
electroconvulsive therapy;
new text end

new text begin (2) the patient demonstrates an understanding of the proposed treatment and the
risks, benefits, and alternatives to electroconvulsive therapy; and
new text end

new text begin (3) the patient communicates verbally or nonverbally a clear choice regarding
electroconvulsive therapy treatment, and the choice is a reasoned one, not based
on delusion, even though the treatment may not be in the patient's best interests.
Disagreement with the physician's recommendation is not evidence of incapacity.
new text end

new text begin Subd. 6. new text end

new text begin Factors to be considered in determining medical indications. new text end

new text begin In
assessing whether electroconvulsive therapy is medically indicated, the medical director
of the facility where the patient resides or the patient's physician shall consider the
following factors:
new text end

new text begin (1) the predicted extent and duration of the therapeutic effects on the patient's mental
activity and behavior patterns that the electroconvulsive therapy is expected to produce;
new text end

new text begin (2) the risks of adverse effects compared with the potential benefits to the patient;
new text end

new text begin (3) the likelihood electroconvulsive therapy will produce the desired effects;
new text end

new text begin (4) whether alternative treatments have been considered that produce less risk;
new text end

new text begin (5) the medical community's standard for use of electroconvulsive therapy; and
new text end

new text begin (6) the patient's capacity to determine whether the treatment is desirable.
new text end

new text begin Subd. 7. new text end

new text begin Patient without capacity to make informed decision. new text end

new text begin (a) If the patient
refuses to consent to treatment with electroconvulsive therapy or is found to lack capacity
to consent, and absent an advance directive, electroconvulsive therapy shall not be
administered without a court order. Upon receiving a written request for a hearing, the
court shall schedule the hearing within 14 days of the request. The matter may be heard as
part of any other district court proceeding under this chapter. By agreement of the parties
or for good cause shown, the court may extend the time of hearing an additional 30 days.
new text end

new text begin (b) The petition shall state that consent is requested to administer electroconvulsive
therapy, describe its purpose, recite the risks and the effects of the procedure, and recite the
findings of the medical director or treating physician as provided in subdivisions 5 and 6.
new text end

new text begin (c) The court shall appoint a guardian ad litem to represent the interests of the patient.
The guardian ad litem shall not be a person responsible for the patient's commitment.
new text end

new text begin (d) The patient is entitled to counsel.
new text end

new text begin (e) The patient must be examined by a court examiner prior to the hearing. If the
patient refuses to participate in an examination, the examiner may rely on the patient's
medical records to reach an opinion as to the appropriateness of electroconvulsive therapy.
The patient is entitled to a second examiner if requested by the patient or the patient's
counsel.
new text end

new text begin (f) The court may base its decision on relevant and admissible evidence, including
testimony of a treating physician or other qualified physician, a member of the patient's
treatment team, a court-appointed examiner, witness testimony, or the patient's medical
records.
new text end

new text begin (g) The court shall determine the necessity and reasonableness of electroconvulsive
therapy. The court shall balance the patient's need for treatment against the intrusiveness
of the prescribed treatment. The court must consider the following factors:
new text end

new text begin (1) the extent and duration of changes in the patient's behavior patterns and mental
activity affected by the treatment;
new text end

new text begin (2) the risks of adverse side effects;
new text end

new text begin (3) the experimental nature of the treatment;
new text end

new text begin (4) its acceptance by the medical community of this state;
new text end

new text begin (5) the extent of the intrusion into the patient's body and the pain connected with
the treatment; and
new text end

new text begin (6) the patient's ability to competently determine for the patient's self whether the
treatment is desirable.
new text end

new text begin (h) If the court finds the patient lacks capacity to give informed consent for
administration of electroconvulsive therapy and has applied the standards set forth in this
subdivision and subdivision 6, the court may authorize the treating facility to involuntarily
administer electroconvulsive therapy. A copy of the order must be given to the patient, the
patient's attorney, the treatment facility, and the facility's attorney before beginning the
course of electroconvulsive therapy treatment.
new text end

new text begin (i) A finding of lack of capacity under this section must not be construed to
determine the patient's competence for any other purpose.
new text end

new text begin (j) The standard of proof in proceedings pursuant to this section is clear and
convincing evidence.
new text end

new text begin Subd. 8. new text end

new text begin Duration of court order. new text end

new text begin A court order authorizing the administration
of electroconvulsive therapy pursuant to this section shall be effective for not more than
45 days. If the medical director or treating physician determines that another series of
electroconvulsive therapy is indicated at the end of the 45 days, and the person continues
to lack capacity, a new petition must be filed and a hearing must be held that meets the
requirements of subdivision 7.
new text end