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SF 55

as introduced - 92nd Legislature, 2021 1st Special Session (2021 - 2021) Posted on 06/22/2021 08:10am

KEY: stricken = removed, old language.
underscored = added, new language.

Current Version - as introduced

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A bill for an act
relating to civil commitment; banning involuntary electroconvulsive therapy;
amending Minnesota Statutes 2020, sections 253B.03, subdivisions 6, 6b, 6d;
524.5-313; repealing Minnesota Rules, part 9515.0700.

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

Section 1.

Minnesota Statutes 2020, section 253B.03, subdivision 6, is amended to read:


Subd. 6.

Consent for medical procedure.

(a) A patient has the right to give prior consent
to any medical or surgical treatment, other than treatment for chemical dependency or
nonintrusive treatment for mental illness.

new text begin (b) A court must not order a patient to be treated with electroconvulsive therapy without
the patient's informed written consent. If a patient objects to electroconvulsive therapy, a
court is not permitted to order the patient to be treated with electroconvulsive therapy.
new text end

deleted text begin (b)deleted text endnew text begin (c)new text end The following procedures shall be used to obtain consent for any treatment
necessary to preserve the life or health of any committed patient:

(1) the written, informed consent of a competent adult patient for the treatment is
sufficient;

(2) if the patient is subject to guardianship which includes the provision of medical care,
the written, informed consent of the guardian for the treatment is sufficientnew text begin, unless the
treatment is electroconvulsive therapy, in which case a guardian must not consent without
the informed written consent of the committed patient
new text end;

(3) if the head of the treatment facility or state-operated treatment program determines
that the patient is not competent to consent to the treatment and the patient has not been
adjudicated incompetent, written, informed consent for the surgery or medical treatment
shall be obtained from the person appointed the health care power of attorney, the patient's
agent under the health care directive, or the nearest proper relative. For this purpose, the
following persons are proper relatives, in the order listed: the patient's spouse, parent, adult
child, or adult sibling. If the nearest proper relatives cannot be located, refuse to consent to
the procedure, or are unable to consent, the head of the treatment facility or state-operated
treatment program or an interested person may petition the committing court for approval
for the treatment or may petition a court of competent jurisdiction for the appointment of a
guardian.new text begin However, a court must dismiss a petition requesting electroconvulsive therapy
from the head of the treatment facility or state-operated treatment program when the patient
has not given informed written consent to electroconvulsive therapy.
new text end The determination
that the patient is not competent, and the reasons for the determination, shall be documented
in the patient's clinical record;new text begin and
new text end

(4) consent to treatment of any minor patient shall be secured in accordance with sections
144.341 to 144.346. A minor 16 years of age or older may consent to hospitalization, routine
diagnostic evaluation, and emergency or short-term acute caredeleted text begin; anddeleted text endnew text begin.
new text end

deleted text begin (5) in the case of an emergency when the persons ordinarily qualified to give consent
cannot be located in sufficient time to address the emergency need, the head of the treatment
facility or state-operated treatment program may give consent.
deleted text end

deleted text begin (c)deleted text endnew text begin (d)new text end No person who consents to treatment pursuant to the provisions of this subdivision
shall be civilly or criminally liable for the performance or the manner of performing the
treatment. No person shall be liable for performing treatment without consent if written,
informed consent was given pursuant to this subdivision. This provision shall not affect any
other liability which may result from the manner in which the treatment is performed.

Sec. 2.

Minnesota Statutes 2020, section 253B.03, subdivision 6b, is amended to read:


Subd. 6b.

Consent for mental health treatment.

A competent patient admitted
voluntarily to a treatment facility or state-operated treatment program may be subjected to
intrusive mental health treatment only with the patient's written informed consent. For
purposes of this section, "intrusive mental health treatment" means electroconvulsive therapy
and neuroleptic medication and does not include treatment for a developmental disability.
An incompetent patient who has prepared a directive under subdivision 6d regarding intrusive
mental health treatment must be treated in accordance with this sectiondeleted text begin, except in cases of
emergencies
deleted text end.

Sec. 3.

Minnesota Statutes 2020, section 253B.03, subdivision 6d, is amended to read:


Subd. 6d.

Adult mental health treatment.

(a) A competent adult patient may make a
declaration of preferences or instructions regarding intrusive mental health treatment. These
preferences or instructions may include, but are not limited to, consent to or refusal of these
treatments. A declaration of preferences or instructions may include a health care directive
under chapter 145C or a psychiatric directive.

(b) A declaration may designate a proxy to make decisions about intrusive mental health
treatment. A proxy designated to make decisions about intrusive mental health treatments
and who agrees to serve as proxy may make decisions on behalf of a declarant consistent
with any desires the declarant expresses in the declaration.

(c) A declaration is effective only if it is signed by the declarant and two witnesses. The
witnesses must include a statement that they believe the declarant understands the nature
and significance of the declaration. A declaration becomes operative when it is delivered
to the declarant's physician, advanced practice registered nurse, or other mental health
treatment provider. The physician, advanced practice registered nurse, or provider must
comply with the declaration to the fullest extent possible, consistent with reasonable medical
practice, the availability of treatments requested, and applicable law. The physician, advanced
practice registered nurse, or provider shall continue to obtain the declarant's informed consent
to all intrusive mental health treatment decisions if the declarant is capable of informed
consent. A treatment provider must not require a patient to make a declaration under this
subdivision as a condition of receiving services.

(d) The physician, advanced practice registered nurse, or other provider shall make the
declaration a part of the declarant's medical record. If the physician, advanced practice
registered nurse, or other provider is unwilling at any time to comply with the declaration,
the physician, advanced practice registered nurse, or provider must promptly notify the
declarant and document the notification in the declarant's medical record. The physician,
advanced practice registered nurse, or provider deleted text beginmaydeleted text endnew text begin must notnew text end subject the declarant to intrusive
treatment in a manner contrary to the declarant's expressed wishesdeleted text begin, only if the declarant is
committed as a person who poses a risk of harm due to mental illness or as a person who
has a mental illness and is dangerous to the public and a court order authorizing the treatment
has been issued or an emergency has been declared under section 253B.092, subdivision 3
deleted text end.

(e) A declaration under this subdivision may be revoked in whole or in part at any time
and in any manner by the declarant if the declarant is competent at the time of revocation.
A revocation is effective when a competent declarant communicates the revocation to the
attending physician, advanced practice registered nurse, or other provider. The attending
physician, advanced practice registered nurse, or other provider shall note the revocation
as part of the declarant's medical record.

(f) A provider who administers intrusive mental health treatment according to and in
good faith reliance upon the validity of a declaration under this subdivision is held harmless
from any liability resulting from a subsequent finding of invalidity.

(g) In addition to making a declaration under this subdivision, a competent adult may
delegate parental powers under section 524.5-211 or may nominate a guardian under sections
524.5-101 to 524.5-502.

Sec. 4.

Minnesota Statutes 2020, section 524.5-313, is amended to read:


524.5-313 POWERS AND DUTIES OF GUARDIAN.

(a) A guardian shall be subject to the control and direction of the court at all times and
in all things.

(b) The court shall grant to a guardian only those powers necessary to provide for the
demonstrated needs of the person subject to guardianship.

(c) The court may appoint a guardian if it determines that all the powers and duties listed
in this section are needed to provide for the needs of the incapacitated person. The court
may also appoint a guardian if it determines that a guardian is needed to provide for the
needs of the incapacitated person through the exercise of some, but not all, of the powers
and duties listed in this section. The duties and powers of a guardian or those which the
court may grant to a guardian include, but are not limited to:

(1) the power to have custody of the person subject to guardianship and the power to
establish a place of abode within or outside the state, except as otherwise provided in this
clause. The person subject to guardianship or any interested person may petition the court
to prevent or to initiate a change in abode. A person subject to guardianship may not be
admitted to a regional treatment center by the guardian except:

(i) after a hearing under chapter 253B;

(ii) for outpatient services; or

(iii) for the purpose of receiving temporary care for a specific period of time not to
exceed 90 days in any calendar year;

(2) the duty to provide for the care, comfort, and maintenance needs of the person subject
to guardianship, including food, clothing, shelter, health care, social and recreational
requirements, and, whenever appropriate, training, education, and habilitation or
rehabilitation. The guardian has no duty to pay for these requirements out of personal funds.
Whenever possible and appropriate, the guardian should meet these requirements through
governmental benefits or services to which the person subject to guardianship is entitled,
rather than from the estate of the person subject to guardianship. Failure to satisfy the needs
and requirements of this clause shall be grounds for removal of a private guardian, but the
guardian shall have no personal or monetary liability;

(3) the duty to take reasonable care of the clothing, furniture, vehicles, and other personal
effects of the person subject to guardianship, and, if other property requires protection, the
power to seek appointment of a conservator of the estate. The guardian must give notice by
mail to interested persons prior to the disposition of the clothing, furniture, vehicles, or
other personal effects of the person subject to guardianship. The notice must inform the
person of the right to object to the disposition of the property within ten days of the date of
mailing and to petition the court for a review of the guardian's proposed actions. Notice of
the objection must be served by mail or personal service on the guardian and the person
subject to guardianship unless the person subject to guardianship is the objector. The guardian
served with notice of an objection to the disposition of the property may not dispose of the
property unless the court approves the disposition after a hearing;

(4)(i) the power to give any necessary consent to enable the person subject to guardianship
to receive necessary medical or other professional care, counsel, treatment, or service, except
that no guardian may give consent for psychosurgery, deleted text beginelectroshockdeleted text endnew text begin electroconvulsive therapynew text end,
sterilization, or experimental treatment of any kind unless new text beginthe incapacitated person gives
informed written consent to
new text endthe procedure deleted text beginis first approved by order of the court as provided
in this clause
deleted text end. The guardian shall not consent to any medical care for the person subject to
guardianship which violates the known conscientious, religious, or moral belief of the person
subject to guardianship;

(ii) a guardian who believes a procedure described in item (i) requiring prior court
approval to be necessary for the proper care of the person subject to guardianship, shall
petition the court for an order and, in the case of a public guardianship under chapter 252A,
obtain the written recommendation of the commissioner of human services. The court shall
fix the time and place for the hearing and shall give notice to the person subject to
guardianship in such manner as specified in section 524.5-308 and to interested persons.
The court shall appoint an attorney to represent the person subject to guardianship who is
not represented by counsel, provided that such appointment shall expire upon the expiration
of the appeal time for the order issued by the court under this section or the order dismissing
a petition, or upon such other time or event as the court may direct. In every case the court
shall determine if the procedure is in the best interest of the person subject to guardianship.
In making its determination, the court shall consider a written medical report which
specifically considers the medical risks of the procedure, whether alternative, less restrictive
methods of treatment could be used to protect the best interest of the person subject to
guardianship, and any recommendation of the commissioner of human services for a public
person subject to guardianship. The standard of proof is that of clear and convincing evidence;

(iii) in the case of a petition for sterilization of a person with developmental disabilities
subject to guardianship, the court shall appoint a licensed physician, a psychologist who is
qualified in the diagnosis and treatment of developmental disability, and a social worker
who is familiar with the social history and adjustment of the person subject to guardianship
or the case manager for the person subject to guardianship to examine or evaluate the person
subject to guardianship and to provide written reports to the court. The reports shall indicate
why sterilization is being proposed, whether sterilization is necessary and is the least intrusive
method for alleviating the problem presented, and whether it is in the best interest of the
person subject to guardianship. The medical report shall specifically consider the medical
risks of sterilization, the consequences of not performing the sterilization, and whether
alternative methods of contraception could be used to protect the best interest of the person
subject to guardianship;

(iv) any person subject to guardianship whose right to consent to a sterilization has not
been restricted under this section or section 252A.101 may be sterilized only if the person
subject to guardianship consents in writing or there is a sworn acknowledgment by an
interested person of a nonwritten consent by the person subject to guardianship. The consent
must certify that the person subject to guardianship has received a full explanation from a
physician or registered nurse of the nature and irreversible consequences of the sterilization;

(v) a guardian or the public guardian's designee who acts within the scope of authority
conferred by letters of guardianship under section 252A.101, subdivision 7, and according
to the standards established in this chapter or in chapter 252A shall not be civilly or criminally
liable for the provision of any necessary medical care, including, but not limited to, the
administration of psychotropic medication or the implementation of aversive and deprivation
procedures to which the guardian or the public guardian's designee has consented;

(5) in the event there is no duly appointed conservator of the estate of the person subject
to guardianship, the guardian shall have the power to approve or withhold approval of any
contract, except for necessities, which the person subject to guardianship may make or wish
to make;

(6) the duty and power to exercise supervisory authority over the person subject to
guardianship in a manner which limits civil rights and restricts personal freedom only to
the extent necessary to provide needed care and services. A guardian may not restrict the
ability of the person subject to guardianship to communicate, visit, or interact with others,
including receiving visitors or making or receiving telephone calls, personal mail, or
electronic communications including through social media, or participating in social activities,
unless the guardian has good cause to believe restriction is necessary because interaction
with the person poses a risk of significant physical, psychological, or financial harm to the
person subject to guardianship, and there is no other means to avoid such significant harm.
In all cases, the guardian shall provide written notice of the restrictions imposed to the court,
to the person subject to guardianship, and to the person subject to restrictions. The person
subject to guardianship or the person subject to restrictions may petition the court to remove
or modify the restrictions;

(7) if there is no acting conservator of the estate for the person subject to guardianship,
the guardian has the power to apply on behalf of the person subject to guardianship for any
assistance, services, or benefits available to the person subject to guardianship through any
unit of government;

(8) unless otherwise ordered by the court, the person subject to guardianship retains the
right to vote;

(9) the power to establish an ABLE account for a person subject to guardianship or
conservatorship. By this provision a guardian only has the authority to establish an ABLE
account, but may not administer the ABLE account in the guardian's capacity as guardian;
and

(10) if there is no conservator appointed for the person subject to guardianship, the
guardian has the duty and power to institute suit on behalf of the person subject to
guardianship and represent the person subject to guardianship in expungement proceedings,
harassment proceedings, and all civil court proceedings, including but not limited to
restraining orders, orders for protection, name changes, conciliation court, housing court,
family court, probate court, and juvenile court, provided that a guardian may not settle or
compromise any claim or debt owed to the estate without court approval.

Sec. 5. new text beginREPEALER.
new text end

new text begin Minnesota Rules, part 9515.0700, new text end new text begin is repealed.
new text end

APPENDIX

Repealed Minnesota Rule: 21-04273

9515.0700 HEARINGS.

Subpart 1.

Judicial authorization required.

If a court order is required to authorize electroconvulsive therapy, the state facility's medical director or the director's designee shall petition the district court in the county of commitment for an order authorizing the treatment. If the patient has a court-appointed guardian or conservator, the medical director shall ask the guardian or conservator to seek authority to consent to electroconvulsive therapy in the district court in which the guardianship or conservatorship was established. When necessary and appropriate for the patient's welfare, the petition may be filed in the county where the patient is present.

Subp. 2.

Contents of petition.

The petition shall state that consent is requested to administer electroconvulsive therapy, describe its purpose, recite the risks and effects of the procedure, and recite the findings of the medical director and treating physician as provided in parts 9515.0500 and 9515.0600.

The petition may request the appointment of a guardian ad litem to represent the patient's interests.

Subp. 3.

Copy of petition for agency.

A copy of the petition shall be supplied to the designated agency in the county of financial responsibility in advance of the hearing.

Subp. 4.

County attorney.

The medical director shall seek representation from the county attorney of the county in which the hearing is held. In the event the county attorney is unable to provide such representation, the medical director shall seek legal representation through the Department of Human Services.

Subp. 5.

Cost of hearing.

The cost of such hearings shall be met by the county financially responsible for the patient as specified by Minnesota Statutes, section 256D.18, subdivision 2.