Minnesota Session Laws - 1991, Regular Session

  

                         Laws of Minnesota 1991 

                        CHAPTER 148-S.F.No. 187 
           An act relating to health; authorizing competent 
          persons to make advance declarations regarding mental 
          health treatment; requiring certain notices to be 
          given to the designated agency; changing the citation 
          of the adult health care decisions act and using the 
          term "living will"; amending Minnesota Statutes 1990, 
          sections 145B.01; 253B.03; 253B.18, subdivisions 4b 
          and 5; and 253B.19, subdivision 2.  
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
    Section 1.  Minnesota Statutes 1990, section 145B.01, is 
amended to read: 
    145B.01 [CITATION.] 
    This chapter may be cited as the "adult health care 
decisions act Minnesota living will act." 
    Sec. 2.  Minnesota Statutes 1990, section 253B.03, is 
amended to read: 
    253B.03 [RIGHTS OF PATIENTS.] 
    Subdivision 1.  [RESTRAINTS.] A patient has the right to be 
free from restraints.  Restraints shall not be applied to a 
patient unless the head of the treatment facility or a member of 
the medical staff determines that they are necessary for the 
safety of the patient or others.  Restraints shall not be 
applied to patients with mental retardation except as permitted 
under section 245.825 and rules of the commissioner of human 
services.  Consent must be obtained from the person or person's 
guardian except for emergency procedures as permitted under 
rules of the commissioner adopted under section 245.825.  Each 
use of a restraint and reason for it shall be made part of the 
clinical record of the patient under the signature of the head 
of the treatment facility.  
    Subd. 2.  [CORRESPONDENCE.] A patient has the right to 
correspond freely without censorship.  The head of the treatment 
facility may restrict correspondence on determining that the 
medical welfare of the patient requires it.  For patients in 
regional facilities, that determination may be reviewed by the 
commissioner.  Any limitation imposed on the exercise of a 
patient's correspondence rights and the reason for it shall be 
made a part of the clinical record of the patient.  Any 
communication which is not delivered to a patient shall be 
immediately returned to the sender.  
    Subd. 3.  [VISITORS AND PHONE CALLS.] Subject to the 
general rules of the treatment facility, a patient has the right 
to receive visitors and make phone calls.  The head of the 
treatment facility may restrict visits and phone calls on 
determining that the medical welfare of the patient requires 
it.  Any limitation imposed on the exercise of the patient's 
visitation and phone call rights and the reason for it shall be 
made a part of the clinical record of the patient.  
    Subd. 4.  [SPECIAL VISITATION; RELIGION.] A patient has the 
right to meet with or call a personal physician, spiritual 
advisor, and counsel at all reasonable times.  The patient has 
the right to continue the practice of religion.  
    Subd. 5.  [PERIODIC ASSESSMENT.] A patient has the right to 
periodic medical assessment.  The head of a treatment facility 
shall have the physical and mental condition of every patient 
assessed as frequently as necessary, but not less often than 
annually.  If a person is committed as mentally retarded for an 
indeterminate period of time, the three-year judicial review 
must include the annual reviews for each year as outlined in 
Minnesota Rules, part 9525.0075, subpart 6.  
    Subd. 6.  [CONSENT FOR MEDICAL PROCEDURE.] A patient has 
the right to prior consent to any medical or surgical treatment, 
other than the treatment of mental illness or for chemical 
dependency or nonintrusive treatment for mental illness.  A 
patient with mental retardation or the patient's guardian or 
conservator has the right to give or withhold consent before:  
    (1) the implementation of any aversive or deprivation 
procedure except for emergency procedures permitted in rules of 
the commissioner adopted under section 245.825; or 
    (2) the administration of psychotropic medication.  
    The following procedures shall be used to obtain consent 
for any treatment necessary to preserve the life or health of 
any committed patient:  
    (a) The written, informed consent of a competent adult 
patient for the treatment is sufficient.  
    (b) If the patient is subject to guardianship or 
conservatorship which includes the provision of medical care, 
the written, informed consent of the guardian or conservator for 
the treatment is sufficient.  
    (c) If the head of the treatment facility 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 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 or refuse to 
consent to the procedure, the head of the treatment facility 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 or conservator.  
The determination that the patient is not competent, and the 
reasons for the determination, shall be documented in the 
patient's clinical record.  
     (d) Consent to treatment of any minor patient shall be 
secured in accordance with sections 144.341 to 144.346, except 
that a minor 16 years of age or older may give valid consent for 
hospitalization, routine diagnostic evaluation, and emergency or 
short-term acute care.  
     (e) In the case of an emergency when the persons ordinarily 
qualified to give consent cannot be located, the head of the 
treatment facility may give consent.  
     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.  
    Subd. 6a.  [CONSENT FOR TREATMENT FOR MENTAL 
RETARDATION.] A patient with mental retardation, or the 
patient's guardian or conservator, has the right to give or 
withhold consent before:  
    (1) the implementation of any aversive or deprivation 
procedure except for emergency procedures permitted in rules of 
the commissioner adopted under section 245.825; or 
    (2) the administration of psychotropic medication.  
    Subd. 6b.  [CONSENT FOR MENTAL HEALTH TREATMENT.] A 
competent person admitted or committed to a treatment facility 
may be subjected to intrusive mental health treatment only with 
the person's written informed consent.  For purposes of this 
section, "intrusive mental health treatment" means electroshock 
therapy and neuroleptic medication and does not include 
treatment for mental retardation.  An incompetent person who has 
prepared a directive under subdivision 6d regarding treatment 
with intrusive therapies must be treated in accordance with this 
section, except in cases of emergencies. 
    Subd. 6a. 6c.  [ADMINISTRATION OF NEUROLEPTIC MEDICATIONS.] 
(a) Neuroleptic medications may be administered to persons 
committed as mentally ill or mentally ill and dangerous only as 
described in this subdivision. 
    (b) A neuroleptic medication may be administered to a 
patient who is competent to consent to neuroleptic medications 
if the patient has given written, informed consent to 
administration of the neuroleptic medication. 
    (c) A neuroleptic medication may be administered to a 
patient who is not competent to consent to neuroleptic 
medications if the patient, when competent, prepared a 
declaration under subdivision 6d requesting the treatment or 
authorizing a proxy to request the treatment or if a court 
approves the administration of the neuroleptic medication. 
    (d) A neuroleptic medication may be administered without 
court review to a patient who has not prepared a declaration 
under subdivision 6d and who is not competent to consent to 
neuroleptic medications if:  
    (1) the patient does not object to or refuse the 
medication; 
    (2) a guardian ad litem appointed by the court with 
authority to consent to neuroleptic medications gives written, 
informed consent to the administration of the neuroleptic 
medication; and 
    (3) a multidisciplinary treatment review panel composed of 
persons who are not engaged in providing direct care to the 
patient gives written approval to administration of the 
neuroleptic medication. 
     (e) A neuroleptic medication may be administered without 
judicial review and without consent in an emergency situation 
for so long as the emergency continues to exist if the treating 
physician determines that the medication is necessary to prevent 
serious, immediate physical harm to the patient or to others. 
The treatment facility shall document the emergency in the 
patient's medical record in specific behavioral terms. 
     (f) A person who consents to treatment pursuant to this 
subdivision is not civilly or criminally liable for the 
performance of or the manner of performing the treatment.  A 
person is not liable for performing treatment without consent if 
written, informed consent was given pursuant to this 
subdivision.  This provision does not affect any other liability 
that may result from the manner in which the treatment is 
performed. 
     (g) The court may allow and order paid to a guardian ad 
litem a reasonable fee for services provided under paragraph 
(c), or the court may appoint a volunteer guardian ad litem. 
     (h) A medical director or patient may petition the 
committing court, or the court to which venue has been 
transferred, for a hearing concerning the administration of 
neuroleptic medication.  A hearing may also be held pursuant to 
section 253B.08, 253B.09, 253B.12, or 253B.18.  The hearing 
concerning the administration of neuroleptic medication must be 
held within 14 days from the date of the filing of the 
petition.  The court may extend the time for hearing up to an 
additional 15 days for good cause shown. 
    Subd. 6d.  [ADULT MENTAL HEALTH TREATMENT.] (a) A competent 
adult 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. 
    (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 or 
other mental health treatment provider.  The physician or 
provider must comply with it to the fullest extent possible, 
consistent with reasonable medical practice, the availability of 
treatments requested, and applicable law.  The physician 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 may not require a person to make a declaration under 
this subdivision as a condition of receiving services. 
    (d) The physician or other provider shall make the 
declaration a part of the declarant's medical record.  If the 
physician or other provider is unwilling at any time to comply 
with the declaration, the physician or provider must promptly 
notify the declarant and document the notification in the 
declarant's medical record.  If the declarant has been committed 
as a patient under this chapter, the physician or provider may 
subject a declarant to intrusive treatment in a manner contrary 
to the declarant's expressed wishes, only upon order of the 
committing court.  If the declarant is not a committed patient 
under this chapter, the physician or provider may subject the 
declarant to intrusive treatment in a manner contrary to the 
declarant's expressed wishes, only if the declarant is committed 
as mentally ill or mentally ill and dangerous to the public and 
a court order authorizing the treatment has been issued. 
    (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 or other provider.  
The attending physician 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 524.5-505 or may nominate a guardian or 
conservator under section 525.544. 
     Subd. 7.  [PROGRAM PLAN.] A person receiving services under 
this chapter has the right to receive proper care and treatment, 
best adapted, according to contemporary professional standards, 
to rendering further custody, institutionalization, or other 
services unnecessary.  The treatment facility shall devise a 
written program plan for each person which describes in 
behavioral terms the case problems, the precise goals, including 
the expected period of time for treatment, and the specific 
measures to be employed.  Each plan shall be reviewed at least 
quarterly to determine progress toward the goals, and to modify 
the program plan as necessary.  The program plan shall be 
devised and reviewed with the designated agency and with the 
patient.  The clinical record shall reflect the program plan 
review.  If the designated agency or the patient does not 
participate in the planning and review, the clinical record 
shall include reasons for nonparticipation and the plans for 
future involvement.  The commissioner shall monitor the program 
plan and review process for regional centers to insure 
compliance with the provisions of this subdivision.  
     Subd. 8.  [MEDICAL RECORDS.] A patient has the right to 
access to personal medical records.  Notwithstanding the 
provisions of section 144.335, subdivision 2, every person 
subject to a proceeding or receiving services pursuant to this 
chapter shall have complete access to all medical records 
relevant to the person's commitment.  
    Subd. 9.  [RIGHT TO COUNSEL.] A patient has the right to be 
represented by counsel at any proceeding under this chapter.  
The court shall appoint counsel to represent the proposed 
patient if neither the proposed patient nor others provide 
counsel.  Counsel shall be appointed at the time a petition is 
filed pursuant to section 253B.07.  Counsel shall have the full 
right of subpoena.  In all proceedings under this chapter, 
counsel shall:  (1) consult with the person prior to any 
hearing; (2) be given adequate time to prepare for all hearings; 
(3) continue to represent the person throughout any proceedings 
under this charge unless released as counsel by the court; and 
(4) be a vigorous advocate on behalf of the client.  
     Subd. 10.  [NOTIFICATION.] All persons admitted or 
committed to a treatment facility shall be notified in writing 
of their rights under this chapter at the time of admission. 
     Sec. 3.  Minnesota Statutes 1990, section 253B.18, 
subdivision 4b, is amended to read: 
    Subd. 4b.  [PASS-ELIGIBLE STATUS; NOTIFICATION.] The 
following patients committed to the Minnesota security hospital 
shall not be placed on pass-eligible status unless that status 
has been approved by the medical director of the Minnesota 
security hospital:  
    (a) a patient who has been committed as mentally ill and 
dangerous and who 
    (1) was found incompetent to proceed to trial for a felony 
or was found not guilty by reason of mental illness of a felony 
immediately prior to the filing of the commitment petition; 
    (2) was convicted of a felony immediately prior to or 
during commitment as mentally ill and dangerous; or 
    (3) is subject to a commitment to the commissioner of 
corrections; and 
    (b) a patient who has been committed as a psychopathic 
personality, as defined in section 526.09.  
    At least ten days prior to a determination on the status, 
the medical director shall notify the committing court, the 
county attorney of the county of commitment, the designated 
agency, an interested person, the petitioner, and the 
petitioner's counsel of the proposed status, and their right to 
request review by the special review board.  If within ten days 
of receiving notice any notified person requests review by 
filing a notice of objection with the commissioner and the head 
of the treatment facility, a hearing shall be held before the 
special review board.  The proposed status shall not be 
implemented unless it receives a favorable recommendation by a 
majority of the board and approval by the commissioner.  The 
order of the commissioner is appealable as provided in section 
253B.19.  
     Nothing in this subdivision shall be construed to give a 
patient an affirmative right to seek pass-eligible status from 
the special review board.  
    Sec. 4.  Minnesota Statutes 1990, section 253B.18, 
subdivision 5, is amended to read: 
    Subd. 5.  [PETITION; NOTICE OF HEARING; ATTENDANCE; ORDER.] 
A petition for an order of transfer, discharge, provisional 
discharge, or revocation of provisional discharge shall be filed 
with the commissioner and may be filed by the patient or by the 
head of the treatment facility.  The special review board shall 
hold a hearing on each petition prior to making any 
recommendation.  Within 45 days of the filing of the petition, 
the committing court, the county attorney of the county of 
commitment, the designated agency, an interested person, the 
petitioner and petitioner's counsel shall be given written 
notice by the commissioner of the time and place of the hearing 
before the special review board.  Only those entitled to 
statutory notice of the hearing or those administratively 
required to attend may be present at the hearing.  The 
commissioner shall issue an order no later than 14 days after 
receiving the recommendation of the special review board.  A 
copy of the order shall be sent by certified mail to every 
person entitled to statutory notice of the hearing within five 
days after it is issued.  No order by the commissioner shall be 
effective sooner than 15 days after it is issued.  
    Sec. 5.  Minnesota Statutes 1990, section 253B.19, 
subdivision 2, is amended to read: 
    Subd. 2.  [PETITION; HEARING.] The committed person or the 
county attorney of the county from which a patient as mentally 
ill and dangerous to the public was committed may petition the 
appeal panel for a rehearing and reconsideration of a decision 
by the commissioner.  The petition shall be filed with the 
supreme court within 30 days after the decision of the 
commissioner.  The supreme court shall refer the petition to the 
chief judge of the appeal panel.  The chief judge shall notify 
the patient, the county attorney of the county of 
commitment, the designated agency, the commissioner, the head of 
the treatment facility, any interested person, and other persons 
the chief judge designates, of the time and place of the hearing 
on the petition.  The notice shall be given at least 14 days 
prior to the date of the hearing.  The hearing shall be within 
45 days of the filing of the petition.  Any person may oppose 
the petition.  The appeal panel may appoint examiners and may 
adjourn the hearing from time to time.  It shall hear and 
receive all relevant testimony and evidence and make a record of 
all proceedings.  The patient, patient's counsel, and the county 
attorney of the committing county may be present and present and 
cross-examine all witnesses. 
     Sec. 6.  [INSTRUCTION TO REVISOR.] 
    In Minnesota Statutes 1992 and subsequent editions of the 
statutes, the revisor of statutes shall change the term 
"declaration" to "living will" wherever that term appears in 
Minnesota Statutes, chapter 145B. 
    Presented to the governor May 20, 1991 
    Signed by the governor May 22, 1991, 5:51 p.m.