2007 Minnesota Statutes

253B.092 ADMINISTRATION OF NEUROLEPTIC MEDICATION.
    Subdivision 1. General. Neuroleptic medications may 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" includes a proposed patient who is
the subject of a petition for early intervention or commitment.
    Subd. 2. Administration without judicial review. Neuroleptic medications may be
administered without judicial review in the following circumstances:
(1) the patient has the capacity to make an informed decision under subdivision 4;
(2) the patient does not have the present capacity to consent to the administration of
neuroleptic medication, 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;
(3) a substitute decision-maker appointed by the court consents to the administration of the
neuroleptic medication and the patient does not refuse administration of the medication; or
(4) the substitute decision-maker does not consent or the patient is refusing medication,
and the patient is in an emergency situation.
    Subd. 3. Emergency administration. A treating physician may administer neuroleptic
medication to a patient who does not have capacity to make a decision regarding administration of
the medication if the patient is in an emergency situation. Medication may be administered for so
long as the emergency continues to exist, up to 14 days, if the treating physician determines that
the medication is necessary to prevent serious, immediate physical harm to the patient or to others.
If a request for authorization to administer medication is made to the court within the 14 days,
the treating physician may continue the medication through the date of the first court hearing,
if the emergency continues to exist. If the request for authorization to administer medication is
made to the court in conjunction with a petition for commitment or early intervention and the
court makes a determination at the preliminary hearing under section 253B.07, subdivision 7,
that there is sufficient cause to continue the physician's order until the hearing under section
253B.08, the treating physician may continue the medication until that hearing, if the emergency
continues to exist. The treatment facility shall document the emergency in the patient's medical
record in specific behavioral terms.
    Subd. 4. Patients with capacity to make informed decision. A patient who has the
capacity to make an informed decision regarding the administration of neuroleptic medication
may consent or refuse consent to administration of the medication. The informed consent of a
patient must be in writing.
    Subd. 5. Determination of capacity. (a) A patient is presumed to have capacity to make
decisions regarding administration of neuroleptic medication.
(b) In determining a person's capacity to make decisions regarding the administration of
neuroleptic medication, the court shall consider:
(1) whether the person demonstrates an awareness of the nature of the person's situation,
including the reasons for hospitalization, and the possible consequences of refusing treatment
with neuroleptic medications;
(2) whether the person demonstrates an understanding of treatment with neuroleptic
medications and the risks, benefits, and alternatives; and
(3) whether the person communicates verbally or nonverbally a clear choice regarding
treatment with neuroleptic medications that is a reasoned one not based on delusion, even though
it may not be in the person's best interests.
Disagreement with the physician's recommendation is not evidence of an unreasonable
decision.
    Subd. 6. Patients without capacity to make informed decision; substitute decision-maker.
(a) Upon request of any person, and upon a showing that administration of neuroleptic medications
may be recommended and that the person may lack capacity to make decisions regarding the
administration of neuroleptic medication, the court shall appoint a substitute decision-maker with
authority to consent to the administration of neuroleptic medication as provided in this section. A
hearing is not required for an appointment under this paragraph. The substitute decision-maker
must be an individual or a community or institutional multidisciplinary panel designated by the
local mental health authority. In appointing a substitute decision-maker, the court shall give
preference to a guardian or conservator, proxy, or health care agent with authority to make health
care decisions for the patient. The court may provide for the payment of a reasonable fee to the
substitute decision-maker for services under this section or may appoint a volunteer.
(b) If the person's treating physician recommends treatment with neuroleptic medication, the
substitute decision-maker may give or withhold consent to the administration of the medication,
based on the standards under subdivision 7. If the substitute decision-maker gives informed
consent to the treatment and the person does not refuse, the substitute decision-maker shall
provide written consent to the treating physician and the medication may be administered. The
substitute decision-maker shall also notify the court that consent has been given. If the substitute
decision-maker refuses or withdraws consent or the person refuses the medication, neuroleptic
medication may not be administered to the person without a court order or in an emergency.
(c) A substitute decision-maker appointed under this section has access to the relevant
sections of the patient's health records on the past or present administration of medication. The
designated agency or a person involved in the patient's physical or mental health care may disclose
information to the substitute decision-maker for the sole purpose of performing the responsibilities
under this section. The substitute decision-maker may not disclose health records obtained under
this paragraph except to the extent necessary to carry out the duties under this section.
(d) At a hearing under section 253B.08, the petitioner has the burden of proving incapacity
by a preponderance of the evidence. If a substitute decision-maker has been appointed by the
court, the court shall make findings regarding the patient's capacity to make decisions regarding
the administration of neuroleptic medications and affirm or reverse its appointment of a substitute
decision-maker. If the court affirms the appointment of the substitute decision-maker, and if the
substitute decision-maker has consented to the administration of the medication and the patient
has not refused, the court shall make findings that the substitute decision-maker has consented
and the treatment is authorized. If a substitute decision-maker has not yet been appointed, upon
request the court shall make findings regarding the patient's capacity and appoint a substitute
decision-maker if appropriate.
(e) If an order for civil commitment or early intervention did not provide for the appointment
of a substitute decision-maker or for the administration of neuroleptic medication, the treatment
facility may later request the appointment of a substitute decision-maker upon a showing that
administration of neuroleptic medications is recommended and that the person lacks capacity to
make decisions regarding the administration of neuroleptic medications. A hearing is not required
in order to administer the neuroleptic medication unless requested under subdivision 10 or if the
substitute decision-maker withholds or refuses consent or the person refuses the medication.
(f) The substitute decision-maker's authority to consent to treatment lasts for the duration of
the court's order of appointment or until modified by the court.
If the substitute decision-maker withdraws consent or the patient refuses consent, neuroleptic
medication may not be administered without a court order.
(g) If there is no hearing after the preliminary hearing, then the court shall, upon the request
of any interested party, review the reasonableness of the substitute decision-maker's decision
based on the standards under subdivision 7. The court shall enter an order upholding or reversing
the decision within seven days.
    Subd. 7. When person lacks capacity to make decisions about medication. (a) When a
person lacks capacity to make decisions regarding the administration of neuroleptic medication,
the substitute decision-maker or the court shall use the standards in this subdivision in making a
decision regarding administration of the medication.
(b) If the person clearly stated what the person would choose to do in this situation when
the person had the capacity to make a reasoned decision, the person's wishes must be followed.
Evidence of the person's wishes may include written instruments, including a durable power of
attorney for health care under chapter 145C or a declaration under section 253B.03, subdivision
6d .
(c) If evidence of the person's wishes regarding the administration of neuroleptic medications
is conflicting or lacking, the decision must be based on what a reasonable person would do,
taking into consideration:
(1) the person's family, community, moral, religious, and social values;
(2) the medical risks, benefits, and alternatives to the proposed treatment;
(3) past efficacy and any extenuating circumstances of past use of neuroleptic medications;
and
(4) any other relevant factors.
    Subd. 8. Procedure when patient refuses medication. (a) If the substitute decision-maker
or the patient refuses to consent to treatment with neuroleptic medications, and absent an
emergency as set forth in subdivision 3, neuroleptic medications may 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.
(b) 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 neuroleptic medication. The patient is entitled to
counsel and a second examiner, if requested by the patient or patient's counsel.
(c) The court may base its decision on relevant and admissible evidence, including the
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.
(d) If the court finds that the patient has the capacity to decide whether to take neuroleptic
medication or that the patient lacks capacity to decide and the standards for making a decision
to administer the medications under subdivision 7 are not met, the treating facility may not
administer medication without the patient's informed written consent or without the declaration of
an emergency, or until further review by the court.
(e) If the court finds that the patient lacks capacity to decide whether to take neuroleptic
medication and has applied the standards set forth in subdivision 7, the court may authorize
the treating facility and any other community or treatment facility to which the patient may be
transferred or provisionally discharged, to involuntarily administer the medication to the patient.
A copy of the order must be given to the patient, the patient's attorney, the county attorney, and
the treatment facility. The treatment facility may not begin administration of the neuroleptic
medication until it notifies the patient of the court's order authorizing the treatment.
(f) A finding of lack of capacity under this section must not be construed to determine the
patient's competence for any other purpose.
(g) The court may authorize the administration of neuroleptic medication until the
termination of a determinate commitment. If the patient is committed for an indeterminate period,
the court may authorize treatment of neuroleptic medication for not more than two years, subject
to the patient's right to petition the court for review of the order. The treatment facility must submit
annual reports to the court, which shall provide copies to the patient and the respective attorneys.
(h) The court may limit the maximum dosage of neuroleptic medication that may be
administered.
(i) If physical force is required to administer the neuroleptic medication, force may only take
place in a treatment facility or therapeutic setting where the person's condition can be reassessed
and appropriate medical staff are available.
    Subd. 9. Immunity. A substitute decision-maker who consents to treatment 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 the substitute decision-maker has given
written consent. This provision does not affect any other liability that may result from the manner
in which the treatment is performed.
    Subd. 10. Review. A patient or other person may petition the court under section 253B.17 for
review of any determination under this section or for a decision regarding the administration of
neuroleptic medications, appointment of a substitute decision-maker, or the patient's capacity to
make decisions regarding administration of neuroleptic medications.
History: 1997 c 217 art 1 s 60; 1998 c 313 s 8,9; 1998 c 399 s 30,31