No. 39872 (New Rule): Rule R523-8. Medication, Psychosurgery and Electroshock Procedures for Children, Consumer Rights, Due Process, Family Involvement

(New Rule)

DAR File No.: 39872
Filed: 10/27/2015 01:05:24 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

This rule establishes establishes due process procedures for psychiatric treatment for children. It also provides guidance on family involvement, and consumer rights. (DAR NOTE: The proposed repeal is of Rule R523-6 under DAR No. 39871 in this issue, November 15, 2015, of the Bulletin.)

Summary of the rule or change:

The purpose of this rule is to provide: 1) guidance on medication procedures for children; 2) guidance on psychosurgery and electroshock therapy procedures for children; 3) guidance on family involvement; and 4) guidance on consumer rights.

State statutory or constitutional authorization for this rule:

• Section 62A-15-704
• Section 62A-15-105
• Subsection 62A-15-703(3)

Anticipated cost or savings to:

the state budget:

There is no aggregate anticipated cost or savings to the state budget because this rule replaces a repealed rule, R523-6, that was repealed in order to clarify guidance, correct typographical errors, remove unnecessary text, and reorganize the numbering system of the division's rules.

local governments:

There is no aggregate anticipated cost or savings to a local government because this rule replaces a repealed rule, R523-6, that was repealed in order to clarify guidance, correct typographical errors, remove unnecessary text, and reorganize the numbering system of the division's rules.

small businesses:

There is no aggregate anticipated cost or savings to small businesses because this rule replaces a repealed rule, R523-6, that was repealed in order to clarify guidance, correct typographical errors, remove unnecessary text, and reorganize the numbering system of the division's rules.

persons other than small businesses, businesses, or local governmental entities:

There is no aggregate anticipated cost or savings to persons other than small businesses, businesses, or local government entities because this rule replaces a repealed rule, R523-6, that was repealed in order to clarify guidance, correct typographical errors, remove unnecessary text, and reorganize the numbering system of the division's rules.

Compliance costs for affected persons:

There is no compliance costs for affected persons because this rule replaces a repealed rule, R523-6, that was repealed in order to clarify guidance, correct typographical errors, remove unnecessary text, and reorganize the numbering system of the division's rules.

Comments by the department head on the fiscal impact the rule may have on businesses:

There is no fiscal impact on businesses because this rule replaces a repealed rule, R523-6, that was repealed in order to clarify guidance, correct typographical errors, remove unnecessary text, and reorganize the numbering system of the division's rules.

Ann Silverberg Williamson, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Human Services
Substance Abuse and Mental Health
195 N 1950 W
SALT LAKE CITY, UT 84116

Direct questions regarding this rule to:

• Julene Robbins at the above address, by phone at 801-538-4521, by FAX at 801-538-3942, or by Internet E-mail at [e-mail]
• L Ray Winger at the above address, by phone at 801-538-4319, by FAX at 801-538-9892, or by Internet E-mail at [e-mail]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

12/15/2015

This rule may become effective on:

12/22/2015

Authorized by:

Doug Thomas, Director

RULE TEXT

R523. Human Services, Substance Abuse and Mental Health.

R523-8. Medication, Psychosurgery and Electroshock Procedures for Children, Consumer Rights, Due Process, Family Involvement.

R523-8-1. Authority.

This rule is promulgated under authority of Section 62A-15-105.

 

R523-8-2. Purpose.

(1) The purpose of this rule is to provide:

(a) Guidance on medication procedures for children.

(b) Guidance on Psychosurgery and Electroshock Therapy Procedures for Children.

(c) Guidance on Family Involvement.

(d) Guidance on Consumer Rights.

 

R523-8-3. Definitions.

(1) For the purposes of this administrative rule, "guardian" means a parent, and/or legal guardian, and/or legal custodian.

(2) Neutral and Detached Fact Finder is as defined in Subsection 62A-15-703(3).

(3) The "Division" is the Division of Substance Abuse and Mental Health (Division)

(4) "Antipsychotic medication" means any antipsychotic agent usually and customarily prescribed and administered in the chemical treatment of psychosis.

(5) A "legal custodian" is one who has been appointed by the Juvenile Court and may include the Division of Child and Family Services, the Division of Juvenile Justice Services, and the Division of Substance Abuse and Mental Health.

(6) A "legal guardian" is one who is appointed by a testamentary appointment or by a court of law.

 

R523-8-4. Medication Procedures for Children, Legal Authority.

(1) The Division hereby establishes due process procedures for children prior to the administration of antipsychotic medication.

(a) This policy applies to persons under the age of 18 who are committed to the physical custody of a local mental health authority and/or committed to the legal custody of the Division.

(b) A person under the age of 18 may be treated with antipsychotic medication when, as provided in this section, any one or more of the following exist:

(i) The child and guardian give consent.

(ii) The child or the guardian does not give consent, but a Designated Examiner determines that antipsychotic medication is an appropriate treatment through a due process proceeding as described in Section 62A-15-704.

(iii) The medication is necessary in order to control the child's dangerous behavior and it is administered for an exigent circumstance according to Subsection R523-8-4(1)(f) below.

(c) A local mental health authority has the obligation to provide a child and guardian with the following information when recommending that the child be treated with antipsychotic medications:

(i) The nature of the child's mental illness.

(ii) The recommended medication treatment, its purpose, the method of administration, and dosage recommendations.

(iii) The desired beneficial effects on the child's mental illness as a result of the recommended treatment.

(iv) The possible or probable mental health consequences to the child if recommended treatment is not administered.

(v) The possible side effects, if any, of the recommended treatment.

(vi) The ability of the staff to recognize any side effects which may actually occur and the possibility of ameliorating or abating those side effects.

(vii) The possible, if any, alternative treatments available and whether those treatments are advisable.

(viii) The right to give or withhold consent for the proposed medication treatment.

(ix) When informing a child and their guardian that they have the right to withhold consent the staff must inform them that the mental health authority has the right to initiate a medication hearing and have a designated examiner determine whether the proposed treatment is necessary.

(d) The child and guardian shall then be afforded an opportunity to sign a consent form stating that they have received the information under Subsection R523-8-4(1)(c), and that they consent to the proposed medication treatment.

(e) If either the child or guardian refuses to give consent, the mental health authority may initiate a medication hearing in accordance with Subsection R523-8-4(1)(g).

(f) Antipsychotic medication may be administered under the following exigent circumstances:

(i) A qualified physician has determined and certifies that they believe the child is likely to cause injury to themselves or to others if not immediately treated. That certification shall be recorded in the Physician's Orders of the child's medical record and shall contain at least the following information:

(A) A statement by the physician that they believe the child is likely to cause injury to themselves or others if not immediately restrained and provided medication treatment.

(B) The basis for that belief, including a statement of the child's behaviors.

(C) The medication administered.

(D) The date and time the medication was begun.

(g) Involuntary treatment in exigent circumstances may be continued for 48 hours, excluding Saturdays, Sundays, and legal holidays. At the expiration of that time period, the child shall not be involuntarily treated unless a Notice to Convene a Medication Hearing has been prepared and provided to the child pursuant to the provision of Subsection R523-8-4(1)(h).

(h) If the child or guardian refuse to give consent the treating staff may request a medication hearing be held to determine if medication treatment is appropriate.

(i) The treating physician shall document in the child's medical record, the child's diagnosis, the recommended treatment, the possible side effects of such treatment, the desired benefit of such treatment, and the prognosis.

(ii) The treating staff shall complete a Request to Convene a Medication Hearing form and submit it to the Director/Designee of the local mental health authority who will contact a Neutral and Detached Fact Finder and set a date and time for the hearing. The child and guardian shall be provided notice of the medication hearing and the hearing shall be set as soon as reasonably possible after a request has been made, but no sooner than 24 hours of notification being provided to the child and guardian.

(iii) Prior to the hearing, the Neutral and Detached Fact Finder is provided documentation regarding the child's mental condition, including the child's medical records, physician's orders, diagnosis, nursing notes, and any other pertinent information.

(i) Medication hearings shall be conducted by a Neutral and Detached Fact Finder, shall be heard where the child is currently being treated, and shall be conducted in an informal, non-adversarial manner as to not have a harmful effect upon the child.

(i) The child has the right to attend the hearing, have an adult informant (guardian /foster parent, etc.) present, and to ask pertinent questions. Other persons may attend the hearing if appropriate.

(ii) The Neutral and Detached Fact Finder shall begin each medication hearing by explaining the purpose and procedure of the hearing to the child, guardian, and any other persons present.

(iii) The Neutral and Detached Fact Finder will review the child's current condition and recommended course of treatment.

(iv) The child, guardian, and others present shall then be afforded an opportunity to comment on the issue of medication treatment.

(v) Following the review of the case and hearing of comments, the Neutral and Detached Fact Finder shall render a decision.

(vi) If needed, the Neutral and Detached Fact Finder may ask everyone to leave the room to allow them time to deliberate.

(j) The Neutral and Detached Fact Finder may order medication treatment of a child if, after consideration of the record and deliberation, the Neutral and Detached Fact Finder finds that the following conditions exist:

(i) The child has a mental illness; and

(ii) The child is gravely disabled and in need of medication treatment for the reason that they suffer from a mental illness such that they (a) are in danger of serious physical harm resulting from a failure to provide for their essential human needs of health or safety, or (b) manifest severe deterioration in routine functioning evidenced by repeated and escalating loss of cognitive or volitional control over their actions and is not receiving such care as is essential for their health safety; and/or

(iii) Without medication treatment, the child poses a likelihood of serious harm to themselves, others, or their property. Likelihood of serious harm means either (a) substantial risk that physical harm will be inflicted by an individual upon their own person, as evidenced by threats or attempts to commit suicide or inflict physical harm on one's own self, or (b) a substantial risk that physical harm will be inflicted by an individual upon another, as evidenced by behavior which has caused such harm or which placed another person or persons in reasonable fear of sustaining such harm, or (c) a substantial risk that physical harm will be inflicted by an individual upon the property of others, as evidenced by behavior which has caused substantial loss or damage to the property of others; and

(iv) The proposed medication treatment is in the medical best interest of the patient, taking into account the possible side effects as well as the potential benefits of the treatment; and

(v) The proposed medication treatment is in accordance with prevailing standards of accepted medical practice.

(k) The basis for the decision is supported by adequate documentation. The Neutral and Detached Fact Finder shall complete and sign a Medication Hearing form at the end of the hearing. A copy shall be provided to the child and/or guardian.

(l) A child or guardian may appeal the decision of a Neutral and Detached Fact Finder according to the following process, by submitting a written appeal to the Director/Designee of the Local Mental Health Authority providing treatment to the child, within 24 hours (excluding Saturdays, Sundays, and legal holidays) of the initial hearing.

(i) Upon receipt of the appeal, a panel consisting of two physicians and a non-physician licensed professional (RN, LCSW, PhD, etc.) shall be assigned to hear the appeal.

(ii) The panel shall review the available documentation and make a decision within 48 hours (excluding Saturdays, Sundays, and legal holidays) of the date of the appeal.

(iii) A written decision from the panel shall be provided to the child, the child's guardian, the local mental health authority providing treatment to the child, and any other appropriate party.

(m) In the event that a significant medication change is proposed, the child and/or guardian shall be provided an opportunity to give consent in accordance to Subsection R523-8-4(1)(c) of this section. If the child and guardian refuse to give consent, a medication hearing may be initiated in according with Subsection R523-8-4(1)(h) of this section.

(n) Medication treatment ordered pursuant to Subsection R523-8-4(1)(h) of this section may continue after the initial hearing according to the following process:

(i) A Neutral and Detached Fact Finder shall review the case within 180 days of the initial hearing.

(ii) The Neutral and Detached Fact Finder shall review the medical record before rendering a decision to continue medication treatment.

(iii) The Neutral and Detached Fact Finder may order continued medication treatment if they find the following conditions are met:

(A) The child is still mentally ill; and

(B) Absent continued medication treatment, the child will suffer severe and abnormal mental and emotional distress as indicated by recent past history, and will experience deterioration in their ability to function in the least restrictive environment, thereby making them a substantial danger to themselves or others, and

(C) The medication treatment is in the medical best interest of the patient, taking into account the possible side effects as well as the potential benefits of the treatment; and

(D) The medication treatment is in accordance with prevailing standards of accepted medical practice.

(iv) If the neutral and Detached Fact Finder approves continued medication treatment, they shall complete a Review of Continued Medication form, which shall be placed in the child's medical record. A copy shall be provided to the child and/or guardian.

(v) At the end of 12 months, the case shall again be reviewed as outlined in this Subsection R523-8-4(1)(n), and shall be reviewed every 6 months while the course of treatment is being administered.

 

R523-8-5. Psychosurgery and Electroshock Therapy Procedures for Children, Legal Authority.

(1) By this rule, the Division establishes the following due process procedure for children prior to their being administered psychosurgery or electroshock therapy.

(a) This policy applies to persons under the age of 18 who are committed to the physical custody of a local mental health authority or committed to the legal custody of the Division. The following terms are herein defined:

(b) "ECT" means electroconvulsive therapy.

(c) "Psychosurgery" means a neurosurgical intervention to modify the brain to reduce the symptoms of a severely ill psychiatric patient.

(d) A local mental health authority has the obligation to provide a child and guardian with the following information when recommending that the child be treated with ECT or Psychosurgery:

(i) The nature of the child's mental illness;

(ii) The recommended ECT/Psychosurgery treatment, its purpose, the method of administration, and recommended length of time for treatment;

(iii) The desired beneficial effects on the child's mental illness as a result of the recommended treatment;

(iv) The possible or probable mental health consequences to the child if recommended treatment is not administered;

(v) The possible side effects, if any, of the recommended treatment;

(vi) The ability of the staff to recognize any side effects, should any actually occur, and the possibility of ameliorating or abating those side effects;

(vii) The possible, if any, alternative treatments available and whether those treatments are advisable;

(viii) The right to give or withhold consent for the proposed ECT/psychosurgery; and

(ix) When informing a child and their guardian they have the right to withhold consent, the local mental health authority shall inform them that regardless of whether they give or withhold consent, a due process procedure will be conducted before two Neutral and Detached Fact Finders to determine the appropriateness of such treatment.

(e) The child and guardian shall then be afforded an opportunity to sign a consent form stating that they have received the information listed in Subsection R523-8-5(1)(d) of this section, and that they consent or do not consent to the proposed treatment.

(f) If the guardian refuses to consent to ECT/psychosurgery, the local mental health authority shall consider a treatment team dispositional review to determine whether the child is appropriate for treatment through their services.

(g) Regardless of whether the child or guardian agrees or disagrees with the proposed ECT/psychosurgery, a due process procedure shall be conducted before the treatment can be administered.

(h) A physician shall request ECT or psychosurgery for a child by completing a Request to Treat With ECT or Psychosurgery form and submitting to the Director/Designee of the Local Mental Health Authority providing treatment.

(i) Upon receipt of the request, the Director/Designee shall contact two Neutral and Detached Fact Finders, one of which must be a physician, and set a date and time for an ECT/Psychosurgery Hearing.

(j) The child and guardian shall be provided notice of the hearing.

(k) Prior to the hearing, the two designated examiners shall be provided documentation regarding the child's mental condition, including the child's medical records, physician's orders, diagnosis, nursing notes, and any other pertinent information. The attending physician shall document their proposed course of treatment and reason(s) justifying the proposal in the medical record.

(l) ECT/psychosurgery hearings shall be conducted by two Designated Examiners, one of whom is a physician, Hearings shall be held where the child is currently being treated, and shall be conducted in an informal, non-adversarial manner as to not have a harmful effect upon the child.

(i) The child has the right to attend the hearing, have an adult informant (guardian /foster parent, etc.) present, and to ask pertinent questions.

(ii) If the child or others become disruptive during the hearing, the two Neutral and Detached Fact Finders may request that those persons be removed. The hearing shall continue in that person's absence.

(iii) The hearing shall begin with the child, guardian, and any others being informed of the purpose and procedure of the hearing.

(iv) The record shall be reviewed by the Neutral and Detached Fact Finders and the proposed treatment shall be discussed.

(v) The child, guardian, and others present shall be afforded an opportunity to comment on the issue of ECT or psychosurgery.

(vi) Following the review of the case and the hearing of comments, the two Neutral and Detached Fact Finders shall render a decision

(vii) If needed the two Neutral and Detached Fact Finders may ask everyone to leave the room to allow them time to deliberate.

(m) The Designated Examiners may order ECT or psychosurgery if, after consideration of the record and deliberation, they both find that the following conditions exist:

(i) The child has a mental illness as defined in the current edition of the Diagnostic and Statistical Manual of the American Psychiatric Association (DSM); and

(ii) The child is gravely disabled and in need of ECT or Psychosurgery for the reason that he/she suffers from a mental illness such that they (a) are in danger of serious physical harm resulting from a failure to provide for his essential human needs of health or safety, or (b) manifests severe deterioration in routine functioning evidenced by repeated and escalating loss of cognitive or volitional control over their actions and is not receiving such care as is essential for their health safety; and/or

(iii) Without ECT or psychosurgery, the child poses a likelihood of serious harm to self, others, or property. Likelihood of serious harm means either:

(A) substantial risk that physical harm will be inflicted by an individual upon their own person, as evidenced by threats or attempts to commit suicide or inflict physical harm on one's own self, or

(B) a substantial risk that physical harm will be inflicted by an individual upon another, as evidenced by behavior which has caused such harm or which has placed another person or persons in reasonable fear of sustaining such harm, or

(C) a substantial risk that physical harm will be inflicted by an individual upon the property of others, as evidenced by behavior which has caused substantial loss or damage to the property of others; and

(iv) The proposed treatment is an appropriate and accepted method of treatment for the patient's mental condition; and

(v) The proposed medication treatment is in accordance with prevailing standards of accepted medical practice.

(n) The basis for the decision shall be supported by adequate documentation. The Neutral and Detached Fact Finders shall complete and sign an ECT or Psychosurgery form at the end of the hearing. A copy of the decision shall be provided to the child and/or guardian.

(o) The child and/or guardian may request a second opinion of a decision to treat with ECT or psychosurgery by filing a Request for a Second Opinion form with the Director/designee of the Division within 24 hours (excluding Saturdays, Sundays, and legal holidays) of the initial hearing.

(p) ECT or psychosurgery may be commenced within 48 hours of the decision by the Neutral and Detached Fact Finders, if no request for a second opinion is made. If a request is made, treatment may be commenced as soon as the Director/designee physician renders their affirmative decision.

(q) Upon receipt of a Request, the Director/designee will review the record, consult with whomever he/she believes is necessary, and render a decision within 48 hours (excluding Saturdays, Sundays, and legal holidays) of receipt of the Request. The Director/designee shall sign a Second Opinion for Decision to Treat with ECT/Psychosurgery form which is placed in the child's record. A copy shall be provided to the child and the guardian prior to the commencement of treatment.

(r) If a child has been receiving ECT treatment and requires further treatment than that outlined in the original ECT plan, the procedures set forth in R523-8-5(1)(d) through (q) shall be followed before initiating further treatment.

 

R523-8-6. Family Involvement.

(1) Each mental health authority shall annually prepare and submit to the Division a plan for mental health funding and service delivery. Included in the plan shall be a method to educate families concerning mental illness and substance use disorders to promote family involvement when appropriate, and with patient consent, in the services of a family member.

(2) The Division will monitor for compliance as part of the annual quality of care site visits.

 

R523-8-7. Consumers Rights.

(1) Each LMHA and LSAA shall have a written statement reflecting consumers rights. General areas for consideration should be:

(a) Consumer involvement in treatment planning.

(b) Consumer involvement in selection of their primary therapist.

(c) Consumer access to their individual treatment records.

(d) Informed consent regarding medication

(e) Grievance procedures

(2) This statement should also indicate the LMHA/LSAA's commitment to always treat the consumers with dignity and individuality in a positive, supportive and empowering manner. This document is to be shared with the consumer at the time of intake and a signed copy made part of their individual file. The Division shall periodically review this process to assure appropriate content within the rights statement and proper application of the intent of this policy.

 

R523-8-8. Declaration for Mental Health Treatment.

(1) The Division will make available information concerning the declaration for mental health treatment. Included will be information concerning available assistance in completing the document.

(2) Each LMHA shall have information concerning declarations for mental health treatment. Information will be distributed with consumer rights information at the time of intake.

(3) Utah State Hospital will provide information concerning the declaration for mental health treatment at the time of admittance to the hospital.

(4) Consumers who choose to complete a declaration for mental health treatment may deliver a copy to their mental health therapist, to be included as part of their medical record.

 

KEY: forced medication hearings and treatment procedures for children, due process, family involvement, consumer rights

Date of Enactment or Last Substantive Amendment: 2015

Authorizing, Implemented or Interpreted Law: 62A-15-105; 62A-15-703(3); 62A-15-704

 

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