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.