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Rights in Outpatients Settings - III- Informed Consent to Treatment

A. Recipients and their legally responsible parents, guardians or custodians have the right to informed consent for all treatment.

B. Statement of purpose. This rule has the following purposes:

  1. To promote respect for individual autonomy and recipient participation in decision-making;
  2. To ensure that, whenever possible, the informed consent of a recipient or his or her legally responsible parent, custodian or guardian is obtained prior to treatment;
  3. To avoid, whenever possible, forcible imposition of any treatment;
  4. To provide reasonable standards and procedural mechanisms for determining when to treat a recipient absent his or her informed consent, consistent with applicable law; and
  5. To ensure that the recipient is fully protected against the unwarranted exercise of the state's parens patriae power.

C. Treatment of recipients. All recipients with unimpaired capacity have the right to consent to or to refuse treatment, absent an emergency. Treatment may be provided to a recipient only when:

  1. Informed consent for such treatment has been obtained from the recipient in the following circumstances:
    1. The recipient has been living separately from parents or legal guardians for at least 60 days and is independent of parental or legal guardian support;
    2. The recipient is or was legally married;
    3. The recipient is or was a member of the Armed Forces of the United States; or
    4. The recipient has been emancipated by the court pursuant to 1 5 M.R.S.A. s 3506-A; and
    5. The recipient is clinically competent.
  2. The recipient is an unemancipated minor, or clinically incapacitated minor and the informed consent of the legally responsible parent, custodian or guardian has been obtained; or
  3. The recipient is 14 or over, the treatment is psychotropic medication, and the informed consent of the recipient and the legally responsible parents, guardians or custodians has been obtained.

D. Informed consent to treatment. Informed consent to treatment is obtained only if the recipient, under C(1-3) above, or the legally responsible parent, custodian or guardian possess capacity to make a reasoned decision regarding the treatment; and the recipient under C(1-3) above, and his or her legally responsible parent, custodian or guardian is provided with adequate information concerning the treatment; and the recipient, under C(1-3) above and his or her legally responsible parent, custodian or guardian makes a voluntary choice in favor of the treatment. Informed consent must be documented in each case in accordance with this section.

  1. Capacity. Capacity means sufficient understanding to comprehend the information outlined in section D(2) and to make a responsible decision concerning a particular treatment.

    There is a general assumption in the law that a minor is legally incapacitated to make most health care decisions. However, legal incapacity is not synonymous with clinical or developmental capacity to participate in a treatment decision which should always be determined on a case by case basis for clinical purposes. Where non-emergency intrusive medical treatment is at issue, the refusal of a mature (+ 14) minor must be honored.
  2. Adequate information. The licensed, certified or other qualified mental health professional recommending a particular treatment shall provide to the recipient under C(1-3) above and his or her legally responsible parent, custodian or guardian, all information relevant to the formulation of a reasoned decision concerning such treatment. The recipient and his or her legally responsible parent, custodian or guardian, shall have the right to have a person of his or her choice present during the presentation of this information, provided that the nominee can be available within 48 hours, or within such other reasonable period as may be agreed upon; and the recipient, or his or her legally responsible parent, custodian or guardian, shall be informed of this right. The information may be provided orally or in writing, shall be communicated in terms designed to be comprehensible to a lay person, and shall include, without limitation:
    1. An assessment of the recipient's condition and needs;
    2. The nature of the proposed treatment, and a statement of the reasons why the professional believes it to be indicated in the recipient's case;
    3. The expected benefits of the treatment, and the known risks which it entails, including the common side-effects, precautions and contraindications of a particular medication;
    4. The anticipated duration of the treatment;
    5. A statement of reasonable alternatives to the proposed treatment, if any;
    6. Information as to where the recipient may obtain answers to further questions concerning the treatment;
    7. A clear statement that the recipient has the right to give or withhold consent to the proposed treatment.
  3. Voluntary choice. Consent to treatment must be given willingly in all cases, and may not be obtained through coercion or deception.

    A recipient's or legally responsible parent's, guardian's or custodian's initial refusal of treatment shall not preclude renewed attempts to obtain willing consent and an initial willing consent shall not preclude him or her from validly withdrawing such consent at any time before or during treatment.
  4. Documentation. The informed consent of a recipient and his or her legally responsible parent, custodian or guardian to a particular treatment shall be documented to show:
    1. From whom consent is obtained, whether recipient, legally responsible parent, custodian or guardian;
    2. If consent is given by the recipient under C(1-3) above, a signed statement that the recipient possesses capacity to give informed consent
    3. That adequate information, including at a minimum all the elements listed in subsection D(2) of this rule, was provided;
    4. The signature of the legally responsible parent, custodian or guardian, and where applicable under C(1-3) above, the signature of the recipient, indicating consent, in cases where psychotropic medication is prescribed.
  5. Exception to Written Consent

In cases of unanticipated treatment needs, the informed consent of a legally responsible parent, custodian or guardian may be obtained by telephone; but such oral consent shall be confirmed in writing in accordance with this section as soon as practicable.