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LEGISLATURE
OF THE STATE OF IDAHO
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Fifty-fourth Legislature
Second Regular Session - 1998
IN THE SENATE
SENATE BILL NO. 1358
BY HEALTH AND WELFARE COMMITTEE
1
AN ACT
2 RELATING TO DECLARATIONS FOR MENTAL HEALTH TREATMENT; AMENDING TITLE
66, IDAHO
3 CODE, BY THE ADDITION OF A NEW CHAPTER 6,
TITLE 66, IDAHO CODE, TO PROVIDE
4 FOR DECLARATIONS FOR MENTAL HEALTH TREATMENT,
TO DEFINE TERMS, TO SPECIFY
5 CONTENTS OF DECLARATIONS FOR MENTAL
HEALTH TREATMENT, TO PROVIDE FOR DES-
6 IGNATION OF AN AGENT, TO REQUIRE SIGNATURES
AND WITNESSES, TO GOVERN THE
7 OPERATION OF A DECLARATION, TO SPECIFY
THE POWERS OF AN AGENT, TO PROVIDE
8 FOR WITHDRAWAL OF AN AGENT, TO PROVIDE
LIMITATIONS, TO ADDRESS ACTIONS
9 CONTRARY TO A DECLARATION, TO
GOVERN RELATION TO OTHER STATUTES, TO PRO-
10 VIDE LIMITED IMMUNITY, TO PROVIDE PENALTIES,
AND TO GOVERN THE FORM OF A
11 DECLARATION; AND PROVIDING AN EFFECTIVE DATE.
12 Be It Enacted by the Legislature of the State of Idaho:
13 SECTION 1. That Title 66, Idaho
Code, be, and the same is hereby amended
14 by the addition thereto of a NEW CHAPTER , to be known
and desig-
15 nated as Chapter 6, Title 66, Idaho Code, and to read as follows:
16
CHAPTER 6
17
DECLARATIONS FOR MENTAL HEALTH TREATMENT
18 66-601. DEFINITIONS. For the purposes
of this chapter, the following def-
19 initions shall apply:
20 (1) "Agent" means
an adult properly appointed to make mental health
21 treatment decisions for a principal under a declaration
for mental health
22 treatment and also means an alternative agent.
23 (2) "Attending
physician" means the licensed physician who has primary
24 responsibility for the care and treatment of the declarant.
25 (3) "Facility" means:
26 (a) A designated treatment facility, as
defined in section 66-317(g),
27 Idaho Code;
28 (b) A nursing home; or
29 (c) An assisted living home.
30 (4) "Incapable" means
that, by order of a court in a guardianship pro-
31 ceeding under section 66-322, Idaho Code, or in the opinion of two
(2) physi-
32 cians that include a psychiatrist, or in the opinion of a physician
and a pro-
33 fessional mental health clinician, a person's ability to
receive and evaluate
34 information effectively or communicate decisions is impaired to such
an extent
35 that the person currently lacks the capacity to make mental
health treatment
36 decisions.
37 (5) "Mental health
treatment" means electroconvulsive treatment, treat-
38 ment with psychotropic medication or short-term
admission to a treatment
39 facility for a period not to exceed seventeen (17) days.
40 (6) "Mental illness"
means a substantial disorder of thought, mood, per-
41 ception, orientation or memory, which grossly impairs judgment,
behavior, or
42 capacity to recognize and adapt to reality.
2
1 (7) "Professional mental
health clinician" means an individual who holds
2 an earned master's level or higher degree in social work from
an accredited
3 program; a registered nurse with an earned master's degree or higher
degree in
4 nursing with a specialization in psychiatric or mental health
nursing from an
5 accredited program; an individual who holds an earned master's level
or higher
6 degree in psychology from an accredited program; or an individual who
holds an
7 earned master's level or higher degree in counseling,
marriage and family
8 therapy or other closely related degree. Additionally,
professionals in each
9 category must have at least two (2) years experience in
a clinical mental
10 health setting.
11 66-602. DECLARATIONS FOR
MENTAL HEALTH TREATMENT. (1) A competent adult
12 may make a declaration of preferences or instructions regarding
mental health
13 treatment. The preferences or instructions may include
consent to or refusal
14 of mental health treatment. The declaration shall name
an attorney-in-fact
15 (agent) and an alternative agent whose authority
continues in effect as long
16 as the declaration appointing the agent is in effect or until
the agent has
17 withdrawn. If a declaration for mental health treatment
has been invoked and
18 is in effect, the declaration remains effective until the
principal is no
19 longer incapable.
20 (2) A declaration for
mental health treatment continues in effect until
21 revoked. A declaration may be revoked in whole or in part at any time
by the
22 principal if the principal is not incapable. A revocation is
effective when a
23 capable principal communicates the revocation to the attending
physician or
24 other provider. The attending physician or other provider shall note
the revo-
25 cation as part of the principal's medical record.
26 66-603. DESIGNATION OF AGENT. (1) A
declaration may designate a competent
27 adult to act as agent to make decisions
about mental health treatment. An
28 alternative agent may also be designated to act as agent if the
original des-
29 ignee is unable or unwilling to act at any time.
30 (2) The following may not serve as
agent:
31 (a) The attending
physician, mental health service provider, or an
32 employee of the physician or provider, who is
not related to the principal
33 by blood, marriage or adoption;
34 (b) An owner, operator or employee of a
health care facility in which the
35 principal is a patient or resident who is not
related to the principal by
36 blood, marriage or adoption.
37 (3) The designation of an agent
under this section supersedes a previous
38 designation of an agent regarding mental health treatment
unless otherwise
39 specifically provided in the declaration.
40 66-604. SIGNATURE -- WITNESSES. (1) A
declaration is effective only if it
41 is signed by the principal and two (2)
competent adult witnesses. The wit-
42 nesses must attest that the principal is personally known to them,
signed the
43 declaration in their presence, appears to be of sound
mind, and is not under
44 duress, fraud or undue influence.
45 (2) The following may not serve as a
witness to the signing of a declara-
46 tion:
47 (a) The attending physician or mental
health service provider or a rela-
48 tive of the physician or provider;
49 (b) An owner, operator, or
relative of an owner or operator of a health
50 care facility in which the principal is a
patient or resident; or
51 (c) A person related to the principal
by blood, marriage or adoption.
3
1 66-605. OPERATION OF DECLARATION. (1)
A declaration becomes operative
2 when it is delivered to the principal's physician or
mental health treatment
3 provider and remains valid until revoked. The physician or provider
shall act
4 in accordance with an operative declaration when the principal
has been found
5 to be incapable. The physician or provider shall
continue to obtain the
6 principal's informed consent to all mental health
treatment decisions if the
7 principal is capable of providing informed consent or refusal.
8 (2) Upon being presented with a
declaration, a physician or other pro-
9 vider shall make the declaration a part of the principal's medical
record if a
10 physician-patient relationship has
previously been established. If no
11 physician-patient relationship has previously been
established, nothing in
12 this statute, or rules adopted pursuant thereto,
may be read to require the
13 establishment of physician-patient relationship in contradiction to
the exist-
14 ing requirements of reasonable medical practice. When acting
under authority
15 of a declaration, a physician or provider shall comply with it
to the fullest
16 extent possible consistent with reasonable medical practice, the
availability
17 of treatments requested, and applicable law. If the
physician or other pro-
18 vider is unwilling at any time to comply with the declaration,
the physician
19 or provider may withdraw from providing treatment consistent with the
exercise
20 of independent medical judgment by promptly
notifying the principal and the
21 agent and documenting the notification in the principal's medical
record.
22 66-606. POWERS OF AGENT. (1) An agent
who has accepted the appointment in
23 writing may make decisions about mental health treatment
on behalf of the
24 principal only when the principal is incapable. The decisions
must be consis-
25 tent with desires the principal has expressed in the declaration.
26 (2) Except to the extent the right is
limited by the declaration or any
27 federal law, an agent has the same right as the principal to
receive informa-
28 tion regarding the proposed mental health treatment and to receive,
review and
29 consent to disclosure of medical records relating to
that treatment. This
30 right of access does not waive any evidentiary privilege.
31 (3) In exercising authority
under the declaration, the agent has a duty
32 to act consistently with the desires of the principal as expressed in
the dec-
33 laration. If the principal's desires are not expressed in the
declaration and
34 not otherwise known by the agent, the
agent has a duty to act in what the
35 agent in good faith believes to be the best interest of the
principal.
36 (4) An agent is not subject to criminal
prosecution, civil liability or
37 professional disciplinary action for an
action taken in good faith under a
38 declaration for mental health treatment. The agent is not, as a
result of act-
39 ing in that capacity, personally liable for the cost of treatment
provided to
40 the principal.
41 66-607. WITHDRAWAL. An agent may
withdraw by giving notice to the princi-
42 pal. If a principal is incapable, the agent may withdraw
by giving notice to
43 the attending physician or provider. The attending physician or
provider shall
44 note the withdrawal as part of the principal's medical record,
and may con-
45 tinue treatment in accordance with the declaration to the
extent such treat-
46 ment is consistent with reasonable medical practice. A person
who has with-
47 drawn under the provision of this section may rescind the
withdrawal by exe-
48 cuting an acceptance after the date of the withdrawal. A person who
rescinds a
49 withdrawal shall give notice to the principal if the principal is
capable or
50 to the principal's health care provider if the principal is
incapable.
51 66-608. LIMITATIONS. A
person may not be required to execute or to
52 refrain from executing a declaration as a criterion for insurance, as
a condi-
4
1 tion for receiving mental or physical health services, or as a
condition of
2 discharge from a health care facility.
3 66-609. ACTIONS CONTRARY TO
DECLARATION. The physician or provider may
4 subject the principal to mental health treatment in a manner contrary
to the
5 principal's wishes as expressed in a declaration for
mental health treatment
6 only:
7 (1) If the principal is committed to a
treatment facility under section
8 66-329, Idaho Code; or
9 (2) In cases of emergency endangering
life or health.
10 66-610. RELATION TO OTHER
STATUTES. A declaration does not limit any
11 authority provided in this chapter either to take a person into
custody or to
12 admit, retain or treat a person in a health care facility.
13 66-611. LIMITED IMMUNITY. A physician
or provider who administers or does
14 not administer mental health treatment according to and in good faith
reliance
15 upon the validity of a declaration is not
subject to criminal prosecution,
16 civil liability or professional disciplinary action resulting
from a subse-
17 quent finding of a declaration's invalidity.
18 66-612. PENALTY. It is
a misdemeanor for a person to knowingly alter,
19 forge, conceal or destroy a declaration, or the reinstatement or
revocation of
20 a declaration. In this section, "knowingly" has the meaning
given in section
21 18-101 5., Idaho Code.
22 66-613. FORM OF
DECLARATION. A declaration for mental health treatment
23 shall contain the following language, or language that is
substantially simi-
24 lar.
25 NOTICE TO
PERSON MAKING A DECLARATION FOR MENTAL HEALTH TREAT-
26 MENT. This is an important legal document. It
creates a declaration
27 for mental health treatment. Before signing
this document, you should
28 know these important facts:
29 (1) This
document allows you to make decisions in advance about
30 three (3) types of mental health
treatment: psychotropic medication,
31 electroconvulsive therapy, and short-term (up
to seventeen (17) days)
32 admission to a treatment facility. The
instructions that you include
33 in this declaration will be followed
only if a court, two (2) physi-
34 cians that include a psychiatrist, or a
physician and a professional
35 mental health clinician
believe that you are incapable of making
36 treatment decisions. Otherwise, you will
be considered capable to
37 give or withhold consent for the treatments.
38 (2) You
may also appoint a person as your agent to make these
39 treatment decisions for you if you become
incapable. The person you
40 appoint has a duty to act
consistent with your desires as stated in
41 this document or, if your desires are not
stated or otherwise made
42 known to the agent, to act in a manner
consistent with what the per-
43 son in good faith believes to be in
your best interest. For the
44 appointment to be effective, the
person you appoint must accept the
45 appointment in writing. The person also has
the right to withdraw
46 from acting as your agent at any time.
47 (3) This
document will continue in effect until revoked. You
48 have the right to revoke this document in
whole or in part at any
49 time you have not been determined to be
incapable. YOU MAY NOT REVOKE
50 THIS DECLARATION WHEN YOU
ARE CONSIDERED INCAPABLE BY A COURT, TWO
5
1 (2) PHYSICIANS THAT INCLUDE A PSYCHIATRIST, OR
A PHYSICIAN AND A PRO-
2 FESSIONAL MENTAL HEALTH CLINICIAN. A
revocation is effective when it
3 is communicated to your attending physician or
other provider.
4 (4) If
there is anything in this document that you do not
5 understand, you should ask a lawyer to explain
it to you. This decla-
6 ration will not be valid unless it is signed
by two (2) qualified
7 witnesses who are personally
known to you and who are present when
8 you sign or acknowledge your signature.
9 SECTION 2. This act shall be in full
force and effect on and after July
10 1, 1999.