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S1358.................................................by HEALTH AND WELFARE
MENTAL HEALTH TREATMENT - Adds to existing law to adopt a procedure
allowing individuals to execute a declaration for mental health treatment
which is intended to provide instructions for treatment of mental illness
and specify a person or persons to act on their behalf in the event that
they are not competent to make such decisions.
01/29 Senate intro - 1st rdg - to printing
01/30 Rpt prt - to Health/Wel
02/05 Rpt out - rec d/p - to 2nd rdg
02/06 2nd rdg - to 3rd rdg
02/10 3rd rdg - PASSED - 33-0-2
AYES--Andreason, Boatright, Branch, Bunderson, Burtenshaw, Cameron,
Crow, Danielson, Darrington, Deide, Dunklin, Frasure, Geddes, Hansen,
Hawkins, Ingram, Ipsen, Keough, King, Lee, McLaughlin, Noh, Parry,
Richardson, Riggs, Risch, Sandy, Schroeder, Sorensen, Thorne, Twiggs,
Wheeler, Whitworth
NAYS--None
Absent and excused--Stennett, Sweeney
Floor Sponsors - King, Wheeler, Whitworth
Title apvd - to House
02/11 House intro - 1st rdg - to Health/Wel
03/09 Rpt out - rec d/p - to 2nd rdg
03/10 2nd rdg - to 3rd rdg
03/12 3rd rdg - PASSED - 64-1-5
AYES -- Alltus, Barraclough, Bell, Bieter, Bivens, Black(15),
Black(23), Boe, Bruneel, Callister, Campbell, Chase, Clark, Crane,
Cuddy, Deal, Denney, Ellsworth, Field(13), Field(20), Gagner, Geddes,
Gould, Hadley, Hansen, Henbest, Hornbeck, Jaquet, Jones(22),
Jones(20), Judd, Kellogg, Kempton, Kendell, Kjellander, Kunz, Lake,
Linford, Loertscher, Mader, Marley, McKague, Meyer, Miller,
Mortensen, Newcomb, Pomeroy, Reynolds, Richman, Ridinger, Robison,
Sali, Schaefer, Stevenson, Stoicheff, Stone, Stubbs, Taylor, Tilman,
Tippets, Trail, Watson, Wheeler, Zimmermann
NAYS -- Barrett
Absent and excused -- Crow, Jones(9), Pischner, Wood, Mr Speaker
Floor Sponsor - Denney
Title apvd - to Senate
03/13 To enrol
03/16 Rpt enrol - Pres signed
03/16 Sp signed
03/17 To Governor
03/18 Governor signed
Session Law Chapter 81
Effective: 07/01/99
S1358|||| LEGISLATURE OF THE STATE OF IDAHO |||| Fifty-fourth Legislature Second Regular Session - 1998IN 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.
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STATEMENT OF PURPOSE
RS 07590
Mental Health Declarations are a mechanism for persons with mental
illness who are competent, to articulate their preferences in type
and method of care that they receive, for the times when they may not
be competent to express such directions. An adult of sound mind may
make a declaration of these preferences, such as which medications
the patient wishes to have prescribed, places to be taken for
treatment, instructions about seclusion or restraint, and other
factors that may be considered. This proposal provides a legal
framework for the documentation of these directions, and the actions
that might be taken.
FISCAL IMPACT
None is
anticipated
Cntact:
Roseanne Hardin
Agency: Div. of Family and Community
Services, DHW
Phone:334-5680
S 1358