STATE CHARITABLE INSTITUTIONS
HOSPITALIZATION OF MENTALLY ILL
66-322. Appointment of guardian for individuals lacking capacity to make informed decisions about treatment — Judicial procedure . (a) Proceedings for the appointment of a guardian of a mentally ill person may be commenced by the filing of a written petition with a court of competent jurisdiction by a friend, relative, spouse or guardian of the proposed patient, by a licensed physician, licensed clinical psychologist, prosecuting attorney, or other public official of a municipality, county or of the state of Idaho, or by the director of any facility in which such patient may be.
(b) The petition shall state the name and last known address of the proposed patient; the name and address of either the spouse, next of kin or friend of the proposed patient; whether a guardian of the proposed patient has been previously appointed under the laws of this or any other state and, if so, the name and address of the guardian and the circumstances of such appointment; and a precise statement showing that the proposed patient is mentally ill, that treatment is available for such illness, and that the proposed patient lacks capacity to make informed decisions about treatment.
(c) Any such petition shall be accompanied by a certificate of a licensed physician or licensed clinical psychologist stating that the physician or psychologist has personally examined the proposed patient within the last fourteen (14) days and is of the opinion: (i) that the proposed patient is mentally ill, (ii) that in the absence of treatment the immediate prognosis is for major distress of the proposed patient which will result in serious mental or physical deterioration of the proposed patient, (iii) that treatment is available which is likely to avoid serious mental or physical deterioration of the proposed patient, and (iv) that the proposed patient lacks capacity to make informed decisions about treatment; or by a written statement by the physician or psychologist that the proposed patient has refused to submit to an examination.
(d) Upon receipt of a petition, the court shall within forty-eight (48) hours appoint another licensed physician or licensed clinical psychologist to make a personal examination of the proposed patient, or if the proposed patient has not been examined, the court shall appoint two (2) licensed physicians or licensed clinical psychologists to make individual personal examinations of the proposed patient and may order the proposed patient to submit to an immediate examination. Within seventy-two (72) hours, the physician or psychologist shall file with the court certificates described in subparagraph (c) above, if necessary.
(e) Upon receipt of such petition and certificates, the court shall appoint a time and place for hearing not more than seven (7) days from receipt of such certificates and thereupon give written notice to the proposed patient. The notice shall include a copy of the petition and certificates and notice of the proposed patient’s right to be represented by an attorney, or if indigent, to be represented by a court-appointed attorney. Notice of the time and place of the hearing shall also be given to the petitioner.
(f) An opportunity to be represented by counsel shall be afforded to every proposed patient, and if neither the proposed patient nor others provide counsel, the court shall appoint counsel in accordance with chapter 8, title 19, Idaho Code.
(g) The hearing shall be held at a facility, at the home of the proposed patient, or at any other suitable place not likely to have a harmful effect on the proposed patient’s physical or mental health.
(h) The proposed patient and the petitioner shall be afforded an opportunity to appear at the hearing, to testify, and to present and cross-examine witnesses. At the hearing, any existing provision of law prohibiting the disclosure of confidential communications between the examining physician or psychologist and the proposed patient shall not apply and the physicians or psychologists who examined the proposed patient shall be competent witnesses to testify as to the proposed patient’s condition. The proposed patient shall be required to be present at the hearing, and be free from drugs likely to impair the proposed patient’s ability to communicate with counsel or understand the proceedings, unless the right to be present or free from drugs is knowingly and voluntarily waived by the patient or unless the presence of the patient at the hearing would unduly disrupt the judicial proceedings. A record of the proceedings shall be made as for other civil hearings. The hearing shall be conducted in as informal a manner as may be consistent with orderly procedure and the rules of evidence.
(i) The court shall appoint a person other than the treating professional to act in the proposed patient’s best interest with authority to consent to treatment, if, upon completion of the hearing and consideration of the record, the court finds by clear and convincing evidence that:
(1) The proposed patient has a severe and reliably diagnosable mental illness;
(2) Without treatment, the immediate prognosis is for major distress resulting in serious mental or physical deterioration of the proposed patient;
(3) Treatment is available for such illness;
(4) The proposed patient lacks capacity to make informed decisions about treatment; and
(5) The relative risks and benefits of treatment or nontreatment are such that a reasonable person would consent to treatment.
The court shall consider appointing persons to give consent in the following priority: the proposed patient’s spouse, next of kin, friend or if the proposed patient’s spouse, next of kin or friend are unable or unwilling, another appropriate person not associated with the facility where the person is being, or shall be treated.
(j) The appointed person shall have authority to consent to treatment, including treatment at a facility. Upon approval of the court, the appointed person may pay the costs of treatment from the patient’s money and tangible property deliverable to or received by the patient during the period of the appointed person’s authority, and may apply for any benefits to which the patient is entitled. In the exercise of his powers, the appointed person is to act as a fiduciary and shall observe the standards of care applicable to trustees as described by section 15-7-302, Idaho Code. The appointment shall continue for a period of seven (7) weeks or until the court determines that the patient no longer lacks capacity to make informed decisions about treatment, whichever is shorter.
(k) Upon petition of the appointed person, authority to consent may be continued for an additional seven (7) week period, if the court again enters the findings required by subparagraph (i) above. The petition for continued authority shall be accompanied by the certificate of the treating professional meeting the requirements of subparagraph (c) above. The petition for continued authority and physician’s certificate shall be served upon the patient and the patient’s attorney. If the proposed patient objects to the continued authority, the court shall conduct a hearing, following notice of the time and place of such hearing to the petitioner, the proposed patient and the proposed patient’s attorney.
(l) Proceedings for appointment of a person with authority to consent under this section may be consolidated with proceedings for the involuntary care of the proposed patient under section 66-329, Idaho Code, provided, however, that appointment of a person with authority to consent under this section shall terminate the proceedings for the involuntary care under section 66-329, Idaho Code.
(m) No more than two (2) petitions with authority to consent shall be granted under subsection (i) of this section within any twelve (12) month period, provided that other proceedings under this chapter or the Uniform Probate Code shall be permitted.
(n) The person with authority to consent appointed pursuant to this section shall not be personally responsible for the cost of care or treatment rendered the mentally ill individual, simply by reason of the authority granted by this section.
[66-322, added 1981, ch. 114, sec. 13, p. 178.]