(a) Except in accordance with the procedure described in subsection (c)(3) of this section or as otherwise provided by law, no mental health services or mental health supports shall be provided absent a consumer’s informed consent. In seeking a consumer’s informed consent, the Department or other provider shall present the consumer with information about the proposed services or supports, including their purpose, side effects, and potential risks and benefits, as well as information about feasible alternative treatments.

(b) If, after providing such information, the consumer’s physician is of the opinion that the consumer is incapable of making a decision regarding the provision of particular mental health services and mental health supports, the physician shall seek certification of the consumer’s incapacitation in accordance with Chapter 22 of Title 21.

(c) If a consumer is certified as incapacitated in accordance with § 21-2204, his or her physician shall seek to obtain consent to the provision of particular mental health services and mental health supports as follows:

(1) If the physician is aware that the consumer has executed a durable power of attorney for health care pursuant to § 21-2205, and the consumer’s attorney-in-fact is available and willing to make a decision pursuant to § 21-2206 about the provision of particular mental health services and mental health supports, the physician shall seek to obtain consent from the attorney-in-fact. Except in an emergency as described in subsection (c)(3)(A) of this section or as otherwise provided by law, only those particular mental health services and mental health supports to which the attorney-in-fact consents shall be provided;

(2) If the attending physician is unaware that the consumer has executed a durable power of attorney for health care, if the consumer’s attorney-in-fact is unavailable or unwilling to make a decision about the provision of particular mental health services and mental health supports, or if no durable power of attorney for health care has been executed by the consumer, the consumer’s physician shall seek to obtain consent from a substitute health care decision-maker in accordance with § 21-2210. Except in an emergency as described in subsection (c)(3)(A) of this section or as otherwise provided by law, only those particular mental health services and mental health supports to which the substitute health care decision-maker consents shall be provided;

(3) If no attorney-in-fact or substitute health care decision-maker is available and willing to make a decision about the provision of particular mental health services and mental health supports, no mental health services or mental health supports shall be provided until a decision is made by a guardian sought and appointed by the court pursuant to § 21-2041 to provide such services and supports, except:

(A) In an emergency, when it is the written opinion of the attending physician that delay in obtaining the consent of the consumer, the attorney-in-fact, or a substitute health care decision-maker is likely to result in serious injury to the consumer or others, and mental health services and mental health supports are delivered only to the extent necessary to terminate the emergency; or

(B) After the conclusion of the administrative procedure set forth in § 7-1231.08.

(4) If, following 30 days from the date of certification of the consumer’s incapacitation under this section, a consumer continues to be incapacitated for purposes of making a particular health care decision, and there remains no attorney-in-fact or substitute decision-maker available to make a decision about the delivery of particular mental health services and mental health supports to the consumer, the Department, or other provider as appropriate, shall seek the appointment of a guardian for the consumer in accordance with subchapter V of Chapter 20 of Title 21.

(d) Family members and personal representatives to whom the consumer has authorized release of information in accordance with Chapter 12 of this title shall be notified as soon as possible whenever mental health services and mental health supports are provided without the consent of the consumer pursuant to subsection (c)(3) of this section.

(e) Electroconvulsive treatment shall not be administered to a consumer without the consumer’s own informed and written consent unless authorized by an order of the court issued in accordance with §§ 21-2047(c)(2) and 21-2211(b).

(Dec. 18, 2001, D.C. Law 14-56, § 207, 48 DCR 7674.)

For temporary (90 day) addition of section, see § 207 of Mental Health Service Delivery Reform Congressional Review Emergency Act of 2001 (D.C. Act 14-144, October 23, 2001, 48 DCR 9947).