26:2H-112 Discussion of patient's mental health condition.

11. a. (1) The responsible mental health care professional, the patient to the extent possible, the mental health care representative, and, when appropriate, any additional mental health care professional responsible for the patient's care, shall discuss the nature and consequences of the patient's mental health condition, and the risks, benefits and burdens of the proposed mental health care and its alternatives. Except as provided in paragraph (2) of subsection b. of this section, the responsible mental health care professional shall obtain informed consent for, or refusal of, health care from the mental health care representative.

(2) The decision-making process shall allow, as appropriate under the circumstances, adequate time for the mental health care representative to understand and deliberate about all relevant information before a treatment decision is implemented.

b. (1) The mental health care representative and the responsible mental health care professional shall seek to promote the patient's capacity for effective participation.

(2) Once decision-making authority has been conferred upon a mental health care representative pursuant to an advance directive for mental health care, if the patient is subsequently found to possess adequate decision-making capacity with respect to a particular mental health care decision, the patient shall have legal authority to make that decision. In those circumstances, the mental health care representative may continue to participate in the decision-making process in an advisory capacity, unless the patient objects.

c. If a mental health care representative is authorized to consent to the patient's admission to a psychiatric facility pursuant to paragraph (6) of subsection a. of section 6 of this act and the responsible mental health care professional has obtained informed consent for admission from the mental health care representative, the responsible mental health professional may admit the patient based upon the responsible mental health professional's:

(1) thorough investigation of the patient's psychiatric and psychological history, diagnosis and need for care or treatment, and expressed wishes;

(2) written determination that the patient is in need of an inpatient evaluation or would benefit from the care or treatment of a mental, emotional or other personality disorder in an inpatient setting, and that the evaluation, care or treatment cannot be accomplished in a less restrictive setting; and

(3) documentation in the patient's medical records of the responsible mental health professional's findings and recommendations with regard to the patient's care or treatment.

d. In acting to implement a patient's wishes pursuant to an advance directive for mental health care, the mental health care representative shall give priority to the patient's instruction directive, and may also consider, as appropriate and necessary, the following forms of evidence of the patient's wishes:

(1) the patient's contemporaneous expressions, including nonverbal expressions;

(2) other reliable sources of information, including the mental health care representative's personal knowledge of the patient's values, preferences and goals; and

(3) reliable oral or written statements previously made by the patient, including, but not limited to, statements made to other persons.

e. If the instruction directive, in conjunction with other evidence of the patient's wishes, does not provide, in the exercise of reasonable judgment, clear direction as applied to the patient's mental health condition and the treatment alternatives, the mental health care representative shall exercise reasonable discretion, in good faith, to effectuate the provisions, intent, and spirit of the instruction directive and other evidence of the patient's wishes.

f. Subject to the provisions of this act, and unless otherwise stated in the advance directive, if the patient's wishes cannot be adequately determined, then the mental health care representative shall make a mental health care decision in the patient's best interests.

L.2005,c.233,s.11.