26:2H-113 Instruction directive legally operative, conditions.

12. a. If the patient has executed an instruction directive but has not designated a mental health care representative, or if neither the designated mental health care representative or any alternate designee is able or available to serve, the instruction directive shall be legally operative. If the instruction directive provides clear and unambiguous guidance under the circumstances, it shall be honored in accordance with its specific terms by a legally appointed guardian, if any, family member, mental health care professional and psychiatric facility involved with the patient's mental health care, and any other person acting on the patient's behalf, except as provided in subsection c. of this section.

b. If the instruction directive is, in the exercise of reasonable judgment, not specific to the patient's mental health condition and the treatment alternatives, the responsible mental health care professional, in consultation with a legally appointed guardian, if any, family member, or other person acting on the patient's behalf, shall exercise reasonable judgment to effectuate the wishes of the patient, giving full weight to the terms, intent and spirit of the instruction directive.

c. Departure from the specific provisions of the instruction directive shall be permitted only if the responsible mental health care professional determines that compliance with those terms or provisions would:

(1) violate the accepted standard of mental health care or treatment under the circumstances of the patient's mental health condition;

(2) require the use of a form of care or treatment that is not available to the mental health care professional responsible for the provision of mental health services to the patient;

(3) violate a court order or provision of statutory law; or

(4) endanger the life or health of the patient or another person.

L.2005,c.233,s.12.