OAR 309-033-0620: Obtaining Informed Consent to Treatment from a Person and the Administration of Significant Procedures Without the Informed Consent of a Person under Civil Commitment.

(1) Basic rule for obtaining informed consent to treatment from a person. A person or a guardian, on behalf of a legally incapacitated person, may refuse any significant procedure and may withdraw at any time consent previously given to any significant procedure. (2) Documentation of withdrawal of consent. Any refusal or withdrawal or withholding of consent shall be documented in the person’s record. (3) Exceptions to obtaining informed consent from a person. Personnel of a facility shall not administer a significant procedure to a person under civil commitment unless informed consent is obtained from or on behalf of the person in the manner prescribed in OAR 309-033-0620, except as described in OAR 309-033-0630 and OAR 309-033-0630. (4) Capacity of the person under civil commitment. Unless adjudicated legally incapacitated for all purposes or for the specific purpose of making treatment decisions, a person shall be presumed competent to consent to, or refuse, withhold, or withdraw consent to significant procedures. (a) A Licensed Independent Practitioner (LIP) shall deem a person unable to consent to or refuse, withhold, or withdraw consent to a significant procedure only if the person currently demonstrates an inability to comprehend and weigh the risks and benefits of the proposed procedure, alternative procedures, or no treatment at all or other information disclosed pursuant to OAR 309-032-0620. Such inability is to be documented in the person’s record and supported by documented statement or behavior of the person. (b) A person under civil commitment and court ordered to the custody of the Division shall not be deemed unable to consent to or refuse, withhold, or withdraw consent to a significant procedure merely by reason of one or more of the following facts: (A) That the person has been involuntarily placed under civil commitment to the Division; (B) That the person has been diagnosed with a mental disorder; (C) That the person has disagreed or now disagrees with the treating LIP’s diagnosis; and (D) That the person has disagreed or now disagrees with the treating LIP’s recommendation regarding treatment. (c) If a court has determined that a person under civil commitment is legally incapacitated with regard to medical treatment decisions, then consent shall be sought from the legal guardian or healthcare representative as defined by ORS 127.505. (5) Procedures for obtaining informed consent and information to be given. (a) The person from whom informed consent to a significant procedure is sought, as required by ORS 677.097, shall be given information regarding: (A) The nature and seriousness of the person under civil commitment’s mental illness or condition; (B) The purpose and method of the significant procedure, its intended outcome and the risks and benefits of the procedure and when neuroleptic medication is prescribed, that tardive dyskinesia is a risk; (C) Any alternatives that are reasonably available and reasonably comparable in effectiveness; and (D) Any additional information concerning the proposed significant procedure requested by the person. (b) The LIP intending to administer a significant procedure shall document in the person’s chart that the information required in OAR 309-033-0620 was explained and that the person or guardian of a legally incapacitated person or resident explicitly consented, refused, withheld, or withdrew consent. (6) Voluntary consent. Consent to a proposed significant procedure must be given voluntarily, free of any duress or coercion. Subject to the provisions of OAR 309-033-0640 and 309-033-0260 the decision to refuse, withhold or withdraw consent previously given shall not result in the denial of any other benefit, privilege, or service solely on the basis of refusing withholding to or withdrawing consent. A voluntary person may be discharged from the facility if offered procedures are refused. (7) Obtaining consent with respect to legally incapacitated persons. A facility may not administer a significant procedure to a person determined legally incapacitated and who is under civil commitment without the consent of the guardian, except in the case of an emergency. (8) Reports of progress. The person or the guardian of a person determined legally incapacitated shall, upon request, be informed of the progress of the person during administration of the significant procedure. (9) Right to appeal. A person has the right to appeal the application of any provision of these rules as provided in the grievance policies and procedures of the facility. If the person under civil commitment is also determined to be legally incapacitated, the guardian has the right to appeal the application of any provision of these rules by using the grievance procedures.