OAR 309-114-0010: General Policy on Obtaining Informed Consent to Treatment and Training

(1)(a) Basic Rule. Patients, guardians, or healthcare representatives may refuse any significant procedure and may withdraw at any time consent previously given to a significant procedure. Any refusal or withdrawal or withholding of consent must be documented in the patient's record. (b) Personnel of a state institution must not administer a significant procedure to a patient unless written informed consent is obtained from or on behalf of the patient in the manner prescribed in these rules, except as follows: (A) Administration of significant procedures to legally incapacitated patients as provided in section (6) of this rule; (B) Administration of significant procedures without informed consent in emergencies under OAR 309-114-0015; (C) Involuntary administration of significant procedures with good cause to persons committed to the Division under OAR 309-114-0020; or (D) Involuntary administration of significant procedures pursuant to a valid court order. (2) Capacity of the patient: In order to consent to, or refuse, withhold, or withdraw consent to significant procedures, the patient must have the capacity to make a decision concerning acceptance or rejection of a significant procedure, as follows: (a) Unless adjudicated legally incapacitated for all purposes or for the specific purpose of making treatment decisions, a patient must be presumed competent to consent to, or refuse, withhold, or withdraw consent to significant procedures. (b) An individual committed to the Division may be deemed unable to consent to or refuse, withhold, or withdraw consent to a significant procedure only if the individual currently demonstrates an inability to reasonably comprehend and weigh the risks and benefits of the proposed procedure, alternative procedures, or no treatment at all including, but not limited to, all applicable factors listed in (3)(a) of this rule. (c) The patient’s current inability to provide informed consent is to be documented in the patient's record and supported by the patient’s statements or behavior, and may be evidenced in the treating physician’s or psychiatric nurse practitioner's informed consent form, the evaluation form by the independent examining physician and forms approving or disapproving the procedure by the superintendent or chief medical officer. (d) An individual committed to the Division must 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) The individual has been involuntarily committed to the Division; (B) The individual has been diagnosed as mentally ill; (C) The individual has disagreed or now disagrees with the treating physician's or psychiatric nurse practitioner’s diagnosis; or (D) The individual has disagreed or now disagrees with the treating physician's or psychiatric nurse practitioner’s recommendation regarding treatment. (e) If a court has determined that a patient is legally incapacitated, then consent must be sought from the legal guardian. (3)(a) Procedures for Obtaining Informed Consent and Information to be Given: The individual from whom informed consent to a significant procedure is sought must be given: (A) Information, orally and in writing, the substance of which is to be found on the treating physician's or psychiatric nurse practitioner's informed consent form; (B) In the case of medication, an attached preprinted information sheet on the risks and benefits of the medication listed on the treating physician's or psychiatric nurse practitioner's form; and (C) All written materials under this rule in English. However, if the institution has reason to believe a patient has limited English language proficiency or the patient requests it, then the institution must make reasonable accommodations to provide the patient with meaningful access to the information, such as providing the patient with copies of the materials in the patient's native language if the materials are readily available in that language or providing the opportunity to have an interpreter orally translate written materials into the patient's native language. (b) The information given must describe: (A) The nature and seriousness of the patient's mental illness or condition; (B) The purpose of the significant procedures listed on the treating physician’s or psychiatric nurse practitioner's form, the intended outcome and the risks and benefits of the procedures. However, specific information about significant procedures of a similar class must not be provided to or discussed with the patient; (C) Any alternatives, particularly alternatives offering less material risks to the proposed significant procedure that are reasonably available and reasonably comparable in effectiveness; (D) If the proposed significant procedure is medication, facility medical staff must give the name, dosage range, and frequency of administration of the medication listed on the treating physician’s or psychiatric nurse practitioner's form, and must explain the material risks of the medication at that dosage range. (E) The side effects of the intended medication or electro-convulsive therapy; (F) The predicted medical, psychiatric, social, or legal consequences of not accepting the significant procedure or any comparable procedure, including any potential risk the patient represents to the health and safety of the patient, or others, which may include, but is not limited to, a consideration of the patient's history of violence and its relationship to mental health treatment if they do not receive the significant procedure; (G) That consent may be refused, withheld or withdrawn at any time; (H) Any additional information concerning the proposed significant procedure requested by the patient. (c) The treating physician or psychiatric nurse practitioner intending to administer a significant procedure must document in the patient's chart that the information required in subsection (3)(b) of this rule was explained and that the patient, guardian, or healthcare representative explicitly consented, refused, withheld or withdrew consent. The treating physician or psychiatric nurse practitioner may document this by completing the informed consent form and make it part of the patient's record. (4) When discussing the significant procedure with the treating physician or psychiatric nurse practitioner, the patient may request additional information about the significant procedure pursuant to OAR 309-114-0010(3)(a)(H) and present additional information relevant to making their decision. (5) Voluntary Consent: Consent to a proposed significant procedure must be given voluntarily, free of any duress or coercion. Subject to the provisions of OAR 309-114-0020, the decision to refuse, withhold or withdraw consent previously given must not result in the denial of any other benefit, privilege, or service solely on the basis of refusing, withholding or withdrawing consent. A voluntary patient may be discharged from the institution if offered procedures are refused. (6) Obtaining Consent with Respect to Legally Incapacitated Patients: A state institution may not administer a significant procedure to a legally incapacitated patient without the consent of the guardian, except in the case of an emergency under OAR 309-114-0015, where the institution has good cause to involuntarily administer a significant procedure under 309-114-0020, or pursuant to a valid court order. In order to prove good cause, the institution must prove 309-114-0020(1)(a) and (1)(d) in reference to the guardian and 309-114-0020(1)(b) and (1)(c) in reference to the patient. (7) Reports of Progress: A patient, guardian, or healthcare representative must, upon request, be informed of the progress of the patient during administration of the significant procedure.