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DEPARTMENT OF CORRECTIONS

 

DIVISION 64

INFORMED CONSENT TO TREATMENT WITH PSYCHOTROPIC MEDICATION

291-064-0010

Authority, Purpose and Policy

(1) Authority: The authority for this rule is granted to the Director of the Department of Corrections in accordance with ORS 179.040, 423.020, 423.030, 423.075 and 430.021.

(2) Purpose: The purpose of this rule is to establish Department of Corrections policy and procedures for the administration of psychotropic medications to inmates in Department of Corrections facilities.

(3) Policy: When psychotropic medications are recommended for treatment of mental disorders, the prescribing practitioner will attempt to obtain the inmate's informed consent. In all situations involving involuntary medication, the principles of good professional practice will prevail. For involuntary medication to be approved, it must be demonstrated that the inmate has a mental disorder and as a result of that disorder there exists a likelihood of serious harm to the inmate, others or property; or the inmate is gravely disabled, and that the treatment is in the inmate's medical interest.

Stat. Auth.: ORS 179.040, ORS 423.020, ORS 423.030, ORS 423.075 & ORS 430.021
Stats. Implemented: ORS 179.040, ORS 423.020, ORS 423.030, ORS 423.075 & ORS 430.021
Hist.: CD 8-1995, f. 4-24-95, cert. ef. 5-1-95

291-064-0020

Definitions

(1) Department: Oregon Department of Corrections.

(2) Emergency: An immediate and serious danger to life or health.

(3) Facility: Any facility operated by the Department of Corrections in which inmates in the physical custody of the department reside.

(4) Gravely Disabled: A condition in which an inmate, as a result of a mental disorder, manifests a deterioration in routine functioning evidenced by repeated and escalating loss of cognitive or volitional control over behavior which creates a danger of serious physical and/or psychological harm to the inmate and/or serious physical injury to others.

(5) Guardian: A person appointed by a court of law to act as the guardian of a legally incapacitated person.

(6) Independent Examining Physician: A physician who shall be board certified in psychiatry, shall have been subjected to review by the Health Services Division Clinical Medical Director as to his/her qualifications to make such an examination, and shall have participated in a training program in the meaning and application of the provisions of this rule. The independent examining physician shall not be an employee of the Department of Corrections.

(7) Inmate: Any person under the supervision of the Department of Corrections who is not on parole or post-prison supervision status.

(8) Legally Incapacitated: A person who has been found by a court of law to be unable, without assistance, to properly manage or take care of their personal affairs.

(9) Likelihood of Serious Physical Injury: A substantial risk that an inmate will inflict serious physical injury:

(a) Upon the inmate, as evidenced by recent threats or attempts to commit suicide or self-inflicted physical injury; or

(b) Upon another, as evidenced by recent behavior which has caused such harm or has placed another person in reasonable fear of sustaining such injury; or

(c) Upon self or another by means of damaging property, as evidenced by recent behavior which has caused such injury or has placed another person in reasonable fear of sustaining such injury; or

(d) Upon the inmate, another, or by damage to property, as evidenced by recent behavior or thinking which, in examining the inmate's prior medical history, is associated with a pattern of behaviors leading to such injury or damage.

(10) Material Risk: A risk that may have a substantial adverse effect on the inmate's psychological and/or physical health. For example, tardive dyskinesia is a material risk of neuroleptic medications.

(11 ) Mental Disorder:

(a) An impaired general medical condition resulting in impaired mental functioning, or impaired emotional health; or

(b) A longstanding, inflexible, pervasive, and enduring pattern of inner experience and behavior that deviates markedly from the expectations of the individual's culture (usually constituting a maladaptive set of personality traits), usually of little concern to the person but which causes impaired life adjustment.

(12) Physical Injury: Impairment of physical condition or substantial pain.

(13) Psychotropic Medications: The class of medications that have central nervous system activity and are commonly used for the treatment of mental disorders. Types of medications within the class of psychotropic medications include, but are not limited to, neuroleptics (antipsychotics), lithium, and antidepressants.

(14) Serious Physical Injury: Injury which creates a substantial risk of death, causes serious and protracted disfigurement, impairment of health, or loss or impairment of the function of any bodily organ.

(15) Treating Practitioner: Any Health Services Division employee or contractor who by licensure is authorized to prescribe treatment specifically, including the administration of psychotropic medications. This includes physicians, nurse practitioners, and physician assistants.

(16) Treatment Plan: The comprehensive plan of medical, psychiatric, psychological, and psychosocial interventions used to guide treatment providers in assisting an inmate to accomplish the inmate's goals for behavioral change. One aspect of a treatment plan may be psychotropic medications.

Stat. Auth.: ORS 179.040, ORS 423.020, ORS 423.030, ORS 423.075 & ORS 430.021
Stats. Implemented: ORS 179.040, ORS 423.020, ORS 423.030, ORS 423.075 & ORS 430.021
Hist.: CD 8-1995, f. 4-24-95, cert. ef. 5-1-95

291-064-0030

General Policy on Obtaining Informed Consent for Administration of Psychotropic Medications

Capacity of the Inmate to Give Informed Consent.

(1) Inmates from whom informed consent to treatment with psychotropic medications is being sought shall be presumed competent to give consent unless:

(a) The inmate has been found to be legally incapacitated; or

(b) In the clinical opinion of the treating practitioner, the inmate currently demonstrates an inability to comprehend and weigh one or more factors involved in making informed consent as provided in OAR 291-064-0040(1).

(2) In determining the inmate's ability to comprehend and weigh the factors the treating practitioner shall:

(a) Disclose the information required in OAR 291-064-0040(1);

(b) Ask the inmate to repeat the information in the inmate's own words or to explain what the information means; and

(c) Ask the inmate to give a practical example of how the information may affect the inmate's decision.

(3) The inmate's ability to comprehend and weigh the factors in OAR 291-064-0040(1) shall be documented in the inmate's treatment record and supported by specific descriptions of the inmate's statements or behavior.

(4) An inmate shall not be deemed unable to give informed consent to administration of psychotropic medications solely because:

(a) The inmate has been diagnosed as mentally ill or mentally retarded;

(b) The inmate has previously disagreed or now disagrees with his/her diagnosis; or

(c) The inmate has previously disagreed or now disagrees with the recommendation for psychotropic medications.

Stat. Auth.: ORS 179.040, ORS 423.020, ORS 423.030, ORS 423.075 & ORS 430.021
Stats. Implemented: ORS 179.040, ORS 423.020, ORS 423.030, ORS 423.075 & ORS 430.021
Hist.: CD 8-1995, f. 4-24-95, cert. ef. 5-1-95

291-064-0040

Procedures for Obtaining Informed Consent and Information to be Provided

(1) An inmate, or the guardian of a legally incapacitated inmate, from whom informed consent to administration of psychotropic medications is sought, shall be given information orally and in writing as follows:

(a) The nature of the inmate's mental disorder;

(b) The name and purpose of the recommended medication;

(c) The material risks of the recommended medication;

(d) The intended benefits of the medication;

(e) The alternatives to the recommended medication, if in the opinion of the treating practitioner those alternatives are available and comparable in effectiveness;

(f) The predicted medical/psychiatric consequences of not accepting the recommended medication; and

(g) That consent may be refused, withheld or withdrawn at any time.

(2) The treating practitioner shall ask the inmate or guardian if they would like additional information concerning the recommended medication, and shall provide such information on request.

(3) The treating practitioner recommending administration of a psychotropic medication shall document by notation in the inmate's treatment record:

(a) That the information required in section (1) of this rule was explained; and

(b) Whether the inmate or guardian explicitly consented, refused, or withheld consent; and

(c) Whether the inmate or guardian requested and received additional information.

(4) Psychotropic medications may not be administered to an inmate who has been found legally incapacitated without the consent of the guardian, except in the case of an emergency.

(5) Reports of Progress: Upon request, an inmate or guardian shall be informed of the progress of the inmate during the administration of psychotropic medications.

Stat. Auth.: ORS 179.040, ORS 423.020, ORS 423.030, ORS 423.075 & ORS 430.021
Stats. Implemented: ORS 179.040, ORS 423.020, ORS 423.030, ORS 423.075 & ORS 430.021
Hist.: CD 8-1995, f. 4-24-95, cert. ef. 5-1-95

291-064-0050

Consent Options - Exceptions to Informed Consent

(1) Inmates deemed able to consent pursuant to OAR 291-064-0030 may:

(a) Consent to voluntary administration;

(b) Withhold consent for up to 48 hours for the purpose of obtaining additional information;

(c) Refuse consent; or

(d) At any time withdraw consent previously given.

(2) Any consent, refusal, or withholding of consent shall be fully documented in the inmate's treatment record, regardless of the treating practitioner's determination of capacity in OAR 291-064-0030.

(3) Inmates withholding consent for 48 hours shall be considered to have refused consent.

(4) Where consent previously given is withdrawn, the person to whom the inmate's decision is communicated shall document the withdrawal of consent and the reason for withdrawal by notation in the inmate's treatment record.

(5) Psychotropic medications shall be administered to an inmate only after first obtaining written informed consent from the inmate in the manner prescribed in these rules, except as follows:

(a) Administration of psychotropic medications to legally incapacitated inmates as provided in OAR 291-064-0040(4);

(b) Administration of psychotropic medications without informed consent in emergencies as provided in OAR 291-064-0060; and

(c) Involuntary administration of psychotropic medications for good cause as provided in OAR 291-064-0070.

Stat. Auth.: ORS 179.040, ORS 423.020, ORS 423.030, ORS 423.075 & ORS 430.021
Stats. Implemented: ORS 179.040, ORS 423.020, ORS 423.030, ORS 423.075 & ORS 430.021
Hist.: CD 8-1995, f. 4-24-95, cert. ef. 5-1-95

291-064-0060

Emergency Administration of Psychotropic Medications without Informed Consent

(1) An emergency that is sufficient to allow the administration of psychotropic medications without informed consent exists, if in the opinion of the treating practitioner, an inmate has a mental disorder and as a result of that disorder:

(a) Immediate administration of psychotropic medication is medically necessary to preserve the life or health of the inmate; or

(b) Immediate administration of psychotropic medication is medically necessary because the inmate's behavior creates a likelihood of serious physical injury to the inmate or others; or

(c) Immediate administration of psychotropic medication is medically necessary because the inmate has:

(A) Recently damaged property and caused physical injury to self or others; or

(B) Recently expressed and acted upon an intent to cause serious physical injury to self or others by damaging property; or

(C) Recently demonstrated behavior or thinking which, in examining the inmate's prior medical history, is associated with a pattern of behavior leading to such property damage or physical injury to self or others.

(2) If an emergency exists, the treating practitioner may administer psychotropic medications to an inmate without first obtaining the inmate's written informed consent provided:

(a) The specific nature of the emergency and all procedures used to cope with the emergency are fully documented in the inmate's treatment record; and

(b) An effort has been made to contact the legal guardian of a legally incapacitated inmate prior to the administration of psychotropic medications.

(c) If the treating practitioner is not a mental health prescriber, consultation with the chief medical officer or his/her designee shall occur within 12 hours of the emergency

(3) Within 72 hours after the emergency administration of psychotropic medications, the treating practitioner shall review the treatment plan and may implement a revised treatment plan.

(4) The administration of psychotropic medications in an emergency situation may not continue for more than 72 hours.

(5) If, in the opinion of the treating practitioner, involuntary administration of psychotropic medications beyond 72 hours is medically necessary, the treating practitioner must:

(a) Obtain the inmate's written informed consent, or

(b) Determine that good cause for recommending involuntary administration exists as provided in OAR 291-064-0070, and

(c) Refer the determination of good cause for review as provided in OAR 291-064-0080.

(6) Within seven days of a determination that good cause exists for involuntary administration of medications subsequent to an emergency, the independent examining physician shall review that determination as provided in OAR 291-064-0090 to 291-064-0120.

Stat. Auth.: ORS 179.040, 423.020, 423.030, 423.075 & 430.021
Stats. Implemented: ORS 179.040, 423.020, 423.030, 423.075 & 430.021
Hist.: CD 8-1995, f. 4-24-95, cert. ef. 5-1-95; DOC 9-2003(Temp), f. & cert. ef. 5-19-03 thru 11-15-03; Administrative correction 11-17-03; DOC 16-2003, f. & cert. ef. 12-2-03

291-064-0070

Good Cause for Involuntary Administration of Psychotropic Medications to Inmates

Good cause exists for recommending involuntary administration of psychotropic medications if, in the opinion of the treating practitioner:

(1) The inmate is suffering from a mental disorder and as a result of the disorder:

(a) The inmate is gravely disabled; or

(b) The inmate's behavior creates a likelihood of serious harm to self or others; and

(2) The inmate:

(a) Is deemed not competent to give informed consent to administration of psychotropic medications as provided in OAR 291-064-0030; or

(b) Has refused to give informed consent to the administration of psychotropic medications; and

(3) The use of psychotropic medications is clinically indicated for:

(a) Restoring, or preventing deterioration of the inmate's mental or physical health; or

(b) Alleviating extreme suffering; or

(c) Saving or extending the inmate's life; and

(4) Psychotropic medications are the most appropriate treatment for the inmate's condition according to current clinical practice; and

(5) Other less intrusive procedures have been considered and the reasons for rejecting those procedures have been documented in the inmate's treatment record; and

(6) The treating practitioner attempted to first obtain the inmate's written informed consent.

Stat. Auth.: ORS 179.040, ORS 423.020, ORS 423.030, ORS 423.075 & ORS 430.021
Stats. Implemented: ORS 179.040, ORS 423.020, ORS 423.030, ORS 423.075 & ORS 430.021
Hist.: CD 8-1995, f. 4-24-95, cert. ef. 5-1-95

291-064-0080

Review of Treating Practitioner's Determination of Good Cause by an Independent Examining Physician

(1) Prior to the involuntary administration of psychotropic medications for good cause, the treating practitioner shall refer his or her recommendation for review to an independent examining physician who will convene a medication review hearing.

(2) The hearing may be held no more than ten days after the treating practitioner submits a determination that good cause exists.

Stat. Auth.: ORS 179.040, ORS 423.020, ORS 423.030, ORS 423.075 & ORS 430.021
Stats. Implemented: ORS 179.040, ORS 423.020, ORS 423.030, ORS 423.075 & ORS 430.021
Hist.: CD 8-1995, f. 4-24-95, cert. ef. 5-1-95

291-064-0090

Notice of Hearing Required

Inmates subject to the involuntary administration process shall be given written notice at least 24 hours in advance of the hearing by the independent examining physician. The notice shall include:

(1) The date and time of the hearing;

(2) The inmate's diagnosis;

(3) A statement of the clinical basis for the diagnosis;

(4) A statement of the clinical basis for the determination that involuntary administration of psychotropic medications is in the inmate's medical interest; and

(5) An explanation of the inmate's rights.

Stat. Auth.: ORS 179.040, ORS 423.020, ORS 423.030, ORS 423.075 & ORS 430.021
Stats. Implemented: ORS 179.040, ORS 423.020, ORS 423.030, ORS 423.075 & ORS 430.021
Hist.: CD 8-1995, f. 4-24-95, cert. ef. 5-1-95

291-064-0100

Inmate Rights

(1) Inmate rights during the hearing process include:

(a) The right, upon request, to discontinue emergency medications administered pursuant to OAR 291-064-0060 for 24 hours preceding the hearing and until the hearing adjourns;

(b) The right to be present during the hearing;

(c) The right to be heard in person and to present documentary evidence;

(d) The right to present testimony through witnesses and to cross-examine witnesses that are called by the Department;

(e) The right to an advisor to assist in the articulation and presentation of the inmate's argument at the hearing;

(f) The right to the creation of a record of the hearing;

(g) The right to appeal the decision of the independent examining physician to the chief medical officer as provided in this rule; and

(h) The right to retain counsel for the hearing at his/her own expense.

(2) Assignment of Advisor:

(a) A Health Services staff member shall be assigned to act as the inmate's advisor in the hearing process;

(b) In assisting the inmate to articulate their objection to the recommended medications, the advisor shall:

(A) Inform the inmate of his/her right to retain counsel for the hearing at his/her own expense;

(B) Interview the inmate and discuss the psychiatric issues involved, and the inmate's options;

(C) Assist the inmate in articulating a list of witnesses and questions for witnesses as required in section (3) of this rule;

(D) Review the inmate's treatment record, including records of efforts made to obtain informed consent;

(E) Be provided a copy of administrative rules OAR 291-064-0010 through 291-064-0140;

(F) Be provided an opportunity to review any other evidence presented by the Department upon which the recommendation for involuntary administration of medications is based;

(G) Be competent to understand and interpret the inmate's rights and the hearing process;

(H) Have an understanding of the psychiatric diagnosis and issues that the case may present; and

(I) Appear with the inmate at the hearing before the independent examining physician.

(3) If the inmate wishes to present or cross-examine witnesses, he/she must provide a written request to the independent examining physician prior to the hearing, listing the names of requested witnesses and the questions to be asked of each witness.

(4) The inmate's right to be present at the hearing may be limited because of his/her medical condition or because of other specific reasons relating to the interest of institutional safety and security.

(5) Reasons for the limitation of the right to present and cross-examine witnesses include, but are not limited to:

(a) Irrelevance;

(b) Redundancy;

(c) Other specific reasons relating to the interest of institutional safety and security.

(6) The reasons for any limitation of the inmate's rights shall be specified orally at the hearing and in writing as part of the final decision.

Stat. Auth.: ORS 179.040, ORS 423.020, ORS 423.030, ORS 423.075 & ORS 430.021
Stats. Implemented: ORS 179.040, ORS 423.020, ORS 423.030, ORS 423.075 & ORS 430.021
Hist.: CD 8-1995, f. 4-24-95, cert. ef. 5-1-95

291-064-0110

Scope of Review

(1) The independent examining physician shall:

(a) Review the inmate's treatment record, including the records of efforts made to obtain informed consent;

(b) Discuss the matter with the inmate and witnesses;

(c) Review the evidence presented by the Department upon which the recommendation for involuntary administration of medications is based; and

(d) Consider additional information, if any, presented at the time of the review by the inmate, the advisor, the Department, or witnesses.

(2) The record of the hearing shall be the documents and statements relied on by the independent examining physician as noted in his/her report. Copies of all documents shall be made a part of the inmate's treatment record.

Stat. Auth.: ORS 179.040, ORS 423.020, ORS 423.030, ORS 423.075 & ORS 430.021
Stats. Implemented: ORS 179.040, ORS 423.020, ORS 423.030, ORS 423.075 & ORS 430.021
Hist.: CD 8-1995, f. 4-24-95, cert. ef. 5-1-95

291-064-0120

Determination of Independent Examining Physician

(1) In each hearing the independent examining physician shall determine:

(a) Whether the treatment record contains a sound medical diagnosis supported by sufficient clinical documentation;

(b) The capacity of the inmate to give informed consent as provided in OAR 291-064-0030;

(c) The reasons for the inmate's refusal or withdrawal of consent, if the inmate has refused or withdrawn consent;

(d) Whether the inmate's behavior constitutes good cause for involuntary administration of psychotropic medications as provided in OAR 291-064-0070;

(e) Whether the reasons given for rejecting less intrusive procedures are medically sound; and

(f) Whether the involuntary administration of psychotropic medication is in the inmate's medical interest.

(2) The independent examining physician shall not approve involuntary administration of psychotropic medications unless it is determined that good cause exists and the involuntary administration of psychotropic medications is in the inmate's medical interest.

(3) The independent examining physician will prepare a written report of his/her decision containing a summary of evidence presented and specific reasons for approving or disapproving involuntary administration of psychotropic medications. This report will be provided to:

(a) The chief medical officer of the facility;

(b) The inmate for whom involuntary administration of psychotropic medications is recommended; and

(c) The treating practitioner.

(4) A copy of the independent examining physician's report will be made part of the inmate's treatment record.

(5) Approval of the involuntary administration of psychotropic medications shall be effective for 180 days.

Stat. Auth.: ORS 179.040, ORS 423.020, ORS 423.030, ORS 423.075 & ORS 430.021
Stats. Implemented: ORS 179.040, ORS 423.020, ORS 423.030, ORS 423.075 & ORS 430.021
Hist.: CD 8-1995, f. 4-24-95, cert. ef. 5-1-95

291-064-0130

Appeal of the Independent Examining Physicians Determination

(1) The inmate may appeal the determination of the independent examining physician in writing to the facility chief medical officer within 24 hours after the determination has been communicated to the inmate.

(2) Upon receipt of the inmate's request for appeal, the chief medical officer shall review the appeal and the report of the independent examining physician.

(3) Except in emergencies as provided in this rule, medications will not be involuntarily administered until the chief medical officer has decided the appeal.

(4) The chief medical officer shall approve or disapprove the independent examining physician's decision within seven days of receiving the inmate's request for appeal.

(5) Written notice of the chief medical officer's decision on appeal shall be provided to the inmate and made part of the inmate's treatment record.

(6) In the absence of the chief medical officer the notice of appeal will be given to the Department's clinical director who shall either decide the appeal or delegate that decision to the chief medical officer of another Department of Corrections facility.

Stat. Auth.: ORS 179.040, ORS 423.020, ORS 423.030, ORS 423.075 & ORS 430.021
Stats. Implemented: ORS 179.040, ORS 423.020, ORS 423.030, ORS 423.075 & ORS 430.021
Hist.: CD 8-1995, f. 4-24-95, cert. ef. 5-1-95

291-064-0140

Periodic Review

(1) When psychotropic medications are involuntarily administered pursuant to this rule, the treating practitioner shall:

(a) Submit a progress report to the facility chief medical officer every 30 days; and

(b) Place a copy of the progress report in the inmate's treatment record.

(2) The progress report will document the inmate's response to medications, including the inmate's attitude toward the medication and any changes in medication or side effects, and will indicate the treating practitioner's prognosis of the inmate's need for medications.

(3) Discontinuation of medications or voluntary consent to medications will be included in the progress report.

(4) The facility chief medical officer shall submit to the clinical director an annual report describing all involuntary administration of psychotropic medications.

Stat. Auth.: ORS 179.040, ORS 423.020, ORS 423.030, ORS 423.075 & ORS 430.021
Stats. Implemented: ORS 179.040, ORS 423.020, ORS 423.030, ORS 423.075 & ORS 430.021
Hist.: CD 8-1995, f. 4-24-95, cert. ef. 5-1-95

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