MH Rights and Laws

Right to Refuse Treatment/Medication in an Institutional Setting

N.C. Gen. Stat. § 122C-57 (2007)

 

All Patients Have the Following Rights:

  • You have the right to receive age-appropriate treatment.
  • An individual written treatment or habilitation plan implemented by the facility within 30 days of being admitted.
  • You and your legally responsible person will be told in advance of all potential risks and alleged benefits of the treatment choices.
  • You have the right to be free from unnecessary or excessive medication.
    • Medication can’t be used for punishment, discipline, or staff convenience
    • Medication must be administered in accordance with accepted medical standards and only when a dr. orders it as document in patient’s records
  • Electroshock therapy, experimental drugs/procedures, or surgery (other than emergency surgery) can’t be performed without your express and informed written consent, your legally responsible person, a health care agent named pursuant to a valid power of attorney, OR your consent express in a valid advance instruction for mental health treatment.
    • This consent can be withdrawn at any time by the person who gave consent.

 

What is an emergency situation?

An emergency situation is a situation in which you are in imminent danger of causing physical harm to yourself or other people unless there is rapid intervention by hospital employees in the form of giving you psychotropic medication. 10A NCAC 28D .0401.

 

What happens if hospital staff wants to give me medication in an emergency situation?

  • If you refuse psychotropic medication during an emergency situation, the Director of Clinical Services may authorize administering the medication after s/he certifies in writing that the medication is essential in order to prevent you from causing harm to yourself or other people. If it’s impossible for the Director to comply with this procedure without jeopardizing your life or the lives of others, then the medication can be given with a physician’s written or verbal order.
  • The physician who authorizes the use of the medication must immediately document this authorization, including a description of the circumstances as to why the medication was necessary and the reasons why a less-intrusive alternative wouldn’t have been adequate.
  • Within 24 hours, or when imminent danger has passed, or when the physician’s order expires—whichever comes first—the use of the medication will be re-evaluated by the physician. After this re-evaluation, the physician can continue to administer the medication in an emergency, provided that the Clinical Director gives written approval.
  • If 3 or more emergency situations in which psychotropic medication has to be administered against your will occur within a 30 day period, then your treatment team must review your treatment/habilitation plan. Your treatment team must also develop a plan to respond to future crisis situations.
10A NCAC 28D .0401
 
 
What does the doctor have to put in my record when I am forced to take medication?
·         The doctor must document in your record that the administration of psychotropic medication against your will is in your best interest. This means:
    o   You are an imminent physical threat to yourself, other clients, or a state facility employee (and a description of this behavior is also documented);
    o   Without medication, you are incapable of participating in a treatment plan available at the facility that will give you a reasonable opportunity of improving your condition; OR   
    o   Even if there is possibly a treatment plan without psychotropic medication that will give you a realistic opportunity of improving your condition, there is a significant possibility that you will hurt yourself or others before your condition improves if medication isn’t given.
                        The doctor must also document his/her consideration of the following factors when deciding if forced medication is in your best interest:
    o   Your reasons for refusing the medication;
    o   The existence of any less intrusive treatments; and
    o   The risk involved and the severity of side effects associated with the administration of the proposed medication.

10A NCAC 28D .0402

 


Voluntary Patients

 
        You have the right to consent to or refuse any treatment offered by the facility if you are a competent adult, or if you are an incompetent
         adult and your legally responsible person refuses your treatment.
    • If you refuse treatment, then the professional determines if another treatment is possible
      • If professional finds that no other treatment is possible, then you can be discharged
      • However, your treatment team might make the determination that you are eligible for involuntary commitment.

 

*Emergency situations: Treatment or medication can be given even if you, your legally responsible person, a health care agent named in a health care power of attorney, or your advance instruction for mental health treatment refuses the treatment or medication.   Exceptions: electroshock therapy; experimental drugs or procedures; non-emergency surgery, all of which require informed written consent
 
 

 
Involuntary Patients
 
  • Treatment and/or medication can be given against your will, your legally-responsible person, a health care agent named in a health care power of attorney, or your advance instruction for mental health treatment:
    • In the event of an emergency; OR
    • When consideration of side effects is given and in the professional judgment of the treating doctor and another doctor (who is either the director of clinical services at the facility or the director’s designee) either
      • You, without benefit of the medication/treatment, are incapable of participating in any available treatment plan which will give you a realistic opportunity to improve your condition, OR
      • Without benefit of the specific treatment/medication, there is a significant possibility that you will harm yourself or others before your condition improves.

 

 

What happens when I refuse treatment and it’s not an emergency?
The attending doctor will speak to you or your legally responsible person to explain your condition, the reasons for prescribing the medication, the risks and benefits of taking the medication, and the advantages and disadvantages of other treatment options.
  1. If you still refuse:
    1. The doctor will tell you and your legally responsible person that the matter at your treatment team meeting;
    2. If your condition continues, the doctor will invite you and your legally responsible person to attend your treatment team meeting; and
    3. The doctor will suggest to you and your legally responsible person to discuss the matter with someone of your choosing (such as a relative, friend, guardian or client advocate).
10A NCAC 28D .0403
 

 

At the treatment team meeting:

  1. If you go to the treatment team meeting, then the team will try to make a treatment plan that is acceptable to both you and the treatment team. You may agree to take medication unconditionally or under certain conditions that are acceptable to the treatment team.
  2. If you don’t go to the meeting, the treatment team will review its previous recommendations and your response, and it will document their decision in your records.
  3. If the treatment team still believes that you need the medication, and you still refuse to take it, then the Director of Clinical Services or his physician designee, who isn’t a member of your treatment team, will interview you and review your record. The Director of Clinical Services may approve the administration of the medication over your objections.
  4. Your refusal will be documented in your records.
    10A NCAC 28D .0302(4-6).
 
 

Review by the Director of Clinical Services

  • Whenever the Director of Clinical Services is asked to review an order for forced medication, s/he can get an independent psychiatric consultant to evaluate your need for psychotropic medication. If the independent psychiatric consultant evaluates you, the Director must file a report in your record stating the consultant’s recommendation and why the Director did or did not decide to follow the consultant’s recommendation.
  • The Director of Clinical Services (OR his/her physician designee) shall review each week the treatment plan of each client who is refusing psychotropic medication to determine:
    • If the client is still receiving the prescribed medication;
    • If this prescribed medication is still in the best interest of the client; AND
    • If the other parts of the client’s treatment plan are being implemented.
  • The Director of Clinical Services (and not  a physician designee) shall review quarterly the treatment plan of each client who is refusing psychotropic medication to determine:
    • If the client is still receiving the prescribed medication;
    • If this prescribed medication is still in the best interest of the client; AND
    • If the other parts of the client’s treatment plan are being implemented.
    10A NCAC 28D .0403 
 

  

 

Special Populations

 

PRISONERS
 

When Treatment Can Be Given Against Your Will

  • If you are receiving inpatient mental health treatment and have a mental illness, psychotropic medication can be administered against your will if:
    • Failure to treat your illness would pose an imminent substantial threat of injury or death to you or those around you; OR
    • There is evidence that your condition is worsening and your condition would likely endanger the safety or life of you or other people, and
      • The evidence of substantial and prolonged deterioration is in your records
      • The source of this history is documented in your records
       10A NCAC 26D .1104(a)
 
What does it mean to refuse treatment?

It means that 30 minutes have passed from when medication was first offered to you and you have refused to take it. 10A NCAC 26D .1104(b).

 

What happens when I refuse medication?  

10A NCAC 26D .1104(c)

  1. The refusal is reported to your treating psychiatrist and is noted in your progress notes and medication chart.
  2. The staff will question and encourage you to take the medication. They will also ask you why you are refusing the medication, and they’ll note this in your record.
  3. Any member of the treatment team might discuss the refusal with you and will try to address your concerns about taking the medication.

 

What happens in an emergency situation?

The doctor may write an order to administer emergency forced medication, and he/she will document this in your medical record. This order will expire after 72 hours (3 full days). 10A NCAC 26D .1104(d)(1).

 

If the emergency forced medication is psychotropic drugs, then the doctor can only order them if they are:

  1. A generally accepted treatment for your condition;
  2. There’s a substantial likelihood that the drugs will reduce the signs and symptoms of your illness; AND
  3. From a therapeutic viewpoint, the proposed medication is the least intrusive treatment available.

10A NCAC 26D .1104(d)(2).

What if the emergency situation continues after 72 hours?

The attending psychiatrist can order two more emergency periods of 72 hours each, but only if another psychiatrist who isn’t involved in your treatment agrees (either in writing or verbally) that the emergency periods should be authorized.

 

After these two 72 hour periods have passed, if you refuse medication and the doctor thinks it’s still needed, then you go through the process of refusing treatment in a non-emergency situation.

       10A NCAC 26D .1104(d)(3)
 

 

REGIONAL MENTAL RETARDATION CENTERS

 

What constitutes a refusal to take psychotropic medication in this setting?

Any behavior (verbal or non-verbal) by the client, or by the client’s legally responsible person, which is judged to be an attempt to communicate an unwillingness to receive psychotropic medication. 10A NCAC 28D .0404(1)

 

*Given this population, some acts that may not necessarily constitute refusal should be considered:

  • Passivity/lack of active participation in various activities that may require physical prompting (such as hand-over-hand manipulation in order to learn a new skill or complete a particular task)
  • Spitting out a medication because it tastes or feels bad (therefore, disguising the texture/taste of a medication with “a pleasant tasting vehicle” like applesauce or pudding may not necessarily be considered forced medication)
  • Tantrums, self-injurious behavior, aggressive acts, etc. are usually not automatically judged to represent a client’s attempt to refuse medication, but in some cases these behaviors should be considered because they may be the only form of communication a client may have to express his/her refusal.
10A NCAC 28D .0404
 
 

Is it an emergency situation?

If yes, 10A NCAC 28D .0401 applies (see above).

*When a client refuses medication, the best interest test from .0402 applies (see above)

 

If it’s not an emergency situation?

When a minor/adult client/his or her legally responsible person refuses psychotropic medication in a non-emergency situation, the following procedures are required:

  • If a state employee believes the client is attempting to refuse medication, the employee will notify the client’s qualified mental retardation professional (QMRP) and the client’s internal advocate.
  • If the QMRP agrees that the client is attempting to refuse medication, then the QMRP will also notify the client’s internal advocate and will assemble the client’s treatment team (including his/her treating physician), to assess the refusal.
    • If the client is suspected of refusing medication, the treatment team will make a decision as to if the client’s behaviors (verbal and non-verbal) are true indications of a refusal. If it’s determined that the behaviors do not constitute a refusal, then authorization for the continued administration of the medication can be given.
    • If the client’s behaviors are judged to be a refusal or if the refusal originated with the competent adult client or with the client’s legally responsible person, the client (when possible or appropriate) and the legally responsible person should be invited to meet with the treatment team to resolve the issue.
    • The physician should explain the reasons for prescribing the medication, the risk and benefits of taking the medication, and the advantages and disadvantages to alternative courses of action. The treatment team will make every effort to develop a habilitation plan or a specific form of treatment that would be agreeable to the client or his legally responsible person, but is also still consistent with the treatment needs of the client.
  • If the treatment team, physician, and legally responsible person can’t come to an agreement, and the team (including the physician) still feels that the psychotropic medication is in the best interest of the client, then the issue will be referred to the State Facility Review Committee appointed by the State Facility Director.
    • This committee should have a range of professionals, including the Medical Director (or his designated physician) and Human Rights Committee representatives. The internal child advocate should be invited to represent the client’s needs, but this person should not be considered a member of the State Facility Review Committee. The Committee should not include any state facility employees that give direct services to the client refusing the medication. The confidentiality regulations of 10A NCAC 26B should be followed.
    • The State Facility Review Committee should involve the client and the client’s legally responsible person whenever appropriate in an attempt to arrive at a mutually acceptable solution.
    • If the legally responsible person and the State Facility Review Committee reach an agreement, then no further proceedings are necessary. If they don’t reach an agreement, then the State Facility Review Committee should forward its recommendations concerning any changes in treatment or support of existing treatment methods to the Center Director.
  • If the State Facility Director receives any recommendations regarding changes in treatment or support of existing treatment methods for a client who has refused psychotropic medication, and this recommendation is still unacceptable to the client’s legally responsible person, then the Center Director will have, as the last alternative, the power to discharge the client under G.S. 122C-57(d). If the Center Director discharges the patient, then the client’s legally responsible person must be provided information regarding the grievance procedure as specified in 10A NCAC 26B .0203, .0204, and .0205.
10A NCAC 28D .0404
 

 

What kind of documentation is required?

·         Every step in the procedure following a client’s refusal of medication must be documented in the client’s record.

·         The State Facility Director should maintain a statistical record of the use of psychotropic medications against a client’s will that will include (but isn’t limited to) the number of times the medication is administered to the client, the unit of like grouping, the responsible physician, and client characteristics. This record should be made available to the Division Director and Human Rights Committee on a monthly basis.

 

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