An Act Regarding Clinical Review of Certain Requests for Involuntary Mental Health Treatment
Maine Legislature, Session 123, LD 2193
Committee: Health and Human Services
Amends: 34-B MRSA §3003

Legislative Document 
No. 2193 
S.P.844 
An Act Regarding Clinical Review of Certain Requests for 
Involuntary Mental Health Treatment 
(EMERGENCY) 
February 6, 2008 
Reported by Senator BRANNIGAN of Cumberland for the Joint Standing Committee on 
Health and Human Services pursuant to Joint Order S.P. 829. 
Reference to the Committee on Health and Human Services suggested and ordered printed 
under Joint Rule 218. 
Printed on recycled paper 
JOY J. O'BRIEN 
Secretary of the Senate 
Emergency preamble. Whereas, acts and resolves of the Legislature do not 
become effective until 90 days after adjournment unless enacted as emergencies; and 
Whereas, on January 1, 2008, Public Law 2007, chapter 446 became effective, 
establishing clinical review of requests involuntary treatment for mental illness; and 
Whereas, an repeal of Public Law 2007, chapter 446, section 6 on rulemaking and 
enactment of law in place of those rules is necessary at the earliest possible time to 
establish the procedures of the clinical review panel and the rights of the patient; and 
Whereas, in the judgment of the Legislature, these facts create an emergency within 
the meaning of the Constitution of Maine and require the following legislation as 
immediately necessary for the preservation of the public peace, health and safety; now, 
therefore, 
Be it enacted by the People of the State of Maine as follows: 
Sec. 1. 34-B MRSA §3003, sub-§2, ~C, as amended by PL 2007, c. 446, § 1 and 
affected by §7, is further amended to read: 
C. Standards for informed consent to treatment, including reasonable standards and 
procedural mechanisms for determining when to treat a client absent informed 
consent, consistent with applicable law. 
The rules must include the follovling 
process:, except that involuntary treatment of involuntarily hospitalized incapacitated 
persons who are unwilling or unable to comply with treatment is allowed solely in 
accordance with the provisions of section 3861, subsection 3 or section 3864, 
subsection I-A; 
(1) 
The primary treating physician may request an order for involuntary 
treatment of a patient from a clinical revie'N panel; 
(2) A clinical review panel that consists of 2 or more professional staff who do 
not provide direct care to the patient is convened. At least one member of the 
panel must be a professionallicensed to prescribe the medications relevant to the 
patient's care; 
(3) The clinical review panel conducts the review and makes a decision on the 
request of the primary treating physician within 4 days of the request based on 
the criteria in section 3&64, subsection 7 A, paragraph B; 
(4) If the clinical review panel decides to approve the request for involuntary 
treatment, the panel enters an order of involuntary treatment in the patient's 
hospital records. An order for involuntary treatment may be made for as long as 
the period of commitment and pending any appeal; and 
(5) At any hearings or meetings pertaining to involuntaf)' treatment, the patient is 
offered the assistance of a lay advisor, rather than legal counsel; 
Sec. 2. 34-B MRS A §3861, sub-§3 is enacted to read: 
3. Involuntary treatment. Except for involuntary treatment ordered pursuant to the 
provisions of section 3864, subsection 7-A, involuntary treatment of a patient at a 
designated nonstate mental health institution or a state mental health institute who is an 
involuntarily committed patient under the provisions of this subchapter may be ordered 
and administered only in conformance with the provisions of this subsection. 
A. If the patient's primary treating physician proposes a treatment that the physician, 
in the exercise of professional judgment, believes is in the best interest of the patient 
and if the patient lacks clinical capacity to give informed consent to the proposed 
treatment and the patient is unwilling or unable to comply with the proposed 
treatment, the patient's primary treating physician shall request in writing a clinical 
review of the proposed treatment by a clinical review panel. For a patient at a state 
mental health institute, the request must be made to the superintendent of the institute 
or the designee of the superintendent. For a patient at a designated nonstate mental 
health institution, the request must be made to the chief administrative officer or the 
designee of the chief administrative officer. The request must include the following 
information: 
(1) The name of the patient, the patient's diagnosis and the unit on which the 
patient is hospitalized; 
(2) The date that the patient was committed to the institution or institute and the 
period of the court-ordered commitment; 
(3) A statement by the primary treating physician that the patient lacks capacity 
to give informed consent to the proposed treatment. The statement must include 
documentation of a 2nd opinion that the patient lacks that capacity, given by a 
professional qualified to issue such an opinion who does not provide direct care 
to the patient but who may work for the institute or institution; 
(4) 
A description of the proposed course of treatment, including specific 
medications, routes of administration and dose ranges, proposed alternative 
medications or routes of administration, if any, and the circumstances under 
which any proposed alternative would be used; 
(5) A description of how the proposed treatment will benefit the patient and 
ameliorate identified signs and symptoms of the patient's psychiatric illness; 
(6) A listing of the known or anticipated risks and side effects of the proposed 
treatment and how the prescribing physician will monitor, manage and minimize 
the risks and side effect~ 
(7) Documentation of consideration of any underlving medical condition of the 
patient that contraindicates the proposed treatment; and 
(8) Documentation of consideration of any advance health-care directive given 
in accordance with Title 18-A, section 5-802 and any declaration regarding 
medical treatment of psychotic disorders executed in accordance with section 
11001. 
B. The provisions of this paragraph apply to the appointment, duties and procedures 
of the clinical review panel under paragraph A. 
(1) 
Within one business day of receiving a request under paragraph A, the 
superintendent of a state mental health institute or chief administrative officer of 
a designated nonstate mental health institution or that person's designee shall 
appoint a clinical review panel of 2 or more licensed professional staff who do 
not provide direct care to the patient. At least one person must be a professional 
licensed to prescribe medication relevant to the patient's care and treatment. At 
the time of appointment of the clinical review panel, the superintendent of a state 
mental health institute or chief administrative officer of a designated nonstate 
mental health institution or that person's designee shall notify the following 
persons in writing that the clinical review panel will be convened: 
(a) The primary treating physician; 
(b) The director of the Office of Adult Mental Health Services within the 
department or that person's designee; 
(c) The patient's designated representative or attorney, if any; 
(d) The State's designated federal protection and advocacy agency; and 
(e) The patient. Notice to the patient must inform the patient that the clinical 
review panel will be convened and of the right to assistance from a lay 
advisor, at no expense to the patient, and the right to obtain an attorney at the 
patient's expense. The notice must include contact information for requesting 
assistance from a lay advisor, who may be employed by the institute or 
institution, and access to a telephone to contact a lay advisor must be 
provided to the patient. 
(2) Within 4 days of receiving a request under paragraph A and no less than 24 
hours before the meeting of the clinical review panel, the superintendent of a 
state mental health institute or chief administrative officer of a designated 
nonstate mental health institution or that person's designee shall provide notice of 
the date, time and location of the meeting to the patient's primary treating 
physician, the patient and any lay advisor or attorney. 
(3) The clinical review panel shall hold the meeting and any additional meetings 
as necessary, reach a final determination and render a written decision ordering 
or denying involuntary treatment. 
(a) 
At the meeting, the clinical review panel shall receive information 
relevant to the determination of the patient's capacity to give informed 
consent to treatment and the need for treatment, review relevant portions of 
the patient's medical records, consult with the physician requesting the 
treatment, review with the patient that patient's reasons for refusing 
treatment, provide the patient and any lay advisor or attorney an opportunity 
to ask questions of anyone presenting information to the clinical review panel 
at the meeting and determine whether the requirements for ordering 
involuntary treatment have been met. 
(b) All meetings of the clinical review panel must be open to the patient and 
any lay advisor or attorney, except that any meetings held for the purposes of 
deliberating, making findings and reaching final conclusions are confidential 
and not open to the patient and any lay advisor or attorney 
(c) The clinical review panel shall conduct its review in a manner that is 
consistent with the patient's rights. 
(d) Involuntary treatment may not be approved and ordered if the patient 
affinnatively demonstrates to the clinical review panel that if that patient 
possessed capacity, the patient would have refused the treatment on religious 
grounds or on the basis of other previously expressed convictions or beliefs. 
(4) The clinical review panel may approve a request for involuntary treatment 
and order the treatment if the clinical review panel finds, at a minimum: 
(a) 
That the patient lacks the capacity to make an infonned decision 
regarding treatment; 
(b) That the patient IS unable or unwilling to comply with the proposed 
treatment; 
(c) That the need for the treatment outweighs the risks and side effects; and 
(d) That the proposed treatment is the least intrusive appropriate treatment 
option. 
(5) The clinical review panel may make additional findings, including but not 
limited to findings that: 
(a) Failure to treat the illness is likely to produce lasting or irreparable hann 
to the patient; or 
(b) 
Without the proposed treatment the patient's illness or involuntary 
commitment may be significantly extended without addressing the symptoms 
that cause the patient to pose a likelihood of serious hann. 
(6) 
The clinical review panel shall document its findings and conclusions, 
including whether the potential benefits of the proposed treatment outweigh the 
potential risks. 
C. The provisions of this paragraph govern the rights of a patient who is the subject 
of a clinical review panel under paragraph A. 
(1) The patient is entitled to the assistance of a lay advisor without expense to 
the patient. The patient is entitled to representation by an attorney at the patient's 
expense. 
(2) The patient may review any records or documents considered by the clinical 
review panel. 
(3) The patient may provide infonnation orally and in writing to the clinical 
review panel and may present witnesses. 
(4) The patient may ask questions of any person who provides infonnation to the 
clinical review panel. 
(5) The patient and any lay advisor or attorney may attend all meetings of the 
clinical review panel except for any private meetings authorized under paragraph 
B, subparagraph 3, division (b). 
D. 
If the clinical review panel under paragraph A approves the request for 
involuntary treatment, the clinical review panel shall enter an order for the treatment 
in the patient's medical records and immediately notifY the superintendent of a state 
mental health institute or chief administrative officer of a designated nonstate mental 
health institution. The order takes effect: 
(1) For a patient at a state mental health institute, one business day from the date 
of entry of the order; or 
(2) For a patient at a designated nonstate mental health institution, one business 
day from the date of entry of the order, except that if the patient has requested 
review of the order by the director of the Office of Adult Mental Health Services 
within the department under paragraph F, subparagraph (2), the order takes effect 
one business day from the day on which the director issues a written decision. 
E. The order for treatment under this subsection remains in effect for 120 days or 
until the end of the period of commitment, whichever is sooner, unless altered by: 
(1) An agreement to a different course of treatment by the primary treating 
physician and patient; 
(2) For a patient at a designated nonstate mental health institution, modification 
or vacation of the order by the director of the Office of Adult Mental Health 
Services within the department; or 
(3) 
An alteration or stay of the order entered by the Superior Court after 
reviewing the entry of the order by the clinical review panel on appeal under 
paragraph F. 
F. The provisions of this paragraph apply to the review and appeal of an order of the 
clinical review panel entered under paragraph B. 
(l) The order of the clinical review panel at a state mental health institute is final 
agency action that may be appealed to the Superior Court in accordance with 
Rule 80C of the Maine Rules of Civil Procedure. 
(2) The order of the clinical review panel at a designated nonstate mental health 
institution may be reviewed by the director of the Office of Adult Mental Health 
Services within the department or the designee of the director upon receipt of a 
written request from the patient submitted no later than one day after the patient 
receives the order of the clinical review panel. Within 3 business days of receipt 
of the request for review, the director or designee shall review the full clinical 
review panel record and issue a written decision. The decision of the director or 
designee may affirm the order, modify the order or vacate the order. 
The 
decision of the director or designee takes effect one business day after the 
director or designee issues a written decision. The decision of the director or 
designee is final agency action that may be appealed to the Superior Court III 
accordance with Rule 80C of the Maine Rules of Ci viI Procedure. 
Sec. 3. PL 2007, c. 446, §5 is repealed. 
Emergency clause. 
In view of the emergency cited In the preamble, this 
legislation takes effect when approved. 
SUMMARY 
This bill provides a process for a clinical review panel to review and make a 
detennination regarding involuntary mental health treatment for a person who is 
involuntarily committed to a state mental health institute or a designated nonstate mental 
health institution. The bill applies the same standards for ordering involuntary treatment 
as are currently applied by the District Court when a request for involuntary treatment is 
made as part of an application for involuntary commitment under the Maine Revised 
Statutes, Title 34-B, section 3864, subsection 7-A. The bill provides for notice, a clinical 
review panel procedure and a decision by the clinical review panel. The clinical review 
panel includes at least one member who is licensed to prescribe medication relevant to the 
patient's treatment. The bill specifies patient rights, including the right of assistance by a 
lay advisor or attorney and the right to attend meetings of the clinical review panel, to 
review documents reviewed by the panel, to question persons providing infonnation to 
the panel, to present witnesses and to appeal decisions made in a designated nonstate 
mental health institution to the director of the Office of Adult Mental Health Services 
within the Department of Health and Human Services and to appeal all decisions to the 
Superior Court. 
The bill specifies that the maximum time period for an order of 
involuntary treatment is 120 days or the length of commitment, whichever is shorter, 
unless altered by review or order of the Superior Court on appeal or agreement of the 
patient's primary treating physician and the patient.