Florida Administrative Code › 65 - DEPARTMENT OF CHILDREN AND FAMILIES › 65E - Mental Health Program › Chapter 65E-5 - MENTAL HEALTH ACT REGULATION › Section 65E-5.170 - Right to Express and Informed Consent

Current through Reg. 50, No. 138; July 16, 2024
(1) Establishment of Consent.
(a) Receiving Facilities. As soon as
				possible, but in no event longer than 24 hours from entering a designated
				receiving facility on a voluntary or involuntary basis, each person shall be
				examined by the admitting physician to assess the person's ability to provide
				express and informed consent to admission and treatment. The examination of a
				minor for this purpose may be limited to the documentation of the minor's age.
				The examination of a person alleged to be incapacitated for this purpose may be
				limited to the documentation of letters of guardianship. Documentation of the
				assessment results shall be placed in the person's clinical record. The
				facility shall determine whether a person has been adjudicated as incapacitated
				and whether a guardian has been appointed by the court. If a guardian has been
				appointed by the court, the limits of the authority of the guardian shall be
				determined prior to allowing the guardian to authorize treatment. A copy of any
				court order delineating a guardian's authority to consent to mental health or
				medical treatment shall be obtained by the facility and included in the
				person's clinical record prior to allowing the guardian to give express and
				informed consent to treatment for the person.
(b) Treatment Facilities. Upon entering a
				designated treatment facility on a voluntary or involuntary basis, each person
				shall be examined by the admitting physician to assess the person's ability to
				provide express and informed consent to admission and treatment, which shall be
				documented in the person's clinical record. The examination of a person alleged
				to be incapacitated or incompetent to consent to treatment, for this purpose,
				may be limited to documenting the letters of guardianship or order of the
				court. If a person has been adjudicated as incapacitated and a guardian
				appointed by the court or if a person has been found to be incompetent to
				consent to treatment and a guardian advocate has been appointed by the court,
				the limits of authority of the guardian or guardian advocate shall be
				determined prior to allowing the guardian or guardian advocate to authorize
				treatment for the person. A copy of any court order delineating a guardian's
				authority to consent to mental health or medical treatment shall be obtained by
				the facility and included in the person's clinical record prior to allowing the
				guardian to give express and informed consent to treatment for the
				person.
(c) If the admission is
				voluntary, the person's competence to provide express and informed consent for
				admission shall be documented by the admitting physician. Recommended form
				CF-MH 3104, Feb. 05, "Certification of Person's Competence to Provide Express
				and Informed Consent, " which is incorporated by reference and may be obtained
				pursuant to Rule  65E-5.120, F.A.C., of this rule
				chapter may be used for this purpose. The completed form or other documentation
				shall be retained in the person's clinical record. Facility staff monitoring
				the person's condition shall document any observations which suggest that a
				person may no longer be competent to provide express and informed consent to
				his or her treatment. In such circumstances, staff shall notify the physician
				and document in the person's clinical record that the physician was notified of
				this apparent change in clinical condition.
(d) In the event there is a change in the
				ability of a person on voluntary status to provide express and informed consent
				to treatment, the change shall be immediately documented in the person's
				clinical record. A person's refusal to consent to treatment is not, in itself,
				an indication of incompetence to consent to treatment.
1. If the person is assessed to be competent
				to consent to treatment and meets the criteria for involuntary inpatient
				placement, the facility administrator shall file with the court a petition for
				involuntary placement. Recommended form CF-MH 3032, Feb. 05, "Petition for
				Involuntary Inpatient Placement, " which is incorporated by reference and may
				be obtained pursuant to Rule
				 65E-5.120, F.A.C., of this rule
				chapter may be used for this purpose.
2. If the person is assessed to be
				incompetent to consent to treatment, and meets the criteria for involuntary
				inpatient or involuntary outpatient placement, the facility administrator shall
				expeditiously file with the court both a petition for the adjudication of
				incompetence to consent to treatment and appointment of a guardian advocate,
				and a petition for involuntary inpatient or involuntary outpatient placement.
				Upon determination that a person is incompetent to consent to treatment the
				facility shall expeditiously pursue the appointment of a duly authorized
				substitute decision-maker that can make legally required decisions concerning
				treatment options or refusal of treatments for the person. Recommended forms
				CF-MH 3106, Feb. 05, "Petition for Adjudication of Incompetence to Consent to
				Treatment and Appointment of a Guardian Advocate, " which is incorporated by
				reference may be obtained pursuant to Rule
				 65E-5.120, F.A.C., of this rule
				chapter, and CF-MH 3032, "Petition for Involuntary Inpatient Placement, " as
				referenced in subparagraph
				 65E-5.170(1)(d) 
				1., F.A.C., or CF-MH 3130, "Petition for Involuntary Outpatient Placement, "
				which is incorporated by reference and may be obtained pursuant to Rule
				 65E-5.120, F.A.C., of this rule
				chapter may be used for this purpose.
(e) Competence to provide express and
				informed consent shall be established and documented in the person's clinical
				record prior to the approval of a person's transfer from involuntary to
				voluntary status or prior to permitting a person to consent to his or her own
				treatment if that person had been previously determined to be incompetent to
				consent to treatment. Recommended form CF-MH 3104, "Certification of Person's
				Competence to Provide Express and Informed Consent, " as referenced in
				paragraph  65E-5.170(1)(c),
				F.A.C., properly completed by a physician may be used for this
				purpose.
(f) Any guardian advocate
				appointed by a court to provide express and informed consent to treatment for
				the person shall be discharged and a notice of such guardian advocate discharge
				provided to the court upon the establishment and documentation that the person
				is competent to provide express and informed consent.
(g) If a person entering a designated
				receiving or treatment facility has been adjudicated incapacitated under
				Chapter 744, F.S., as described in Section
				 394.455(14),
				F.S., express and informed consent to treatment shall be sought from the
				person's guardian.
(h) If a person
				entering a designated receiving or treatment facility has been determined by
				the attending physician to be incompetent to consent to treatment as defined in
				Section  394.455(15),
				F.S., express and informed consent to treatment shall be expeditiously sought
				by the facility from the person's guardian advocate or health care surrogate or
				proxy.
(i) A copy of the letter of
				guardianship, court order, or advance directive shall be reviewed by facility
				staff to ensure that the substitute decision-maker has the authority to provide
				consent to the recommended treatment on behalf of the person. If the facility
				relies upon the expression of express and informed consent for person's
				treatment from a substitute decision-maker, a copy of this documentation shall
				be placed in the person's clinical record and shall serve as documentation of
				the substitute decision-maker's authority to give such consent. With respect to
				a health care proxy, where no advance directive has been prepared by the
				person, facility staff shall document in the person's clinical record that the
				substituted decision-maker was selected in accordance with the list of persons
				and using the priority set out in Section
				 765.401, F.S. When a health care
				surrogate or proxy is used, the facility shall immediately file a petition for
				the appointment of a guardian advocate.