New York Codes, Rules and Regulations › Title 14 - DEPARTMENT OF MENTAL HYGIENE › Chapter II - All Facilities › Subchapter B - INSTITUTIONAL CARE AND TREATMENT › Part 27 - QUALITY OF CARE AND TREATMENT › Section 27.9 - Surgery and certain other treatments

Current through Register Vol. 46, No. 28, July 10, 2024
Electro-convulsive therapy, surgery, major medical
					 treatment or the use of experimental drugs or procedures may be administered to
					 any patient only upon the informed consent of the patient or of a person
					 authorized to act on his or her behalf after a full and comprehensive
					 disclosure of potential benefits and the potential of harm. Aversive or noxious
					 stimuli shall not be included as part of any patient's individual service plan
					 unless all conditions for obtaining consent as otherwise set forth in this
					 section are met. Before such stimuli may be included in any service plan, such
					 procedures shall be evaluated by a suitable committee responsible for reviewing
					 and approving the efficacy and humaneness of this element of the patient's
					 service plan. Patients are presumed to have sufficient mental capacity to give
					 consent unless there are facts and substantial reasons to the contrary. The
					 following conditions shall apply:
(a)
				  If a patient is under 18 years of age, consent shall be obtained from the
				  parents or legal guardian. If no parent or legal guardian is available or if
				  such a patient having mental capacity to understand the procedure objects or
				  one of the parents objects to the proposed procedure, the director may not
				  initiate the procedure without a court order authorizing it, except in the case
				  where surgery is indicated by significant danger to life or limb of the patient
				  if the procedure is delayed.
(b) If
				  a patient is 18 years or older but in the opinion of the chief of the service
				  does not have sufficient mental capacity to give consent, authorization for the
				  procedure in question must be obtained from the spouse, a parent, an adult
				  child, or a court of competent jurisdiction. Nothing in this section shall
				  prevent the director from giving consent to surgical procedure under emergency
				  conditions where there appears to be significant danger to life or limb of the
				  patient if the procedure is delayed.
(c) If a patient is 18 years or older and has
				  sufficient mental capacity to give consent, the procedures may be initiated
				  only with the patient's consent. The patient shall have the right, upon his or
				  her request, to have a person of her or his choice present when consent is
				  sought. In cases where a patient withholds consent to a procedure necessary for
				  protection of life or limb, the director shall notify the Mental Health
				  Information Service and may apply for court authorization.
(d) If it is not clear that the patient has
				  sufficient mental capacity to give consent, an independent opinion about the
				  patient's mental capacity must be obtained from a qualified consultant who is
				  not an employee of the facility. After considering the opinion of the
				  consultant, the director will decide whether the patient does or does not have
				  the capacity to give consent and the director may then proceed in accordance
				  with the other provisions of this section. The director shall enter in the
				  patient's clinical record the reasons for this decision.
(e) Each facility director shall develop
				  standard procedures to evaluate the decisions made on the mental capacity of
				  individual patients to give consent. A qualified consultant who is not an
				  employee of the facility shall be a member of the review process.
(f) All patients who object shall have
				  recourse to the procedures for objection and appeal stipulated in section
				  27.8 
				  of this Part.