SOUTH CAROLINA DEPARTMENT OF MENTAL HEALTH
Columbia, South Carolina

OFFICE OF THE STATE COMMISSIONER OF MENTAL HEALTH DIRECTIVE NO. 772-92
(5-100)

TO:               All Organizational Components

SUBJECT:   Consent to Medical Treatment, Electroconvulsive Therapy and Neuroleptic Medications

 

I. Purpose

The purpose of this directive is to implement South Carolina Code Section 44-22-40 and Section 44-22-140 relating to obtaining consent for the provision of treatment for patients of the Department of Mental Health.

II. Definitions

A. Major medical treatment means a medical, surgical or diagnostic intervention or procedure where a general anesthetic is used or which involves significant invasions of bodily integrity requiring an incision or producing substantial pain, discomfort, debilitation, or having a significant recovery period.

B. Unable to consent means unable to appreciate the nature and implication of the patient's condition and proposed health care, to make a reasoned decision concerning the proposed health care, or to communicate that decision in an unambiguous manner.

C. Reasonably available means that a person to be contacted may be contacted with diligent efforts by the attending physician or another person acting on behalf of the attending physician.

III.  Requirement for Consent

A. Consent Required. Except as set forth in paragraphs C., D. and E. below, an adult patient believed to be in need of neuroleptic medication, electroconvulsive therapy or major medical treatment is to be consulted concerning his or her condition and an informed consent obtained prior to administering neuroleptic medication, performing electroconvulsive therapy or major medical treatment. (For treatment of minors, see paragraph VI.) If it is determined and certified by two licensed physicians, each of whom has examined the patient, that the patient is unable to consent, -informed consent for the neuroleptic medication, major medical treatment or electroconvulsive therapy shall be obtained from a substitute decision-maker acting on the patient's behalf (see paragraph V. below).

B. Informed Consent. To constitute informed consent, adequate information must be provided to the patient or substitute decision-maker. What constitutes adequate information is a medical determination partly dependent upon the circumstances of each individual patient. The -scope of the physician's duty is measured by what information a reasonable medical practitioner in the same branch of medicine would supply the patient or substitute decision-maker under the same or similar circumstances.

C. Emergency Exception. Major medical treatment and neuroleptic medication may be provided without consent to a patient who is unable to consent, if the delay in locating the substitute decision-maker presents a substantial risk of death, serious permanent disfigurement, loss or impairment of functioning of a bodily member or organ, or some other serious threat to the patient's health. The circumstances justifying rendering the treatment without consent shall be documented in the patient's medical record.

D. Exception When No Available Substitute. Major medical treatment, neuroleptic medication or electroconvulsive therapy may be provided without consent to a patient who is unable to consent when there is no substitute decision-maker reasonably available and willing to be consulted (i.e., the patient has no close relatives, or the relatives cannot be located, or no relative is willing to make decisions for the patient) and the care is necessary for the relief of suffering or restoration of bodily function or to preserve the life, health, or bodily integrity of the patient. The circumstances justifying rendering the treatment without consent shall be documented in the patient's medical record.

E. Exception for Neuroleptics. In the event of a refusal of consent to the administration of neuroleptic medication, referral should be made to the SCDMH Directive entitled "Refusal of Medication by Patients in Mental Health Facilities," which outlines the circumstances in which medication may be administered over the objections of an involuntarily committed patient.

IV. Determination of Inability to Consent

Unless there has previously been a judicial determination that the patient is an incapacitated person ' the patient's inability to consent shall be certified by two licensed physicians, each Of whom has examined the patient. (Note: An order for involuntary commitment is not a judicial determination of incapacity.)

A. In certifying that a patient is unable to consent, a physician shall state his or her opinion as to each of the following:

1. The cause and nature of the inability to consent (i.e., mental illness, physical illness, etc.);

2. The extent of the inability to consent (i.e., unable to make a reasoned decision concerning the proposed health care, unable to communicate decisions in an unambiguous manner, etc.); and

3. The probable duration of the inability to consent (i.e., permanent, until the patient has regained consciousness, etc.).

B. Certification of the patient's inability to consent may be accomplished in a detailed progress note or by use of the SCDMH Form entitled "Certification of Inability to Consent. "

C. In an emergency, the patient's inability to consent may be certified by the clinician who is responsible for the care of the patient, if the clinician enters in the patient's record a statement that the delay occasioned by obtaining certification from two licensed physicians-would be detrimental to the patient's health.

V. Determination of Substitute Decision-Maker

If the patient has been adjudicated incapacitated or if it is determined and certified by two licensed physicians that the patient is unable to consent, informed consent for the major medical treatment, neuroleptic medication or electroconvulsive therapy shall be sought from a substitute decision-maker acting on the patient's behalf, in the following order of priority:

1. A guardian appointed by the Probate Court pursuant to the procedures of the South Carolina Probate Code, if the decision is within the scope of the guardianship;

2. An attorney-in-fact appointed by the patient in a durable Power of Attorney executed pursuant to South Carolina law, if the decision is within the scope of such individual's authority;

3. The spouse of the patient, unless the spouse and the patient are formally separated by written agreement or court order;

4. A parent or adult child of the patient;

5.  An adult sibling, grandparent or adult grandchild of the patient;

6. Any other adult relative by blood or marriage who is reasonably believed by the attending physician to have a close personal relationship with the patient.

B. Where there is more than one individual at any level of priority, it is not necessary to contact or consult all of such persons. The attending physician may accept either the decision of less than all the members of the category or attempt to contact all members of the category, depending on the seriousness of the patient's condition, the proposed treatment and other relevant circumstances. The physician is to use his or her best judgment in making this decision.

In the event of a disagreement between individuals at the same level of priority, the physician may contact the Office of General Counsel.

C. Disqualification of Decision-makers. In the following circumstances a person shall not be given priority to make health care decisions for a patient unable to consent. In these situations, the disqualified individual must be skipped, and the decision made by the person who is next in order of priority.

1. If the person is not reasonably available, is unwilling to make health care decisions for the patient, or lacks the capacity to make the decision.

2. If the physician or other health care professional responsible for the patient's care has actual knowledge that the patient, before becoming incapacitated, did not want the person involved in decisions concerning his care. This provision does not permit skipping a patient's guardian, attorney-in-fact or spouse.

3. If the person is not immediately available and the delay caused by attempting to locate the person would present a substantial risk of death, serious permanent disfigurement, loss or impairment of the functioning of a bodily member or organ, or other serious threat to the health of the patient.

D. Temporary Incapacity. Substitute decision-makers are not authorized to make health care decisions on behalf of a patient if the patient's incapacity is temporary and the delay occasioned by postponing treatment until the patient regains the ability to make decisions on his own behalf will not result in significant detriment to his health.

E. Contrary Instructions or Religious Beliefs of Patient. The law does not authorize provision of care, either pursuant to a substitute's decision or in the circumstances where care may be provided without consent, under the following circumstances:

1. If the attending physician or other health care professional responsible for the care of the patient has actual knowledge that the health care is contrary to the patient's instructions.

a. The instructions must be unambiguous and uncontradicted.

b. The instructions must have been expressed at a time when the patient was able to consent.

2. If the physician or other health care professional responsible for the patient's care has actual knowledge that the particular care is contrary to the patient's religious beliefs. This provision does not apply, however, if the patient, while able to consent, has stated that he or she would want to receive the particular care notwithstanding his or her religious beliefs.

VI. Treatment of Minors

For purposes of this directive minors shall include any person under the age of eighteen (18) years of age.

A. Minors sixteen (16) or seventeen (17) years of are.

A minor sixteen or seventeen years of age believed to be in need of neuroleptic medication or major medical treatment is to be consulted concerning his or her condition and an informed consent obtained prior to administering neuroleptic medication or performing major medical treatment.

1. In the case of neuroleptic medication, it is recommended but not required that the consent of the child's parent or legal guardian also be obtained.

2. In the case of major medical treatment, the consent of the child's parent or legal guardian is required, unless in the opinion of the physician providing the proposed treatment and one consulting physician the treatment is essential to the health or life of such child.

3. In the event the child is determined to be unable to consent, informed consent shall be obtained from a substitute decision-maker acting on the child's behalf in the following order of priority:

a. legal guardian, if any;

b. legal custodian, if consent to medical treatment is within the scope of the custodian's legal authority;

c. spouse, if child was legally married;

d. parent;

e. an adult sibling or grandparent of the patient;

f. any other adult relative by blood or marriage who is reasonably believed by the attending physician to have a close personal relationship with the patient.

B. Minors fifteen (15) years of age or younger. A minor fifteen years of age or younger believed to be in need of neuroleptic medication or major medical treatment is legally unable to consent. Prior to administering neuroleptic medication or performing major medical treatment a substitute decision-maker is to be consulted and an informed consent obtained.

A substitute decision-maker is to be consulted in the following order of priority:

1. legal guardian, if any;

2. legal custodian, if consent to medical treatment is within the scope of the custodian's legal authority;

3. parent;

4. an adult sibling or grandparent of the patient;

5.  any other adult relative by blood or marriage who is reasonably believed by the attending physician to have a close personal relationship with the patient.

C. Exceptions for emergencies, no available substitute or refusal of neuroleptics.   Paragraphs III. C., D. and E. above are applicable when providing treatment to minors.

VII. Documentation of Consent

If the patient or substitute decision-maker is in agreement with the proposed major medical treatment, neuroleptic medication or electroconvulsive therapy, the consent shall be appropriately documented.

A. Consent to major medical treatment shall be documented on the SCDMH Form entitled "Request for Administration of Anesthesia and for Performance of Operations and Other Procedures." The counseling . physician will sign the certification of said form attesting to the fact of having counseled the patient (or substitute decision-maker acting on the patient's behalf) as to the nature of the proposed procedure, the attendant risks and intended results. The counseling physician shall also prepare a progress note in the patient's medical record, summarizing the meeting during which the consent was obtained.

B. Consent to electroconvulsive therapy shall be documented on SCDMH Form entitled "Consent to Electroconvulsive Therapy."

C. Consent to neuroleptic medication shall be documented on the SCDMH Form entitled "Consent for Neuroleptic Medication," or "Consent or Denial of Consent to Use Neuroleptic Medication in Patients with Tardive Dyskinesia," as appropriate, or upon substantially similar forms which may be developed by the facility to address the particular needs of their patients.

The patient (or substitute decision-maker consenting on the patient's behalf) shall be requested to sign the appropriate form, before a witness, indicating their consent to the procedure identified in the form. The witness should then sign the form. If the patient has given informed consent orally, but is physically unable to execute the form, another individual may sign the form at the patient's direction. The individual so doing shall indicate the fact of the substituted signature.

Except when obtaining consent for electroconvulsive therapy, if the individual whose consent is being sought is a substitute decision-maker who is not present, the consent process may take place over the telephone. In such circumstances, the telephone conversation between the counseling physician and individual whose consent is being given shall be "witnessed" by a social worker, nurse or another physician who shall listen to the conversation on an extension. Precautions shall be taken to ensure that the individual whose consent is being sought is, in fact, the individual being spoken to on the telephone. A detailed summary of the entire telephone consent process, including the precautions which were taken to confirm the identity of the individual, shall be entered in the patient's medical record in a progress note and signed by the counseling physician and witness.

This directive rescinds and replaces SCDMH Directive No. 375-75, "Electroconvulsive Therapy," and SCDMH Directive No. 703-87, "Consent Forms for Neuroleptic Medications."

 

                                                                                        Joseph J. Bevilacqua
                                                                                                      Joseph J. Bevilacqua, Ph.D.
                                                                                       State Commissioner of Mental Health

Date: DEC 03 1992