GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1997

 

 

SESSION LAW 1998-198

SENATE BILL 1287

 

 

AN ACT TO CLARIFY THE LAW REGARDING HEALTH CARE POWERS OF ATTORNEY AND ADVANCE INSTRUCTION FOR MENTAL HEALTH TREATMENT BASED ON RECOMMENDATIONS OF THE JOINT LEGISLATIVE HEALTH CARE OVERSIGHT COMMITTEE.

 

The General Assembly of North Carolina enacts:

 

Section 1.  Article 3 of Chapter 32A reads as rewritten:

"ARTICLE 3.

"Health Care Powers of Attorney.

"§ 32A-15.  General purpose of this Article.

(a)       The General Assembly recognizes as a matter of public policy the fundamental right of an individual to control the decisions relating to his or her medical care, and that this right may be exercised on behalf of the individual by an agent chosen by the individual.

(b)       The purpose of this Article is to establish an additional, nonexclusive method for an individual to exercise his or her right to give, withhold, or withdraw consent to medical treatment treatment, including mental health treatment, when the individual lacks sufficient understanding or capacity to make or communicate health care decisions.

(c)       This Article is intended and shall be construed to be consistent with the provisions of Article 23 of Chapter 90 of the General Statutes provided that in the event of a conflict between the provisions of this Article and Article 23 of Chapter 90, the provisions of Article 23 of Chapter 90 control.  If no declaration has been executed by the principal as provided in G.S. 90-321 that expressly covers the principal's present condition and if the health care agent has been given the specific authority in a health care power of attorney to authorize the withholding or discontinuing of life-sustaining procedures when the principal is in the present condition, these procedures may be withheld or discontinued as provided in the health care power of attorney upon the direction and under the supervision of the attending physician.  In this case, G.S. 90-322 does not apply.

(d)       This Article is intended and shall be construed to be consistent with the provisions of Part 3 of Article 16 of Chapter 130A of the General Statutes.  In the event of a conflict between the provisions of this Article and Part 3 of Article 16 of Chapter 130A, the provisions of Part 3 of Article 16 of Chapter 130A control.

"§ 32A-16.  Definitions.

As used in this Article, unless the context clearly requires otherwise, the following terms have the meanings specified:

(1)       'Health care' means any care, treatment, service, or procedure to maintain, diagnose, treat, or provide for the principal's physical or mental health or personal care and comfort including, life-sustaining procedures.  'Health care' includes mental health treatment as defined in subdivision (8) of this section.

(2)       'Health care agent' means the person appointed as a health care attorney-in-fact.

(3)       'Health care power of attorney' means a written instrument, signed in the presence of two qualified witnesses, and acknowledged before a notary public, pursuant to which an attorney-in-fact or agent is appointed to act for the principal in matters relating to the health care of the principal, and which substantially meets the requirements of this Article.

(4)       'Life-sustaining procedures' are those forms of care or treatment which only serve to artificially prolong the dying process and may include mechanical ventilation, dialysis, antibiotics, artificial nutrition and hydration, and other forms of treatment which sustain, restore or supplant vital bodily functions, but do not include care necessary to provide comfort or to alleviate pain.

(5)       'Principal' means the person making the health care power of attorney.

(6)       'Qualified witness' means a witness in whose presence the principal has executed the health care power of attorney, who believes the principal to be of sound mind, and who states that he (i) is not related within the third degree to the principal nor to the principal's spouse, (ii) does not know nor have a reasonable expectation that he would be entitled to any portion of the estate of the principal upon the principal's death under any existing will or codicil of the principal or under the Intestate Succession Act as it then provides, (iii) is not the attending physician or mental health treatment provider of the principal, nor an employee of the attending physician, physician or mental health treatment provider, nor an employee of a health facility in which the principal is a patient, nor an employee of a nursing home or any group-care home in which the principal resides, and (iv) does not have a claim against any portion of the estate of the principal at the time of the principal's execution of the health care power of attorney.

(7)       'Advance instruction for mental health treatment' or 'advance instruction' means a written instrument as defined in G.S. 122C-72(1) pursuant to which the principal makes a declaration of instructions, information, and preferences regarding mental health treatment.

(8)       'Mental health treatment' means the process of providing for the physical, emotional, psychological, and social needs of the principal for the principal's mental illness.  'Mental health treatment' includes, but is not limited to, electroconvulsive treatment, treatment of mental illness with psychotropic medication, and admission to and retention in a facility for care or treatment of mental illness.

"§ 32A-17.  Who may make a health care power of attorney.

Any person having understanding and capacity to make and communicate health care decisions, who is 18 years of age or older, may make a health care power of attorney.

"§ 32A-18.  Who may act as a health care attorney-in-fact.

Any competent person who is not engaged in providing health care to the principal for remuneration, and who is 18 years of age or older, may act as a health care agent.

"§ 32A-19.  Extent of authority; limitations of authority.

(a)       A principal, pursuant to a health care power of attorney, may grant to the health care agent full power and authority to make health care decisions to the same extent that the principal could make those decisions for himself or herself if he or she had understanding and capacity to make and communicate health care decisions, including without limitation, the power to authorize withholding or discontinuing life-sustaining procedures. procedures and the power to authorize the giving or withholding of mental health treatment.  A health care power of attorney may also contain or incorporate by reference any lawful guidelines or directions relating to the health care of the principal as the principal deems appropriate.

(b)       A health care power of attorney may incorporate or be combined with an advance instruction for mental health treatment prepared pursuant to Part 2 of Article 3 of Chapter 122C of the General Statutes.  A health care agent's decisions about mental health treatment shall be consistent with any statements the principal has expressed in an advance instruction for mental health treatment if one so exists, and if none exists, shall be consistent with what the agent believes in good faith to be the manner in which the principal would act if the principal did not lack sufficient understanding or capacity to make or communicate health care decisions.  A health care agent is not subject to criminal prosecution, civil liability, or professional disciplinary action for any action taken in good faith pursuant to an advance instruction for mental health treatment.

(b)(c)  A health care power of attorney may authorize the health care agent to exercise any and all rights the principal may have with respect to anatomical gifts, the authorization of any autopsy, and the disposition of remains.

(c)(d)  A health care power of attorney may contain, and the authority of the health care agent shall be subject to, the specific limitations or restrictions as the principal deems appropriate.

(d)(e)  The powers and authority granted to the health care agent pursuant to a health care power of attorney shall be limited to the matters addressed in it, and, except as necessary to exercise such powers and authority relating to health care, shall not confer any power or authority with respect to the property or financial affairs of the principal.

(e)(f)   This Article shall not be construed to invalidate a power of attorney that authorizes an agent to make health care decisions for the principal, which was executed prior to October 1, 1991.

(g)       A health care power of attorney does not limit any authority in Article 5 of Chapter 122C of the General Statutes either to take a person into custody or to admit, retain, or treat a person in a facility.

"§ 32A-20.  Effectiveness and duration; revocation.

(a)       A health care power of attorney shall become effective when and if the physician or physicians or, in the case of mental health treatment, physician or eligible psychologist as defined in G.S. 122C-3(13d), designated by the principal determine in writing that the principal lacks sufficient understanding or capacity to make or communicate decisions relating to the health care of the principal, and shall continue in effect during the incapacity of the principal.  The determination shall be made by the principal's attending physician or eligible psychologist if the physician or physicians or eligible psychologist designated by the principal is unavailable or is otherwise unable or unwilling to make this determination or if the principal failed to designate a physician or physicians or eligible psychologist to make this determination.  A health care power of attorney may include a provision that, if the principal does not designate a physician for reasons based on his religious or moral beliefs as specified in the health care power of attorney, a person designated by the principal in the health care power of attorney may certify in writing, acknowledged before a notary public, that the principal lacks sufficient understanding or capacity to make or communicate decisions relating to his health care.  The person so designated must be a competent person 18 years of age or older, not engaged in providing health care to the principal for remuneration, and must be a person other than the health care agent.

(b)       A health care power of attorney is revoked by the death of the principal.  A health care power of attorney may be revoked by the principal at any time, so long as the principal is capable of making and communicating health care decisions.  The principal may exercise this right of revocation by executing and acknowledging an instrument of revocation, by executing and acknowledging a subsequent health care power of attorney, or in any other manner by which the principal is able to communicate an intent to revoke.  This revocation becomes effective only upon communication by the principal to each health care agent named in the revoked health care power of attorney and to the principal's attending physician. physician or eligible psychologist.

(c)       The authority of a health care agent who is the spouse of the principal shall be revoked upon the entry by a court of a decree of divorce or separation between the principal and the health care agent; provided that if the health care power of attorney designates a successor health care agent, the successor shall serve as the health care agent, and the health care power of attorney shall not be revoked.

"§ 32A-21.  Appointment, resignation, removal, and substitution.

(a)       A health care power of attorney may contain provisions relating to the appointment, resignation, removal and substitution of the health care agent.

(b)       If all health care agents named in the instrument or substituted, die or for any reason fail or refuse to act, and all methods of substitution have been exhausted, the health care power of attorney shall cease to be effective.

"§ 32A-22.  Relation of the health care agent to a court-appointed fiduciary and to a general attorney-in-fact.

(a)       If, following the execution of a health care power of attorney, a court of competent jurisdiction appoints a guardian of the person of the principal, or a general guardian with powers over the person of the principal, the health care power of attorney shall cease to be effective upon the appointment and qualification of the guardian. The guardian shall act consistently with G.S. 35A-1201(a)(5).

(b)       A principal may nominate, by a health care power of attorney, the guardian of the person of the principal if a guardianship proceeding is thereafter commenced.  The court shall make its appointment in accordance with the principal's most recent nomination in an unrevoked health care power of attorney, except for good cause shown.

(c)       The execution of a health care power of attorney shall not revoke, restrict or otherwise affect any nonhealth care powers granted by the principal to an attorney-in-fact pursuant to a general power of attorney; provided that the powers granted to the health care agent with respect to health care matters shall be superior to any similar powers granted by the principal to an attorney-in-fact under a general power of attorney.

(d)       A health care power of attorney may be combined with or incorporated into a general power of attorney which is executed in accordance with the requirements of this Article.

"§ 32A-23.  Article 2, Chapter 32A, not applicable.

The provisions of Article 2 of this Chapter shall not be applicable to a health care power of attorney executed pursuant to this Article.

"§ 32A-24.  Reliance on health care power of attorney; defense.

(a)       Any physician or other health care provider involved in the medical care of the principal may rely upon the authority of the health care agent contained in a signed and acknowledged health care power of attorney in the absence of actual knowledge of revocation of the health care power of attorney.

(b)       All health care decisions made by a health care agent pursuant to a health care power of attorney during any period following a determination that the principal lacks understanding or capacity to make or communicate health care decisions shall have the same effect as if the principal were not incapacitated and were present and acting on his or her own behalf.  Any health care provider relying in good faith on the authority of a health care agent shall be protected to the full extent of the power conferred upon the health care agent, and no person so relying on the authority of the health care agent shall be liable, by reason of his reliance, for actions taken pursuant to a decision of the health care agent.

(c)       The withholding or withdrawal of life-sustaining procedures by or under the orders of a physician pursuant to the authorization of a health care agent shall not be considered suicide or the cause of death for any civil or criminal purpose nor shall it be considered unprofessional conduct or a lack of professional competence.  Any person, institution or facility, including without limitation the health care agent and the attending physician, against whom criminal or civil liability is asserted because of conduct described in this section, may interpose this section as a defense.

"§ 32A-25.  Statutory form health care power of attorney.

The use of the following form in the creation of a health care power of attorney is lawful and, when used, it shall meet the requirements of and be construed in accordance with the provisions of this Article:

'HEALTH CARE POWER OF ATTORNEY

 

(Notice:  This document gives the person you designate your health care agent broad powers to make health care decisions decisions, including mental health treatment decisions, for you, you.  Except to the extent that you express specific limitations or restrictions on the authority of your health care agent, this power includes including the power to consent to your doctor not giving treatment or stopping treatment necessary to keep you alive. alive, admit you to a facility, and administer certain treatments and medications. This power exists only as to those health care decisions for which you are unable to give informed consent.

This form does not impose a duty on your health care agent to exercise granted powers, but when a power is exercised, your health care agent will have to use due care to act in your best interests and in accordance with this document. For mental health treatment decisions, your health care agent will act according to how the health care agent believes you would act if you were making the decision.  Because the powers granted by this document are broad and sweeping, you should discuss your wishes concerning life-sustaining procedures procedures, mental health treatment, and other health care decisions with your health care agent.

Use of this form in the creation of a health care power of attorney is lawful and is authorized pursuant to North Carolina law.  However, use of this form is an optional and nonexclusive method for creating a health care power of attorney and North Carolina law does not bar the use of any other or different form of power of attorney for health care that meets the statutory requirements.)

1.         Designation of health care agent.

I,....................., being of sound mind, hereby appoint

Name:.........................................................

Home Address:.................................................

Home Telephone Number.............Work Telephone Number............

as my health care attorney-in-fact (herein referred to as my "health care agent") to act for me and in my name (in any way I could act in person) to make health care decisions for me as authorized in this document.

If the person named as my health care agent is not reasonably available or is unable or unwilling to act as my agent, then I appoint the following persons (each to act alone and successively, in the order named), to serve in that capacity: (Optional)

A.        Name:............................................

            Home Address:....................................

            Home Telephone Number............Work Telephone Number..............

B.        Name:.............................................

            Home Address:.....................................

            Home Telephone Number............Work Telephone Number..............

Each successor health care agent designated shall be vested with the same power and duties as if originally named as my health care agent.

2.         Effectiveness of appointment.

(Notice:  This health care power of attorney may be revoked by you at any time in any manner by which you are able to communicate your intent to revoke to your health care agent and your attending physician.)

Absent revocation, the authority granted in this document shall become effective when and if the physician or physicians designated below determine that I lack sufficient understanding or capacity to make or communicate decisions relating to my health care and will continue in effect during my incapacity, until my death.  This determination shall be made by the following physician or physicians physicians.  For decisions related to mental health treatment, this determination shall be made by the following physician or eligible psychologist.  (You may include here a designation of your choice, including your attending physician, physician or eligible psychologist, or any other physician. physician or eligible psychologist.  You may also name two or more physicians, physicians or eligible psychologists, if desired, both of whom must make this determination before the authority granted to the health care agent becomes effective.):

.............................................................................................................................................

.............................................................................................................................................

.............................................................................................................................................

.............................................................................................................................................

3.         General statement of authority granted.

Except as indicated in section 4 below, I hereby grant to my health care agent named above full power and authority to make health care decisions decisions, including mental health treatment decisions, on my behalf, including, but not limited to, the following:

A.        To request, review, and receive any information, verbal or written, regarding my physical or mental health, including, but not limited to, medical and hospital records, and to consent to the disclosure of this information.

B.        To employ or discharge my health care providers.

C.        To consent to and authorize my admission to and discharge from a hospital, nursing or convalescent home, or other institution.

D.        To consent to and authorize my admission to and retention in a facility for the care or treatment of mental illness.

E.         To consent to and authorize the administration of medications for mental health treatment and electroconvulsive treatment (ECT) commonly referred to as "shock treatment".

D.  F.   To give consent for, to withdraw consent for, or to withhold consent for, X ray, anesthesia, medication, surgery, and all other diagnostic and treatment procedures ordered by or under the authorization of a licensed physician, dentist, or podiatrist.  This authorization specifically includes the power to consent to measures for relief of pain.

E.G.     To authorize the withholding or withdrawal of life-sustaining procedures when and if my physician determines that I am terminally ill, permanently in a coma, suffer severe dementia, or am in a persistent vegetative state.  Life-sustaining procedures are those forms of medical care that only serve to artificially prolong the dying process and may include mechanical ventilation, dialysis, antibiotics, artificial nutrition and hydration, and other forms of medical treatment which sustain, restore or supplant vital bodily functions.  Life-sustaining procedures do not include care necessary to provide comfort or alleviate pain.

I DESIRE THAT MY LIFE NOT BE PROLONGED BY LIFE-SUSTAINING PROCEDURES IF I AM TERMINALLY ILL, PERMANENTLY IN A COMA, SUFFER SEVERE DEMENTIA, OR AM IN A PERSISTENT VEGETATIVE STATE.

F.H.     To exercise any right I may have to make a disposition of any part or all of my body for medical purposes, to donate my organs, to authorize an autopsy, and to direct the disposition of my remains.

G.I.      To take any lawful actions that may be necessary to carry out these decisions, including the granting of releases of liability to medical providers.

4.         Special provisions and limitations.

(Notice:  The above grant of power is intended to be as broad as possible so that your health care agent will have authority to make any decisions you could make to obtain or terminate any type of health care.  If you wish to limit the scope of your health care agent's powers, you may do so in this section.)

A.        In exercising the authority to make health care decisions on my behalf, the authority of my health care agent is subject to the following special provisions and limitations (Here you may include any specific limitations you deem appropriate such as: your own definition of when life-sustaining treatment should be withheld or discontinued, or instructions to refuse any specific types of treatment that are inconsistent with your religious beliefs, or unacceptable to you for any other reason.):

            ..................................................................................................................

            ..................................................................................................................

            ..................................................................................................................

            ..................................................................................................................

B.        In exercising the authority to make mental health decisions on my behalf, the authority of my health care agent is subject to the following special provisions and limitations.  (Here you may include any specific limitations you deem appropriate such as:  limiting the grant of authority to make only mental health treatment decisions, your own instructions regarding the administration or withholding of psychotropic medications and electroconvulsive treatment (ECT), instructions regarding your admission to and retention in a health care facility for mental health treatment, or instructions to refuse any specific types of treatment that are unacceptable to you):

            ..................................................................................................................

            ..................................................................................................................

            ..................................................................................................................

            ..................................................................................................................

C.        (Notice:  This health care power of attorney may incorporate or be combined with an advance instruction for mental health treatment, executed in accordance with Part 2 of Article 3 of Chapter 122C of the General Statutes, which you may use to state your instructions regarding mental health treatment in the event you lack sufficient understanding or capacity to make or communicate mental health treatment decisions.  Because your health care agent's decisions about decisions must be consistent with any statements you have expressed in an advance instruction, you should indicate here whether you have executed an advance instruction for mental health treatment.):

            ..................................................................................................................

            ..................................................................................................................

            ..................................................................................................................

            ..................................................................................................................

5.         Guardianship provision.

If it becomes necessary for a court to appoint a guardian of my person, I nominate my health care agent acting under this document to be the guardian of my person, to serve without bond or security. The guardian shall act consistently with G.S. 35A-1201(a)(5).

6.         Reliance of third parties on health care agent.

A.        No person who relies in good faith upon the authority of or any representations by my health care agent shall be liable to me, my estate, my heirs, successors, assigns, or personal representatives, for actions or omissions by my health care agent.

B.        The powers conferred on my health care agent by this document may be exercised by my health care agent alone, and my health care agent's signature or act under the authority granted in this document may be accepted by persons as fully authorized by me and with the same force and effect as if I were personally present, competent, and acting on my own behalf.  All acts performed in good faith by my health care agent pursuant to this power of attorney are done with my consent and shall have the same validity and effect as if I were present and exercised the powers myself, and shall inure to the benefit of and bind me, my estate, my heirs, successors, assigns, and personal representatives.  The authority of my health care agent pursuant to this power of attorney shall be superior to and binding upon my family, relatives, friends, and others.

7.         Miscellaneous provisions.

A.        I revoke any prior health care power of attorney.

B.        My health care agent shall be entitled to sign, execute, deliver, and acknowledge any contract or other document that may be necessary, desirable, convenient, or proper in order to exercise and carry out any of the powers described in this document and to incur reasonable costs on my behalf incident to the exercise of these powers; provided, however, that except as shall be necessary in order to exercise the powers described in this document relating to my health care, my health care agent shall not have any authority over my property or financial affairs.

C.        My health care agent and my health care agent's estate, heirs, successors, and assigns are hereby released and forever discharged by me, my estate, my heirs, successors, and assigns and personal representatives from all liability and from all claims or demands of all kinds arising out of the acts or omissions of my health care agent pursuant to this document, except for willful misconduct or gross negligence.

D.        No act or omission of my health care agent, or of any other person, institution, or facility acting in good faith in reliance on the authority of my health care agent pursuant to this health care power of attorney shall be considered suicide, nor the cause of my death for any civil or criminal purposes, nor shall it be considered unprofessional conduct or as lack of professional competence.  Any person, institution, or facility against whom criminal or civil liability is asserted because of conduct authorized by this health care power of attorney may interpose this document as a defense.

8.         Signature of principal.

By signing here, I indicate that I am mentally alert and competent, fully informed as to the contents of this document, and understand the full import of this grant of powers to my health care agent.

            (SEAL)

Signature of Principal     Date

 

9.         Signatures of Witnesses.

I hereby state that the Principal,.................., being of sound mind, signed the foregoing health care power of attorney in my presence, and that I am not related to the principal by blood or marriage, and I would not be entitled to any portion of the estate of the principal under any existing will or codicil of the principal or as an heir under the Intestate Succession Act, if the principal died on this date without a will.  I also state that I am not the principal's attending physician, nor an employee of the principal's attending physician, nor an employee of the health facility in which the principal is a patient, nor an employee of a nursing home or any group care home where the principal resides.  I further state that I do not have any claim against the principal.

 

Witness:...................................Date:..................

 

Witness:...................................Date:..................

 

STATE OF NORTH CAROLINA

 

COUNTY OF...................................

 

CERTIFICATE

 

I,.................., a Notary Public for...............County, North Carolina, hereby certify that.................appeared before me and swore to me and to the witnesses in my presence that this instrument is a health care power of attorney, and that he/she willingly and voluntarily made and executed it as his/her free act and deed for the purposes expressed in it.

I further certify that...............and............., witnesses, appeared before me and swore that they witnessed..............sign the attached health care power of attorney, believing him/her to be of sound mind; and also swore that at the time they witnessed the signing (i) they were not related within the third degree to him/her or his/her spouse, and (ii) they did not know nor have a reasonable expectation that they would be entitled to any portion of his/her estate upon his/her death under any will or codicil thereto then existing or under the Intestate Succession Act as it provided at that time, and (iii) they were not a physician attending him/her, nor an employee of an attending physician, nor an employee of a health facility in which he/she was a patient, nor an employee of a nursing home or any group-care home in which he/she resided, and (iv) they did not have a claim against him/her.  I further certify that I am satisfied as to the genuineness and due execution of the instrument.

This the..................day of......................, 19.....

 

            ..................................................

Notary Public

 

My Commission Expires:

........................................

 

(A copy of this form should be given to your health care agent and any alternate named in this power of attorney, and to your physician and family members.)'"

Section 2.  Part 2 of Article 3 of Chapter 122C reads as rewritten:

"Part 2.  Advance Instruction for Mental Health Treatment.

"§ 122C-71.  Purpose.

(a)       The General Assembly recognizes as a matter of public policy the fundamental right of an individual to control the decisions relating to the individual's medical care, mental health care. and that this right may be exercised on behalf of the individual by an agent chosen by the individual.

(b)       The purpose of this Part is to establish an additional, nonexclusive method for an individual to exercise the right to consent to or refuse mental health treatment when the individual lacks sufficient understanding or capacity to make or communicate mental health treatment decisions.

(c)       This Part is intended and shall be construed to be consistent with the provisions of Article 3 of Chapter 32A of the General Statutes, provided that in the event of a conflict between the provisions of this Part and Article 3 of Chapter 32A, the provisions of this Part control.

"§ 122C-72.  Definitions.

As used in this Part, unless the context clearly requires otherwise, the following terms have the meanings specified:

(1)       "Advance instruction"or "advance instruction for mental health treatment"means a written instrument, signed by two qualified witnesses, that makes a declaration of instructions, that also provides information and preferences regarding mental health treatment, and that may appoint an attorney-in-fact. 'Advance instruction for mental health treatment' or 'advance instruction' means a written instrument, signed in the presence of two qualified witnesses who believe the principal to be of sound mind at the time of the signing, and acknowledged before a notary public, pursuant to which the principal makes a declaration of instructions, information, and preferences regarding the principal's mental health treatment and states that the principal is aware that the advance instruction authorizes a mental health treatment provider to act according to the instruction.  It may also state the principal's instructions regarding, but not limited to, consent to or refusal of mental health treatment when the principal is incapable.

(2)       'Attending physician' means the physician who has primary responsibility for the care and treatment of the principal.

(3)       "Attorney-in-fact"means an adult validly appointed under G.S. 122C-75 to make mental health treatment decisions for a principal under an advance instruction for mental health treatment and also means an alternative attorney-in-fact.

(4)(3)  'Incapable' means that, in the opinion of a physician or eligible psychologist, the person currently lacks sufficient understanding or the capacity to make and communicate mental health treatment decisions. As used in this subdivision, Part, the term 'eligible psychologist' has the meaning given the term  in G.S. 122C-3(13b) (13d).

(5)(4)  'Mental health treatment' means the process of providing for the physical, emotional, psychological, and social needs of the principal for the principal's mental illness. 'Mental health treatment' includes, but is not limited to, electroconvulsive treatment (ECT), commonly referred to as 'shock treatment', treatment of mental illness with psychotropic medication, and admission to and retention in a facility for care or treatment of mental illness.

(6)(5)  'Principal' means the person making the advance instruction.

(7)(6)  'Qualified witness' means a witness who affirms that the principal is personally known to the witness, that the principal signed or acknowledged the principal's signature on the advance instruction in the presence of the witness, that the witness believes the principal to be of sound mind and not to be under duress, fraud, or undue influence, and that the witness is not:

a.         The attending physician or mental health service provider or a relative an employee of the physician or mental health treatment provider; or

b.         An owner, operator, or relative employee of an owner or operator of a health care facility in which the principal is a patient or resident. resident; or

c.         Related within the third degree to the principal or to the principal's spouse.

"§ 122C-73.  Scope, use, and authority of advance instruction for mental health treatment.

(a)       Any adult of sound mind may make an advance instruction regarding mental health treatment.  The advance instruction may include consent to or refusal of mental health treatment.  The advance instruction may also appoint an attorney-in-fact.

(b)       An advance instruction may include, but is not limited to, the names and telephone numbers of individuals to be contacted in case of a mental health crisis, situations that may cause the principal to experience a mental health crisis, responses that may assist the principal to remain in the principal's home during a mental health crisis, the types of assistance that may help stabilize the principal if it becomes necessary to enter a facility, and medications that the principal is taking or has taken in the past and the effects of those medications.

(c)       A person An individual shall not be required to execute or to refrain from executing an advance instruction as a condition for insurance coverage, as a condition for receiving mental or physical health services, as a condition for receiving privileges while in a facility, or as a condition of discharge from a facility.

(d)       A principal, through an advance instruction, may grant or withhold authority for mental health treatment, including, but not limited to, the use of psychotropic medication, electroconvulsive treatment, and admission to and retention in a facility for the care or treatment of mental illness.

(d)(e)  A principal may nominate, by advance instruction for mental health treatment, the guardian of the person of the principal if a guardianship proceeding is thereafter commenced. The court shall make its appointment in accordance with the principal's most recent nomination in an unrevoked advance instruction for mental health treatment, except for good cause shown.

(e)(f)   If, following the execution of an advance instruction for mental health treatment, a court of competent jurisdiction appoints a guardian of the person of the principal, or a general guardian with powers over the person of the principal, the advance instruction for mental health treatment shall remain in effect and shall be superior to the powers and duties of the guardian of the person with respect to mental health treatment covered under the advance instruction. guardian shall follow the advance instruction consistent with G.S. 35A-1201(a)(5).

(f)(g)   An advance instruction for mental health treatment may be combined with or incorporated into  a health care power of attorney or general power of attorney that is executed in accordance with the requirements of Chapter 32A of the General Statutes. Statutes so long as each form shall be executed in accordance with its own statute.

"§ 122C-74.  Effectiveness and duration; revocation.

(a)       A validly executed advance instruction becomes effective when it is delivered to the principal's physician or other mental health treatment provider and remains valid until revoked or expired.  The physician or provider shall act in accordance with an advance instruction when the principal has been determined to be incapable.  The physician or provider shall continue to obtain the principal's informed consent to all mental health treatment decisions as required by law. upon its proper execution and remains valid unless revoked.

(b)       The attending physician or other mental health treatment provider may consider valid and rely upon an advance instruction in the absence of actual knowledge of its revocation or invalidity.

(c)       An attending physician or other mental health treatment provider may presume that a person who executed an advance instruction in accordance with this Part was of sound mind and acted voluntarily when he or she executed the advance instruction.

(d)       An attending physician or other mental health treatment provider shall act in accordance with an advance instruction when the principal has been determined to be incapable.  If a patient is incapable, an advance instruction executed in accordance with this Article is presumed to be valid.

(e)       The attending physician or mental health treatment provider shall continue to obtain the principal's informed consent to all mental health treatment decisions when the principal is capable of providing informed consent or refusal, as required by G.S. 122C-57.  Unless the principal is deemed incapable by the attending physician or eligible psychologist, the instructions of the principal at the time of treatment shall supersede the declarations expressed in the principal's advance instruction.

(f)        The fact of a principal's having executed an advance instruction shall not be considered an indication of a principal's capacity to make or communicate mental health treatment decisions at such times as those decisions are required.

(b)(g)  Upon being presented with an advance instruction, a an attending physician or other mental health treatment provider shall make the advance instruction a part of the principal's medical record.  When acting under authority of an advance instruction, a an attending physician or other mental health treatment provider shall comply with it to the fullest extent possible, the advance instruction unless compliance is not consistent with: unless:

(1)       Best medical practice to benefit the principal;

(2)       The availability of treatments requested; and

(3)       Applicable law.

If the physician or other provider is unwilling at any time to comply with any part or parts of an advance instruction for one or more of the reasons set out in subdivisions (1) through (3) of this subsection, the physician or provider shall promptly notify the principal and, if applicable, the attorney-in-fact, and shall document the reason for not complying with the advance instruction and shall document the notification in the principal's medical record.

(c)       Except as provided in subsection (b) of this section, the physician or provider may subject the principal to mental health treatment in a manner contrary to the principal's instructions as expressed in an advance instruction for mental health treatment only:

(1)       If the principal is committed to a 24-hour facility pursuant to Article 5 of G.S. 122C and treatment is authorized in compliance with G.S. 122C-57 and administrative rule; or

(2)       In cases of emergency endangering life or health.

(1)       Compliance, in the opinion of the attending physician or other mental health treatment provider, is not consistent with generally accepted community practice standards of treatment to benefit the principal;

(2)       Compliance is not consistent with the availability of treatments requested;

(3)       Compliance is not consistent with applicable law;

(4)       The principal is committed to a 24-hour facility pursuant to Article 5 of Chapter 122C of the General Statutes, and treatment is authorized in compliance with G.S. 122C-57 and rules adopted pursuant to it; or

(5)       Compliance, in the opinion of the attending physician or other mental health treatment provider, is not consistent with appropriate treatment in case of an emergency endangering life or health.

In the event that one part of the advance instruction is unable to be followed because of one or more of the above, all other parts of the advance instruction shall nonetheless be followed.

(h)       If the attending physician or other mental health treatment provider is unwilling at any time to comply with any part or parts of an advance instruction for one or more of the reasons set out in subdivisions (1) through (5) of subsection (g), the attending physician or other mental health care treatment provider shall promptly notify the principal and, if applicable, the health care agent and shall document the reason for not complying with the advance instruction and shall document the notification in the principal's medical record.

(d)(i)   An advance instruction does not limit any authority provided in Article 5 of G.S. 122C either to take a person into custody, or to admit, retain, or treat a person in a facility.

(e)       An advance instruction for mental health treatment continues in effect for a period of two years, unless revoked. An advance instruction may be revoked in whole or in part at any time by the principal if the principal is capable.  A revocation is effective when a capable principal communicates the revocation to the attending physician or other provider.

(j)        An advance instruction may be revoked at any time by the principal so long as the principal is not incapable.  The principal may exercise this right of revocation in any manner by which the principal is able to communicate an intent to revoke and by notifying the revocation to the treating physician or other mental health treatment provider. The attending physician or other mental health treatment provider shall note the revocation as part of the principal's medical record.  The authority of a named attorney-in-fact and any alternative attorney-in-fact named in the advance instruction continues in effect as long as the advance instruction appointing the attorney-in-fact is in effect or until the attorney-in-fact has withdrawn.

(f)        A physician or provider who administers or does not administer mental health treatment according to and in good faith reliance upon the validity of an advance instruction is not subject to criminal prosecution, civil liability, or professional disciplinary action resulting from a subsequent finding of an advance instruction's invalidity.

"§ 122C-75.  Scope of authority of attorney-in-fact; powers and duties; limitation on liability.

(a)       An advance instruction may designate a competent adult to act as attorney-in-fact to make decisions about mental health treatment.  An alternative attorney-in-fact may also be designated to act as attorney-in-fact if the original designee is unable or unwilling to act at any time.  An attorney-in-fact who has accepted the appointment in writing may make decisions about mental health treatment on behalf of the principal only when the principal is incapable.  The decisions shall be consistent with any desires the principal has expressed in the advance instruction.

(b)       None of the following may serve as attorney-in-fact:

(1)       The attending physician or mental health service provider or an employee of the physician or provider, if the physician, provider, or employee is unrelated to the principal by blood, marriage, or adoption.

(2)       An owner, operator, or employee of a health care facility in which the principal is a patient or resident, if the owner, operator, or employee is unrelated to the principal by blood, marriage, or adoption.

(c)       The attorney-in-fact shall not have authority to make mental health treatment decisions unless the principal is incapable.

(d)       The attorney-in-fact is not, as a result of acting in that capacity, personally liable for the cost of treatment provided to the principal.

(e)       Except to the extent the right is limited by the advance instruction or any federal law, an attorney-in-fact has the same right as the principal to receive information regarding the proposed mental health treatment and to receive, review, and consent to disclosure of medical records relating to that treatment. This right of access does not waive any evidentiary privilege.

(f)        In exercising authority under the advance instruction, the attorney-in-fact shall act consistently with the desires of the principal as expressed in the advance instruction. If the principal's desires are not expressed in the advance instruction and are not otherwise known by the attorney-in-fact, the attorney-in-fact shall act in what the attorney-in-fact in good faith believes to be the manner in which the principal would act if the principal was not incapable.

(g)       The appointment of an attorney-in-fact shall not revoke, restrict, or otherwise affect any nonmental health treatment powers granted by the principal to a health care agent pursuant to a health care power of attorney or attorney-in-fact pursuant to a general power of attorney; provided that the mental health treatment powers granted to the attorney-in-fact shall be superior to any similar powers granted by the principal to a health care agent pursuant to a health care power of attorney or an attorney-in-fact pursuant to a general power of attorney.

(h)       An attorney-in-fact is not subject to criminal prosecution, civil liability, or professional disciplinary action for any action taken in good faith pursuant to an advance instruction for mental health treatment.

(i)        An attorney-in-fact may withdraw by giving notice to the principal.  If a principal is incapable, the attorney-in-fact may withdraw by giving notice to the attending physician or provider.  The attending physician or provider shall note the withdrawal as part of the principal's medical record.

(j)        A person who has withdrawn under the provision of subsection (i) of this section may rescind the withdrawal by executing an acceptance after the date of the withdrawal.  The acceptance shall be in the same or similar form as provided for in G.S. 122C-77 for accepting an appointment.  A person who rescinds a withdrawal shall give notice to the principal if the principal is capable or to the principal's health care provider if the principal is incapable.

"§ 122C-75.  Reliance on advance instruction for mental health treatment.

(a)       An attending physician or eligible psychologist who in good faith determines that the principal is or is not incapable for the purpose of deciding whether to proceed or not to proceed according to an advance instruction, is not subject to criminal prosecution, civil liability, or professional disciplinary action for making and acting upon that determination.

(b)       In the absence of actual knowledge of the revocation of an advance instruction, no attending physician or other mental health treatment provider shall be subject to criminal prosecution or civil liability or be deemed to have engaged in unprofessional conduct as a result of the provision of treatment to a principal in accordance with this Part unless the absence of actual knowledge resulted from the negligence of the attending physician or mental health treatment provider.

(c)       An attending physician or mental health treatment provider who administers or does not administer mental health treatment according to and in good faith reliance upon the validity of an advance instruction is not subject to criminal prosecution, civil liability, or professional disciplinary action resulting from a subsequent finding of an advance instruction's invalidity.

(d)       No attending physician or mental health treatment provider who administers or does not administer treatment under authorization obtained pursuant to this Part shall incur liability arising out of a claim to the extent that the claim is based on lack of informed consent or authorization for this action.

(e)       This section shall not be construed as affecting or limiting any liability that arises out of a negligent act or omission in connection with the medical diagnosis, care, or treatment of a principal under an advance instruction or that arises out of any deviation from reasonable medical standards.

"§ 122C-76.  Penalty.

It is a Class 2 misdemeanor for a person, without authorization of the principal, willfully to alter, forge, conceal, or destroy an instrument, the reinstatement or revocation of an instrument, or any other evidence or document reflecting the principal's desires and interests, with the intent or effect of affecting a mental health treatment decision.

"§ 122C-77.  Statutory form for advance instruction for mental health treatment.

The use of the following or similar form in the creation of an advance instruction for mental health treatment is lawful, and when used, it shall be construed in accordance with the provisions of this Article.

(a)       This Part shall not be construed to invalidate an advance instruction for mental health treatment that was executed prior to January 1, 1999, and was otherwise valid.

(b)       The use of the following or similar form after the effective date of this Part in the creation of an advance instruction for mental health treatment is lawful, and, when used, it shall specifically meet the requirements and be construed in accordance with the provisions of this Part.

'ADVANCE INSTRUCTION FOR MENTAL HEALTH

TREATMENT

 

I, ________, being an adult of sound mind, willfully and voluntarily make this advance instruction for mental health treatment to be followed if it is determined by a physician or eligible psychologist that my ability to receive and evaluate information effectively or communicate decisions is impaired to such an extent that I lack the capacity to refuse or consent to mental health treatment. "Mental health treatment" means the process of providing for the physical, emotional, psychological, and social needs of the principal. "Mental health treatment" includes electroconvulsive treatment (ECT), commonly referred to as "shock treatment", treatment of mental illness with psychotropic medication, and admission to and retention in a facility for care or treatment of mental illness.

 

I understand that psychoactive medications and electroconvulsive treatment (ECT) (commonly referred to as "shock treatment") under G.S. 122C-57, other than for specific exceptions stated there, mental health treatment may not be administered without my express and informed written consent or, if I am incapable of giving my informed consent, the express and informed written  consent of my legally responsible person, my health care agent named pursuant to a valid health care power of attorney, or attorney-in-fact named pursuant to a valid advance instruction for mental health treatment, as required under G.S. 122C-57. or my consent expressed in this advance instruction for mental health treatment.  I understand that I may become incapable of giving or withholding informed consent for mental health treatment due to the symptoms of a diagnosed mental disorder.  These symptoms may include:

 

PSYCHOACTIVE MEDICATIONS

 

If I become incapable of giving or withholding informed consent for mental health treatment, my instructions regarding psychoactive medications are as follows:  (Place initials beside choice.)

____       I consent to the administration of the following medications:

 

____       I do not consent to the administration of the following medications:

 

Conditions or limitations:

 

ADMISSION TO AND RETENTION IN FACILITY

 

If I become incapable of giving or withholding informed consent for mental health treatment, my instructions regarding admission to and retention in a health care facility for mental health treatment are as follows:  (Place initials beside choice.)

____       I consent to being admitted to a health care facility for mental health treatment.

My facility preference is

____       I do not consent to being admitted to a health care facility for mental health treatment.

This advance instruction cannot, by law, provide consent to retain me in a facility for more than 10 days.

Conditions or limitations

 

ADDITIONAL INSTRUCTIONS

 

These instructions shall apply during the entire length of my incapacity.

In case of mental health crisis, please contact:

1.         Name:

            Home Address:

            Home Telephone Number: _________ Work Telephone

Number:

            Relationship to Me:

2.         Name:

            Home Address:

            Home Telephone Number: _________ Work Telephone

Number:

            Relationship to Me:

3.         My Physician:

            Name:

            Telephone Number :

4.         My Therapist:

            Name:

            Telephone Number:

The following may cause me to experience a mental health crisis:

 

 

The following may help me avoid a hospitalization:

 

 

I generally react to being hospitalized as follows:

 

 

Staff of the hospital or crisis unit can help me by doing the following:

 

 

 

I give permission for the following person or people to visit me:

 

 

 

Instructions concerning any other medical interventions, such as

electroconvulsive (ECT) treatment (commonly referred to as "shock

treatment"):

 

 

Other instructions:

 

 

_______   I have attached an additional sheet of instructions to be followed and considered part of this advance instruction.

 

ATTORNEY-IN-FACT

 

I hereby appoint:

Name:                                                         

Home Address:                                                 

Home Telephone Number: ________________ Work Telephone Number:

to act as my attorney-in-fact to make decisions regarding my mental health treatment if I become incapable of giving or withholding informed consent for that treatment.

If the person named above refuses or is unable to act on my behalf, or if I revoke that person's authority to act as my attorney-in-fact, I authorize the following person to act as my attorney-in-fact:

Name:                                                         

Home Address:                                                 

Home Telephone Number: ________________ Work Telephone Number:

My attorney-in-fact is authorized to make decisions that are consistent with the instructions I have expressed in this advance instruction or, if not expressed, as are otherwise known by my attorney-in-fact, my attorney-in-fact is to act in what he or she believes to be my best interests.

If it becomes necessary for the court to appoint a guardian for me, I hereby nominate my attorney-in-fact to serve in that capacity.  By signing here, I indicate that I am mentally alert and competent, fully informed as to the contents of this document, and understand the full import of this grant of powers to my attorney-in-fact.

 

 Signature of Principal                                                               Date

 

SHARING OF INFORMATION BY PROVIDERS

 

I understand that the information in this document may be shared by my mental health treatment provider with any other mental health treatment provider who may serve me when necessary to provide treatment in accordance with this advance instruction.

 

Other instructions about sharing of information:

 

SIGNATURE OF PRINCIPAL

 

By signing here, I indicate that I am mentally alert and competent, fully informed as to the contents of this document, and understand the full impact of having made this advance instruction for mental health treatment.

 

 

Signature of Principal                                                                Date

 

NATURE OF WITNESSES

 

I hereby state that the principal is personally known to me, that the principal signed or acknowledged the principal's signature on this advance instruction for mental health treatment in my presence, that the principal appears to be of sound mind and not under duress, fraud, or undue influence, and that I am not:

 

a.         The attending physician or mental health service provider or an employee of the physician or mental health treatment provider;

b.         An owner, operator, or employee of an owner or operator of a health care facility in which the principal is a patient or resident; or

c.         Related within the third degree to the principal or to the principal's spouse.

 

AFFIRMATION OF WITNESSES

 

We affirm that the principal is personally known to us, that the principal signed or acknowledged the principal's signature on this advance instruction for mental health treatment in our presence, that the principal appears to be of sound mind and not under duress, fraud, or undue influence, and that neither of us is:

A person appointed as an attorney-in-fact by this document;

The principal's attending physician or mental health service provider or a relative of the physician or provider;

The owner, operator, or relative of an owner or operator of a facility in which the principal is a patient or resident; or

A person related to the principal by blood, marriage, or adoption.

Witnessed by:

Witness:______________________                                    Date:

Witness:______________________                                    Date:

STATE OF NORTH CAROLINA

COUNTY OF _________________

 

ACCEPTANCE OF APPOINTMENT AS ATTORNEY-IN-FACT

 

I accept this appointment and agree to serve as attorney-in-fact to make decisions about mental health treatment for the principal.  I understand that I have a duty to act consistent with the desires of the principal as expressed in this appointment.  I understand that this document gives me authority to make decisions about mental health treatment only while the principal is incapable as determined by a qualified crisis services professional and a physician or eligible psychologist.  I understand that the principal may revoke this advance instruction in whole or in part at any time and in any manner when the principal is not incapable.

__________________________________

Signature of Attorney-in-fact                                                   Date

__________________________________

Signature of Alternative Attorney-in-fact                                Date"

 

CERTIFICATION OF NOTARY PUBLIC

 

STATE OF NORTH CAROLINA

COUNTY OF ____________________

 

I,                            , a Notary Public for the County cited above in the State of North Carolina, hereby certify that ____________ appeared before me and swore or affirmed to me and to the witnesses in my presence that this instrument is an advance instruction for mental health treatment, and that he/she willingly and voluntarily made and executed it as his/her free act and deed for the purposes expressed in it.

I further certify that __________________ and ____________________, witnesses, appeared before me and swore or affirmed that they witnessed __________________ sign the attached advance instruction for mental health treatment, believing him/her to be of sound mind; and also swore that at the time they witnessed the signing they were not (i) the attending physician or mental health treatment provider or an employee of the physician or mental health treatment provider and (ii) they were not an owner, operator, or employee of an owner or operator of a health care facility in which the principal is a patient or resident, and (iii) they were not related within the third degree to the principal or to the principal's spouse.  I further certify that I am satisfied as to the genuineness and due execution of the instrument.

 

This is the ___________ day of,_______

 

_________________________________

______________________Notary Public

 

My Commission expires:___________________

 

NOTICE TO PERSON MAKING AN INSTRUCTION FOR MENTAL HEALTH TREATMENT

 

This is an important legal document.  It creates an instruction for mental health treatment.  Before signing this document you should know these important facts:

This document allows you to make decisions in advance about certain types of mental health treatment.  The instructions you include in this declaration will be followed if a physician or eligible psychologist determines that you are incapable of making and communicating treatment decisions.  Otherwise you will be considered capable to give or withhold consent for the treatments.  Your instructions may be overridden if you are being held in accordance with civil commitment law.  Under the Health Care Power of Attorney you may also appoint a person as your health care agent to make treatment decisions for you if you become incapable.  You have the right to revoke this document at any time you have not been determined to be incapable.  YOU MAY NOT REVOKE THIS ADVANCE INSTRUCTION WHEN YOU ARE FOUND INCAPABLE BY A PHYSICIAN OR OTHER AUTHORIZED MENTAL HEALTH TREATMENT PROVIDER.  A revocation is effective when it is communicated to your attending physician or other provider.  The physician or other provider shall note the revocation in your medical record.  To be valid, this advance instruction must be signed by two qualified witnesses, personally known to you, who are present when you sign or acknowledge your signature.  It must also be acknowledged before a notary public.

 

NOTICE TO PHYSICIAN OR OTHER MENTAL HEALTH TREATMENT PROVIDER

 

Under North Carolina law, a person may use this advance instruction to provide consent for future mental health treatment if the person later becomes incapable of making those decisions.  Under the Health Care Power of Attorney the person may also appoint a health care agent to make mental health treatment decisions for the person when incapable.  A person is 'incapable' when in the opinion of a physician or eligible psychologist the person currently lacks sufficient understanding or capacity to make and communicate mental health treatment decisions.  This document becomes effective upon its proper execution and remains valid unless revoked. Upon being presented with this advance instruction, the physician or other provider must make it a part of the person's medical record.  The attending physician or other mental health treatment provider must act in accordance with the statements expressed in the advance instruction when the person is determined to be incapable, unless compliance is not consistent with G.S. 122C-74(g).  The physician or other mental health treatment provider shall promptly notify the principal and, if applicable, the health care agent, and document noncompliance with any part of an advance instruction in the principal's medical record.  The physician or other mental health treatment provider may rely upon the authority of a signed, witnessed, dated, and notarized advance instruction, as provided in G.S. 122C-75.'"

Section 3.  G.S. 122C-3(20)reads as rewritten:

"(20)   'Legally responsible person' means: (i) when applied to an adult, who has been adjudicated incompetent, a guardian; or guardian; (ii) when applied to a minor, a parent, guardian, a person standing in loco parentis, or a legal custodian other than a parent who has been granted specific authority by law or in a custody order to consent for medical care, including psychiatric treatment. treatment; or (iii) when applied to an adult who is incapable as defined in G.S. 122C-72(c) and who has not been adjudicated incompetent, a health care agent named pursuant to a valid health care power of attorney as prescribed in Article 3 of Chapter 32 of the General Statutes."

Section 4.  G.S. 122C-55 is amended by adding a new subsection to read:

"(e2)    A responsible professional may disclose an advance instruction for mental health treatment or confidential information from an advance instruction to a physician, psychologist, or other qualified professional when the responsible professional determines that disclosure is necessary to give effect to or provide treatment in accordance with the advance instruction."

Section 5.  G.S. 122C-57(d), (e), and (f) are amended as follows:

"(d)      Each voluntarily admitted client, the client's legally responsible person, or a health care agent named pursuant to a valid health care power of attorney, or an attorney in fact named pursuant to a valid advance instruction for mental health treatment has the right to consent to or refuse any treatment offered by the facility. Consent may be withdrawn at any time by the person who gave the consent. If treatment is refused, the qualified professional shall determine whether treatment in some other modality is possible. If all appropriate treatment modalities are refused, the voluntarily admitted client may be discharged. In an emergency, a voluntarily admitted client may be administered treatment or medication, other than those specified in subsection (f) of this section, despite the refusal of the client, the client's legally responsible person, person, a health care agent named pursuant to a valid health care power of attorney, or the client's refusal expressed in a valid advance instruction for mental health treatment. or an attorney in fact named pursuant to a valid advance instruction for mental health treatment.

(d1)     Except as provided in G.S. 90-21.4, discharge of a voluntarily admitted minor from treatment shall include notice to and consultation with the minor's legally responsible person and in no event shall a minor be discharged from treatment upon the minor's request alone.

(e)       In the case of an involuntarily committed client, treatment measures other than those requiring express written consent as specified in subsection (f) of this section may be given despite the refusal of the client, the client's legally responsible person, a health care agent named pursuant to a valid health care power of attorney, or the client's refusal expressed in a valid advanced instruction for mental health treatment in the event of an emergency or when consideration of side effects related to the specific treatment measure is given and in the professional judgment, as documented in the client's record, of the treating physician and a second physician, who is either the director of clinical services of the facility, or that person's designee, either:

(1)       The client, without the benefit of the specific treatment measure, is incapable of participating in any available treatment plan which will give the client a realistic opportunity of improving his condition;

(2)       There is, without the benefit of the specific treatment measure, a significant possibility that the client will harm himself or others before improvement of the client's condition is realized.

(f)        Treatment involving electroshock therapy, the use of experimental drugs or procedures, or surgery other than emergency surgery may not be given without the express and informed written consent of the client or the client's legally responsible person, a health care agent named pursuant to a valid health care power of attorney, or the client's consent expressed in a valid advanced instruction or mental health treatment. or an attorney in fact named pursuant to a valid advance instruction for mental health treatment."

Section 6.  G.S. 122C-211(a) is amended and new (f) is added as follows:

"(a)      Except as provided in subsections (b) through (e) (f) of this section, any individual in need of treatment for mental illness or substance abuse may seek voluntary admission at any facility by presenting himself for evaluation to the facility.

(f)        An individual in need of treatment for mental illness may be admitted to a facility pursuant to an advance instruction for mental health treatment or pursuant to the authority of a health care agent named in a valid health care power of attorney, provided that the individual is incapable, as defined in G.S. 122C-72(c), at the time of the need for admission.  An individual admitted to a facility pursuant to an advance instruction may not be retained for more than 10 days, except as provided for in subsection (b) of this section.  When a health care power of attorney authorizes a health care agent to seek the admission of an incapable individual, the health care agent shall act for the individual in applying for admission to a facility and in consenting to medical treatment at the facility when consent is required, provided that the individual is incapable."

Section 7.  This act becomes effective October 1, 1998.

In the General Assembly read three times and ratified this the 14th day of October, 1998.

s/   Dennis A. Wicker

President of the Senate

 

s/   Harold J. Brubaker

Speaker of the House of Representatives

 

s/   James B. Hunt, Jr.

Governor

 

Approved 2:15 p.m. this 24th day of October, 1998