Require Consent for Psych Meds

Section 1. The public health law is amended by adding a new section 280-d to read as follows:

§ 280-d. Use of psychotropic medications in nursing homes and adult care facilities. 1. As used in this section:

(a) "psychotropic medication" means a drug that affects brain activities associated with mental processes and behavior, including, but not limited to, antipsychotics, antidepressants, antianxiety drugs or anxiolytics, and hypnotics;

(b) "lawful representative" means, where a patient lacks capacity to consent to health care, a person authorized to consent on behalf of the patient, including, but not limited to, a health care agent authorized by a health care proxy under article twenty-nine-C of this chapter or a surrogate under article twenty-nine-CC of this chapter;

(c) "increase" when used in relation to an order for a psychotropic medication, means an increase of the dosage or duration of the medication above the dosage or duration covered by the currently active consent;

(d) "health care professional" means a health care professional, licensed, certified or authorized to practice under title eight of the education law, acting within his or her lawful scope of practice, who has authority to order a psychotropic medication; and

(e) "patient" means an individual who is a resident of a residential health care facility as defined in article twenty-eight of this chapter, or an adult care facility certified under section four hundred sixtyone-b of the social services law.

EXPLANATION--Matter in italics (underscored) is new; matter in brackets

[ ] is old law to be omitted.

LBD03494-01-9

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2. (a) An order for a psychotropic medication shall include the dosage, frequency, and duration of the order which shall not exceed fourteen days. A health care professional may not order or increase an order for a psychotropic medication for a patient unless the health care professional has obtained the written informed consent of the patient or the patient's lawful representative, or is acting pursuant to an order under this section, or is acting under subdivision three of this section. Where a patient lacks capacity to consent to health care and lacks a lawful representative, an order or increase of an order under this section shall be subject to subdivision four of section twenty-nine hundred ninety-four-g of this chapter as if the patient were an inpatient of a general hospital. To constitute informed consent, the following disclosure shall be given to the patient or, where the patient lacks capacity to consent to health care, the patient's lawful representative, in a clear and explicit manner:

(i) the reason for the medication, including the nature and seriousness of the patient's illness, disorder or condition that the medication is intended to treat;

(ii) the anticipated benefit from the medication, and the dosage, frequency, and duration of the order;

(iii) the probability of side effects and significant risks of the medication, including the nature, degree, and duration of such effects and reasonably known risks;

(iv) the reasonable alternative treatments to the proposed medication and the reason that the health care professional prefers the proposed medication in this instance; and

(v) that the patient or lawful representative has the right to consent or refuse consent to use of the proposed medication, and that if he or she consents, he or she has the right to revoke his or her consent for any reason, at any time, including a description of how the consent shall be revoked.

(b) The health care professional shall document in the patient's medical record the date and time that the informed consent disclosure was provided, and to whom and by whom it was provided, and include the written consent.

(c) Where the patient's medical record notes that a family member has requested notification of medication orders, and such notification is otherwise lawful, the health care professional shall cause notice to be provided within forty-eight hours of the prescription, order, or increase of an order under this section. Such notice shall not be provided if the patient specifically requests that the family member not be given notification.

3. A health care professional is not required to obtain consent under this section to issue an order for use of a psychotropic medication for a patient where it is reasonably necessary in an emergency to protect the life, health or safety of the patient or another person. Where an order is made under this subdivision, the health care professional shall immediately record the use of the psychotropic medication, the reason for the use, and the dosage, in the patient's medical record; and shall promptly notify the patient or the patient's lawful representative who would have had the authority to consent, and any family member required to be notified under this section and record such notifications in the patient's medical record.

4. This section does not increase the lawful scope of practice of any health care professional and does not diminish or impair any requirement for or regulation of consent to health care treatment.

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5. The commissioner may make regulations to implement this section.

§ 2. This act shall take effect on the one hundred eightieth day after it shall have become a law. Effective immediately, the commissioner of health is authorized to make regulations and take any other actions necessary to implement section 280-d of the public health law.