Louisiana Revised Statutes 28:230 – A. The physician or provider may subject a principal determined to be incapable pursuant to R.S. 28:226 to behavioral health treatment in a manner contrary to the principal’s wishes
Terms Used In Louisiana Revised Statutes 28:230
- administrator: means a person in charge of a treatment facility or his deputy. See Louisiana Revised Statutes 28:221
- advance directive: means a written document voluntarily executed by a principal in accordance with the requirements of this Part and includes a declaration or the appointment of a representative or both. See Louisiana Revised Statutes 28:221
- Behavioral health: is a term used to refer to both mental health and substance use. See Louisiana Revised Statutes 28:2
- Behavioral health treatment: means treatment of mental illness with psychotropic medication, admission to and retention in a treatment facility, or outpatient services. See Louisiana Revised Statutes 28:221
- Continuance: Putting off of a hearing ot trial until a later time.
- Diagnosis: means the art and science of determining the presence of disease in an individual and distinguishing one disease from another. See Louisiana Revised Statutes 28:2
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Gravely disabled: means the condition of a person who is unable to provide for his own basic physical needs, such as essential food, clothing, medical care, or shelter, as a result of serious mental illness or a substance-related or addictive disorder and is unable to survive safely in freedom or protect himself from serious physical harm or significant psychiatric deterioration. See Louisiana Revised Statutes 28:2
- Incapable: means that, due to any infirmity, the principal is currently unable to make or to communicate reasoned decisions regarding the principal's behavioral health treatment. See Louisiana Revised Statutes 28:221
- Mental health advocacy service: means a service established by the state of Louisiana for the purpose of providing legal counsel and representation for persons with mental illness or substance-related or addictive disorders and for ensuring that the legal rights of those persons are protected. See Louisiana Revised Statutes 28:2
- Patient: means any person detained and taken care of as a person who has a mental illness or person who is suffering from a substance-related or addictive disorder. See Louisiana Revised Statutes 28:2
- Physician: means an individual licensed to practice medicine by the Louisiana State Board of Medical Examiners. See Louisiana Revised Statutes 28:221
- Principal: means an individual who has executed an advance directive for behavioral health treatment. See Louisiana Revised Statutes 28:221
- Provider: means a behavioral health treatment provider. See Louisiana Revised Statutes 28:221
- Psychiatrist: means a physician who has at least three years of formal training or primary experience in the diagnosis and treatment of mental illness. See Louisiana Revised Statutes 28:2
- Representative: means a competent adult validly appointed under La. See Louisiana Revised Statutes 28:221
- Treating physician: means the physician who has primary responsibility for the behavioral health treatment of the principal. See Louisiana Revised Statutes 28:221
- Treatment: means an active effort to accomplish an improvement in the mental condition or behavior of a patient or to prevent deterioration in his condition or behavior. See Louisiana Revised Statutes 28:2
- Treatment facility: includes but is not limited to the following, and shall be selected with consideration of first, medical suitability; second, least restriction of the person's liberty; third, nearness to the patient's usual residence; fourth, financial or other status of the patient; and fifth, patient's expressed preference, except that such considerations shall not apply to forensic facilities:
(i) Public and private behavioral health services providers licensed pursuant to La. See Louisiana Revised Statutes 28:2
A. The physician or provider may subject a principal determined to be incapable pursuant to La. Rev. Stat. 28:226 to behavioral health treatment in a manner contrary to the principal’s wishes as expressed in an advance directive for behavioral health treatment only:
(1) In case of an emergency when the principal’s instructions have not been effective in reducing the severity of the behavior that has caused the emergency. An emergency occurs when the principal presents an imminent and significant danger of physical harm to himself or others.
(2) When the treating physician determines that psychotropic medication is essential and after compliance with the following procedures:
(a) When a principal’s advance directive for behavioral health treatment or his representative refuses medication that the treating physician believes is essential, the director or administrator of the treatment facility shall conduct an administrative review to determine whether the principal should be forcibly medicated contrary to his wishes.
(b) The director shall provide written notice to the principal, his representative, if any, and an attorney from the Mental Health Advocacy Service (MHAS) no less than forty-eight hours, excluding weekends and holidays, before the administrative review. The notice shall include the time and place of the administrative review, the diagnosis, and reasons why the physician believes the medication is necessary. The principal’s expressed wishes shall be followed pending the administrative review. The administrative review shall be held no later than seventy-two hours after the time that the MHAS has been notified, excluding weekends and holidays, unless the patient and the facility agree to a continuance.
(c) The MHAS attorney shall represent the principal at the administrative review unless the principal chooses someone else to represent him.
(d) A principal may be medicated contrary to the wishes expressed in his advance directive if, based on a review of the advance directive and the reasons stated therein, the patient’s medical chart, a personal examination of the patient, the wishes of the principal’s representative, if any, and the recommendations of the treating physician, the director determines that the medication is medically essential. The director shall consider the following criteria in making that decision:
(i) The patient has a mental illness and is dangerous to himself or others or gravely disabled without the medication.
(ii) The medication is the least restrictive alternative.
(iii) The medication is the most medically appropriate.
(iv) The medication offers a significant likelihood of improvement in the patient’s condition or a speedier recovery and his condition is of such severity that unless the medication is administered the patient’s medical condition is very unlikely to improve.
(v) The expected benefits from the medication outweigh the known risks and potential side effects.
(vi) All other reasonable alternatives, including those set forth in the advance directive, have been exhausted.
(e) The director shall require the attendance of the patient at the hearing unless extraordinary circumstances exist precluding his attendance. The principal and the hospital have the right to present evidence and cross-examine witnesses.
(f) The director’s decision shall be in writing, shall address each of the criteria, and shall give reasons for the decision. All of the criteria in Subparagraph (d) of this Paragraph shall be met in order to medicate the principal against his expressed wishes.
(g) The director’s decision to administer medication contrary to the advance directive should specify the length of time the decision to medicate the principal is to remain valid. The decision shall be effective for no more than sixty days or termination of the principal’s stay at the treatment facility, whichever occurs first, unless a new request for an administrative review is made prior to the expiration of the original order and the patient is still hospitalized. If at any time the director believes that the medication is no longer necessary, he shall order the measures discontinued.
(h) The director shall provide the principal, his representative, if any, and the attorney from the Mental Health Advocacy Service with a copy of the decision.
(i) For purposes of this Section, the director of a treatment facility must be a psychiatrist who is not involved in providing medication to the patient. If the director does not meet those criteria, he shall designate a psychiatrist who is not involved in the medication of the patient.
B. An advance directive shall not limit the authority provided in this Chapter to take a principal into protective custody or to involuntarily admit or commit a principal to a treatment facility.
C. An advance directive shall not authorize admission to or retention in a treatment facility for a period in excess of fifteen days.
Acts 2001, No. 755, §1; Acts 2017, No. 369, §2.