9 CSR 10-5.180 - Advance Directives
(1) Terms defined in sections
630.005,
631.005,
632.005 and
633.005, RSMo are incorporated
by reference for use in this rule. Also, as used in this rule, unless the
context clearly indicates otherwise, the following terms shall mean:
(A) Adult-an individual eighteen (18) years
of age or older;
(B) Advance
directive-a written instrument, such as a living will or durable power of
attorney for health care, relating to the provision of health care for an
individual when that individual is in a terminal condition or is
incapacitated;
(C) Attending
physician-the physician selected by or assigned to an individual and who has
primary responsibility for the treatment and care of the individual. If more
than one (1) physician shares that responsibility, any of those physicians may
act as the attending physician;
(D)
Attorney-in-fact-an individual or corporation appointed to act as an agent of a
principal (resident or patient) in a written power of attorney for health care
allowed under law;
(E)
Competent-not having been adjudicated incapacitated;
(F) Death-prolonging procedure-any medical
procedure or intervention that, when applied to an individual, would serve only
to artificially prolong the dying process and where, in the judgment of the
attending physician pursuant to usual and customary medical standards, death
will occur within a short time whether the procedure or intervention is used.
Death-prolonging procedures shall not include administration of medication or
performance of a medical procedure considered necessary to provide comfort or
care or to alleviate pain, or the performance of any procedure to provide
nutrition or hydration;
(G)
Decision-making capacity-ability to make choices that reflect an understanding
of the nature and effect of treatment options as well as the consequences of
choices;
(H) Department
facilities-facilities operated by the department;
(I) Durable power of attorney for health
care-a written instrument executed by a competent adult, notarized and
expressly giving an agent or attorney-in-fact the authority to consent to or to
prohibit any type of health care, medical care, treatment or procedures to the
extent authorized in sections 404.800-404.865, RSMo;
(J) Health care-any treatment, service or
procedure to diagnose or treat the physical or mental condition of a resident
or patient;
(K) Health care
facility-an individual or agency licensed, certified or otherwise authorized or
permitted by law to administer health care in the ordinary course of business
or professional practice;
(L)
Incapacitated-unable by reason of any physical or mental condition to receive
and evaluate information or to communicate decisions to an extent that an
individual lacks capacity to meet essential requirements for food, clothing,
shelter, safety or other care such that serious physical injury, illness or
disease is likely to occur;
(M)
Living will-a written instrument executed by a competent adult under sections
459.010-459.055, RSMo and declaring direction for the withholding or withdrawal
of death-prolonging procedures and becoming operative if the adult is in a
terminal condition;
(N) Patient-an
individual under observation, care, treatment or rehabilitation by any hospital
or other mental health facility pursuant to the provisions of Chapter 632,
RSMo;
(O) Resident-a person
receiving residential services from a facility, other than a mental health
facility, operated by the department;
(P) Terminal condition-an incurable or
irreversible condition that, in the opinion of the attending physician, is such
that death will occur within a short time, regardless of the application of
medical procedures; and
(Q)
Voluntary resident or patient-a person who has willingly chosen or consented to
receive services from the department and who is receiving services in a
department facility, or a person for whom a guardian has been appointed under
Chapter 475, RSMo and the guardian has been authorized to admit the resident or
patient for services from the department.
(2) The department shall honor the right of
all competent adult voluntary residents and patients to make decisions
regarding their health care, including the right to accept or refuse medical or
surgical treatment, except that if a Division of Comprehensive Psychiatric
Services facility's clinical staff determines that an emergency exists because
a resident or patient is likely to do physical harm or present life-threatening
behavior to him/herself or other residents or patients, the staff may
administer psychotropic medication without the resident's or patient's consent.
All competent adult residents and patients shall have the right to execute
advance directives without regard to their voluntary or involuntary status. No
department facility shall condition the provision of care or treatment, or
otherwise discriminate against a resident or patient based on whether the
individual has executed an advance directive.
(3) Using materials prepared by the
department, all department facilities shall provide staff and community
education about advance directives and the department's policy on carrying out
those directives by department facilities.
(4) Except as provided in sections (5) and
(6), at the time an adult resident or patient is admitted to a department
facility, the facility's staff shall-
(A)
Provide written information about resident's or patient's rights to accept or
refuse death-prolonging procedures and to execute advance directives;
(B) Provide written information about the
department's policy on advance directives;
(C) Ask the resident or patient if s/he has
executed an advance directive; and
(D) At his/her request, refer a competent
adult resident or patient without an advance directive for assistance in
completing one.
(5) If,
at time of admission, department facility staff determine that a competent
adult resident or patient lacks decision-making capacity, for example, due to
intoxication or an acute episode of mental illness, the staff shall-
(A) If the resident or patient is accompanied
by a friend, relative or guardian, discuss health care decisions and advance
directives with that person as set out in section (4) of this rule;
and
(B) Document the lack of
decision-making capacity in the resident's or patient's medical record and the
discussion of health care decisions and advance directives with the friend,
relative or guardian rather than the resident or patient; or
(C) If the resident or patient is
unaccompanied, delay a discussion of health care decisions and advance
directives; and
(D) Document the
lack of decision-making capacity in the resident's or patient's medical record
and that a discussion of health care decisions and advance directives was
delayed.
(6) For a
resident or patient with whom department facility staff did not discuss health
care decisions and advance directives at the time of admission as set out in
section (4) because the resident or patient lacked decision-making capacity,
when the staff determine that the resident or patient has regained
decision-making capacity, the staff shall hold the discussion and document it
in the resident's or patient's medical record, regardless of whether the
resident or patient was accompanied at time of admission.
(7) Staff of department facilities shall
document in each adult resident's or patient's medical record whether the
resident or patient has executed an advance directive. If a resident or patient
has executed an advance directive, staff shall presume the resident or patient
was competent when the advance directive was executed and that the advance
directive was properly executed unless a court determines otherwise. Upon
permission of the resident or patient, guardian or attorneyin-fact, and if a
copy of the advance directive is provided by the resident or patient, guardian
or attorney-in-fact, staff shall place a copy of the advance directive in the
resident's or patient's medical record.
(8) Because the department has a statutory
mission to habilitate, treat or rehabilitate its residents and patients in
department facilities, it shall not withhold or withdraw-
(A) Food, hydration, antibiotics or
antiseizure medication for the purpose of ending life;
(B) Psychotropic drugs essential to treatment
of mental illness that are otherwise authorized by law or department rule;
or
(C) Any medication, medical
procedure or intervention that, in the opinion of facility staff, is necessary
to prevent the suicide of a resident or patient.
(9) When it is determined that a resident or
patient is incapacitated or in a terminal condition and that the resident or
patient has an advance directive, department facility staff shall carry out the
advance directive in the facility where the resident or patient resides unless-
(A) The resident's or patient's advance
directive specifies procedures prohibited under the department policy set out
in section (8);
(B) The resident's
or patient's attorney-in-fact under a durable power of attorney for health care
requests procedures prohibited under the department policy set out in section
(8);
(C) The resident or patient is
pregnant and has a living will that calls for withdrawing or withholding
treatment; or
(D) The head of the
facility determines that the facility is not equipped to provide acute and
specialized medical care needed by the resident or patient.
(10) If based upon section (9) of
this rule, the head of a department facility determines that the facility shall
not carry out a resident's or patient's advance directive in the facility, the
department facility staff, in conjunction with the resident or patient or the
resident's or patient's guardian or attorney-in-fact, shall take all reasonable
steps to transfer the resident or patient to a health care facility that is
equipped and willing to carry out the resident's or patient's advance
directive. At a minimum, these steps shall include, if necessary, assistance
from department facility case managers in locating a health care facility that
is equipped and willing to carry out the advance directive and case managers'
assistance with transferring the resident or patient to the health care
facility.
(11) If a resident or
patient with an advance directive is transferred from a department facility to
another health care facility at the request of the department, the department
will pay for transportation to and care in the health care facility if all
other resources available to the resident or patient have been
exhausted.
(12) A resident or
patient may revoke an advance directive at any time and in any manner by which
s/he is able to communicate, regardless of mental or physical condition. If an
incapacitated resident or patient or a resident or patient in a terminal
condition revokes an advance directive, department facility staff shall notify
the resident's or patient's attorneyin-fact or legal guardian of the revocation
and the manner by which the advance directive was revoked.
(13) If any resident or patient notifies
department facility staff in any manner by which s/he is able to communicate
that s/he wishes to revoke an advance directive, department facility staff
shall immediately document the revocation in the resident's or patient's
medical record and the manner by which the advance directive was revoked and
shall notify orally any other staff known to be involved in the resident's or
patient's health care.
(14) An
advance directive also shall be revoked upon execution of a subsequent advance
directive by the resident or patient.
(15) No department employee may recommend or
otherwise suggest to a resident or patient that the resident or patient alter
or revoke his/her advance directive.
(16) Department facility staff shall act upon
a revocation of a resident's or patient's advance directive when the resident
or patient is incapacitated or in a terminal condition and is not able to make
treatment decisions if-
(A) The revocation is
documented in the resident's or patient's medical record; or
(B) The staff member in charge of the
resident's or patient's treatment at that time has actual knowledge of the
revocation.
(17)
Department facility staff shall periodically review the status of resident's
and patient's advance directives as necessary or when requested by the resident
or patient or the guardian or attorney-in-fact.
(18) Except to the extent the right is
limited by the durable power of attorney for health care or any federal law, an
attorney-in-fact under a durable power of attorney for health care has the same
right as the resident or patient to receive information about health care
proposed for the resident or patient, to receive and review the resident's or
patient's medical records and to consent to disclosure of the medical records,
except that the right of access to medical records is not a waiver of any
evidentiary privilege.
(19) No
employee of a department facility shall serve as an attorney-in-fact under a
durable power of attorney for health care for any resident or patient receiving
care or treatment at the facility at which the employee works unless that
employee is related by marriage or consanguinity within the second degree or
unless the employee and resident or patient are members of the same community
of persons who are bound by vows to a religious life and who conduct or assist
in the conducting of religious services and actually and regularly engage in
religious, benevolent, charitable or educational ministry, or the performance
of health care services.
Notes
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No prior version found.