§230. Disregarding advance directives; circumstances

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 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.