26:2H-109 Determination of patient's decision-making capacity.

8. a. The responsible mental health care professional shall determine whether the patient lacks the capacity to make a particular mental health care decision. The determination shall: be stated in writing; include the responsible mental health care professional's opinion concerning the nature, cause, extent, and probable duration of the patient's incapacity; and be made a part of the patient's medical records.

b. The responsible mental health care professional's determination of a lack of decision-making capacity shall be confirmed by one or more mental health care professionals. The opinion of the confirming mental health care professional shall be stated in writing and made a part of the patient's medical records in the same manner as that of the responsible mental health care professional.

c. A mental health care professional designated by the patient's advance directive as a mental health care representative shall not make the determination of a lack of decision-making capacity.

d. The responsible mental health care professional shall inform the patient, if the patient has any ability to comprehend that he has been determined to lack decision-making capacity, and the mental health care representative that:

(1) the patient has been determined to lack decision-making capacity to make a particular mental health care decision;

(2) each has the right to contest this determination; and

(3) each may have recourse to the dispute resolution process established by the psychiatric facility pursuant to section 14 of P.L.2005, c.223 (C.26:2H-115). Notice to the patient and the mental health care representative shall be documented in the patient's medical records.

e. A determination of lack of decision-making capacity under this act shall be solely for the purpose of implementing an advance directive for mental health care in accordance with the provisions of this act, and shall not be construed as a determination of a patient's incapacity for any other purpose.

f. For the purposes of this section, a determination that a patient lacks decision-making capacity shall be based upon, but need not be limited to, an evaluation of the patient's ability to understand and appreciate the nature and consequences of a particular mental health care decision, including the benefits and risks of, and alternatives to, the proposed mental health care, and to reach an informed decision.

g. For the purposes of this section, "mental health care decision" includes a decision to modify, revoke, or suspend an advance directive for mental health care as provided in subsection f. of section 5 of P.L.2005, c.233 (C.26:2H-106).

L.2005, c.233, s.8; amended 2013, c.103, s.72.