This regulation establishes standards and procedures for obtaining informed consent to significant procedures (such as psychotropic medications and electroconvulsive therapy) from patients at Oregon State Hospital, a state psychiatric institution serving adults 18 and older. Facility personnel must obtain written informed consent before administering significant procedures, with specific exceptions for emergencies, legally incapacitated patients, and court-ordered treatment. The rules detail capacity determinations, information disclosure requirements, and documentation obligations for treating physicians and psychiatric nurse practitioners.
View official sourceOregon Health Authority Health Systems Division: Behavioral Health Services - Chapter 309 Division 114 INFORMED CONSENT TO TREATMENT AND TRAINING BY PATIENTS IN STATE INSTITUTIONS 309-114-0000 Purpose Purpose. These rules prescribe standards and procedures to be observed by personnel of state institutions operated by the Division in obtaining informed consent to significant procedures, as defined by these rules, from patients of such state institutions. These rules do not apply to routine medical procedures. Administration of significant procedures without informed consent is only permitted as described in OAR 309-114-0010(1)(b). The purpose of these rules is to assure that the rights of patients are protected with respect to significant procedures. Statutory/Other Authority: ORS 179.040 & 413.042 Statutes/Other Implemented: ORS 179.321, 426.070 & 426.385 History: BHS 13-2025, amend filed 05/06/2025, effective 05/11/2025 BHS 26-2024, temporary amend filed 11/13/2024, effective 11/13/2024 through 05/11/2025 MHS 5-2016, f. & cert. ef. 5-25-16 MHS 5-2015, f. & cert. ef. 8-28-15 MHS 9-2014, f. & cert. ef. 4-24-14 MHS 12-2013(Temp), f. & cert. ef. 10-29-13 thru 4-27-14 MHS 12-2010, f. & cert. ef. 9-9-10 MHS 6-2008, f. & cert. ef. 7-25-08 MHS 2-2008(Temp), f. & cert. ef. 4-7-08 thru 10-4-08 MHS 14-2007(Temp), f. 11-30-07, cert. ef. 12-1-07 thru 5-29-08 MHD 3-1983, f. 2-24-83, ef. 3-26-83 309-114-0005 Definitions As used in these rules: (1) "Authorized Representative" or "representative" means an individual who represents a party in a contested case hearing; the representative must be supervised by an attorney that is licensed by the Oregon State Bar. (2) "Chief Medical Officer" or “CMO” means the physician or physician’s designee appointed pursuant to ORS 426.020 who is responsible for the administration of medical treatment at each state institution and the supervision of physicians and practitioners who are employed by the hospital or are contracted to provide services at the hospital. (3) “Committed” or “Commitment” means an individual who is 18 years or older and is admitted for inpatient care and/or treatment at OSH under ORS 161.327, 161.328, 161.370, 179.473, 419C.396, 419C.529, 426.130, 427.215 or 426.220, 426.701, 426.702 when the individual's guardian or health care representative is unavailable or unable to consent. (4) “Dangerousness” means that more likely than not either: (a) Physical harm that may be inflicted by an individual upon their own body including: (A) Verbal or nonverbal threats that an individual will inflict physical harm on their body, attempts to die by suicide, or other acts that result in the infliction of physical harm on themselves; or (B) Historical patterns of behavior as that demonstrate that a patient is likely to engage in self-harm behaviors. This determination does not require an imminent risk of physical harm; or (b) Physical harm may be inflicted by an individual upon another individual, including: (A) Acts, behaviors or threats, including verbal threats, which have caused such harm, or which would place a reasonable individual in reasonable fear of sustaining such harm; or (B) Historical patterns of behavior demonstrating that a patient is likely to cause physical harm or would place a reasonable individual in reasonable fear of sustaining such harm. This determination does not require an imminent risk of physical harm. (5) "Division" means the Oregon State Hospitals Division of the Oregon Health Authority. (6) "Guardian" means a legal guardian who is an individual or entity appointed by a court of law to make decisions on behalf of another individual, including but not limited to a legally incapacitated individual. (7) “Health Care Representative” means an individual who has authority to make health care decisions for a patient. (8) “Independent Examining Practitioner” is a board-eligible psychiatrist or licensed psychiatric nurse practitioner, who must have been subjected to review by the medical staff executive committee as to qualifications to make such an examination, must have been provided with a copy of administration rules OAR 309-114-0000 through 309-114-0025 and must have participated in a training program regarding these rules, their meaning and application. The independent examining practitioner must not be directly involved in the patient’s current or past treatment or diagnosis, excluding time spent solely as an on-call provider. (9) "Legally Incapacitated" means having been found by a court of law under ORS 426.295 to be unable, without assistance, to properly manage or take care of one's personal affairs, or who is an individual under guardianship. (10) "Material Risk." A risk is material if it may have a substantial adverse effect on the patient's psychological or physical health, or both. Tardive dyskinesia is a material risk of neuroleptic medication. Other risks include, but are not limited to raised blood pressure, onset of diabetes and metabolic changes. (11) Oregon State Hospital” or “OSH” or “hospital” means any campus of the Oregon State Hospital system providing inpatient care and/or treatment to individual who are 18 years or older whether the program where the individual is receiving care and/or treatment is licensed at hospital level of care or other licensed level of care. (12) "Patient" means an individual who is 18 years or older and receiving inpatient care and/or treatment in a state institution, whether the program where the individual is receiving care and/or treatment is licensed at hospital level of care or other licensed level of care. (13) Patient with a “grave disability” means a patient who: (a) Is in danger of serious physical harm to their health or safety absent the proposed significant procedures; or (b) Manifests severe deterioration in routine functioning evidenced by loss of cognitive or volitional control over their actions which is likely to result in serious harm absent the proposed significant procedures. (14) "Individual Committed to the Division" or "Individual" means an individual who is 18 years or older and is admitted at OSH for inpatient care and/or treatment under ORS 161.327, 161.328, 161.370, 179.473, 419C.396, 419C.529, 426.130, 426.220, 426.701, 426.702 or 427.215. (15) "Psychiatric Nurse Practitioner," means a registered nurse with prescription authority who independently provides health care to clients with mental and emotional needs or disorders. (16) “Routine Medical Procedure” means a procedure customarily administered by facility medical staff under circumstances involving little or no risk of causing injury to a patient including, but not limited to physical examinations, blood draws, influenza vaccinations, tuberculosis (TB) testing, human immunodeficiency virus (HIV) testing and hygiene. (17) "Significant Procedure" means a diagnostic or treatment modality and all significant procedures of a similar class that pose a material risk of substantial pain or harm to the patient such as, but not limited to psychotropic medication and electro-convulsive therapy. Significant procedures do not include routine medical procedures. (18) “Significant Procedures of a Similar Class” means a diagnostic or treatment modality that presents substantially similar material risks as the significant procedure listed on the treating physician’s or psychiatric nurse practitioner's informed consent form and is generally considered in current clinical practice to be a substitute treatment or belong to the same class of medications as the listed significant procedure. (a) For purposes of these rules, medications listed in subsections 18 (a)(A) through 18(a)(F) of this rule must be considered the same or similar class of medication as other medications in the same subsection: (A) All medications used under current clinical practice as antipsychotic medications including typical and atypical antipsychotic medications; (B) All medications used under current clinical practice as mood stabilizing medications; (C) All medications used under current clinical practice as antidepressants; (D) All medications used under current clinical practice as anxiolytics; (E) All medications used under current clinical practice as psychostimulants; and (F) All medications used under current clinical practice as dementia cognitive enhancers. (b) Significant procedures of the same or similar class do not need to be specifically listed on the treating physician's or psychiatric nurse practitioner's form. (19) "State Institution" or "Institution" means any campus of the Oregon State Hospital system providing inpatient care and/or treatment to individuals who are 18 years or older. (20) "Superintendent" means the executive head of the Oregon State Hospital system, or the superintendent's designee. Statutory/Other Authority: ORS 179.040 & 413.042 Statutes/Other Implemented: ORS 179.321, 183.458, 426.070 & 426.385 History: BHS 13-2025, amend filed 05/06/2025, effective 05/11/2025 BHS 26-2024, temporary amend filed 11/13/2024, effective 11/13/2024 through 05/11/2025 BHS 20-2024, amend filed 07/23/2024, effective 07/23/2024 BHS 1-2021, amend filed 01/15/2021, effective 01/15/2021 BHS 9-2020, temporary amend filed 06/30/2020, effective 06/30/2020 through 12/26/2020 BHS 17-2018, amend filed 08/01/2018, effective 08/13/2018 MHS 5-2016, f. & cert. ef. 5-25-16 MHS 8-2015(Temp), f. & cert. ef. 11-24-15 thru 5-20-16 MHS 5-2015, f. & cert. ef. 8-28-15 MHS 2-2015(Temp), f. & cert. ef. 4-24-15 thru 10-20-15 MHS 15-2014(Temp), f. & cert. ef. 12-1-14 thru 5-29-15 MHS 4-2011, f. & cert. ef. 5-19-11 MHS 13-2010(Temp), f. & cert. ef. 11-19-10 thru 5-18-11 MHS 12-2010, f. & cert. ef. 9-9-10 MHS 5-2010(Temp), f. & cert. ef. 3-12-10 thru 9-8-10 MHS 6-2009, f. & cert. ef. 12-28-09 MHS 3-2009, f. & cert. ef. 6-26-09 MHS 2-2009(Temp), f. & cert. ef. 4-2-09 thru 7-22-09 MHS 1-2009(Temp), f. & cert. ef. 1-23-09 thru 7-22-09 MHS 6-2008, f. & cert. ef. 7-25-08 MHS 2-2008(Temp), f. & cert. ef. 4-7-08 thru 10-4-08 MHS 14-2007(Temp), f. 11-30-07, cert. ef. 12-1-07 thru 5-29-08 MHD 3-1988, f. 4-12-88, cert. cert. ef. 6-1-88 MHD 3-1983, f. 2-24-83, ef. 3-26-83 309-114-0010 General Policy on Obtaining Informed Consent to Treatment and Training (1)(a) Basic Rule. Patients, guardians, or healthcare representatives may refuse any significant procedure and may withdraw at any time consent previously given to a significant procedure. Any refusal or withdrawal or withholding of consent must be documented in the patient's record. (b) Personnel of a state institution must not administer a significant procedure to a patient unless written informed consent is obtained from or on behalf of the patient in the manner prescribed in these rules, except as follows: (A) Administration of significant procedures to legally incapacitated patients as provided in section (6) of this rule; (B) Administration of significant procedures without informed consent in emergencies under OAR 309-114-0015; (C) Involuntary administration of significant procedures with good cause to persons committed to the Division under OAR 309-114-0020; or (D) Involuntary administration of significant procedures pursuant to a valid court order. (2) Capacity of the patient: In order to consent to, or refuse, withhold, or withdraw consent to significant procedures, the patient must have the capacity to make a decision concerning acceptance or rejection of a significant procedure, as follows: (a) Unless adjudicated legally incapacitated for all purposes or for the specific purpose of making treatment decisions, a patient must be presumed competent to consent to, or refuse, withhold, or withdraw consent to significant procedures. (b) An individual committed to the Division may be deemed unable to consent to or refuse, withhold, or withdraw consent to a significant procedure only if the individual currently demonstrates an inability to reasonably comprehend and weigh the risks and benefits of the proposed procedure, alternative procedures, or no treatment at all including, but not limited to, all applicable factors listed in (3)(a) of this rule. (c) The patient’s current inability to provide informed consent is to be documented in the patient's record and supported by the patient’s statements or behavior, and may be evidenced in the treating physician’s or psychiatric nurse practitioner's informed consent form, the evaluation form by the independent examining physician and forms approving or disapproving the procedure by the superintendent or chief medical officer. (d) An individual committed to the Division must not be deemed unable to consent to or refuse, withhold, or withdraw consent to a significant procedure merely by reason of one or more of the following facts: (A) The individual has been involuntarily committed to the Division; (B) The individual has been diagnosed as mentally ill; (C) The individual has disagreed or now disagrees with the treating physician's or psychiatric nurse practitioner’s diagnosis; or (D) The individual has disagreed or now disagrees with the treating physician's or psychiatric nurse practitioner’s recommendation regarding treatment. (e) If a court has determined that a patient is legally incapacitated, then consent must be sought from the legal guardian. (3)(a) Procedures for Obtaining Informed Consent and Information to be Given: The individual from whom informed consent to a significant procedure is sought must be given: (A) Information, orally and in writing, the substance of which is to be found on the treating physician's or psychiatric nurse practitioner's informed consent form; (B) In the case of medication, an attached preprinted information sheet on the risks and benefits of the medication listed on the treating physician's or psychiatric nurse practitioner's form; and (C) All written materials under this rule in English. However, if the institution has reason to believe a patient has limited English language proficiency or the patient requests it, then the institution must make reasonable accommodations to provide the patient with meaningful access to the information, such as providing the patient with copies of the materials in the patient's native language if the materials are readily available in that language or providing the opportunity to have an interpreter orally translate written materials into the patient's native language. (b) The information given must describe: (A) The nature and seriousness of the patient's mental illness or condition; (B) The purpose of the significant procedures listed on the treating physician’s or psychiatric nurse practitioner's form, the intended outcome and the risks and benefits of the procedures. However, specific information about significant procedures of a similar class must not be provided to or discussed with the patient; (C) Any alternatives, particularly alternatives offering less material risks to the proposed significant procedure that are reasonably available and reasonably comparable in effectiveness; (D) If the proposed significant procedure is medication, facility medical staff must give the name, dosage range, and frequency of administration of the medication listed on the treating physician’s or psychiatric nurse practitioner's form, and must explain the material risks of the medication at that dosage range. (E) The side effects of the intended medication or electro-convulsive therapy; (F) The predicted medical, psychiatric, social, or legal consequences of not accepting the significant procedure or any comparable procedure, including any potential risk the patient represents to the health and safety of the patient, or others, which may include, but is not limited to, a consideration of the patient's history of violence and its relationship to mental health treatment if they do not receive the significant procedure; (G) That consent may be refused, withheld or withdrawn at any time; (H) Any additional information concerning the proposed significant procedure requested by the patient. (c) The treating physician or psychiatric nurse practitioner intending to administer a significant procedure must document in the patient's chart that the information required in subsection (3)(b) of this rule was explained and that the patient, guardian, or healthcare representative explicitly consented, refused, withheld or withdrew consent. The treating physician or psychiatric nurse practitioner may document this by completing the informed consent form and make it part of the patient's record. (4) When discussing the significant procedure with the treating physician or psychiatric nurse practitioner, the patient may request additional information about the significant procedure pursuant to OAR 309-114-0010(3)(a)(H) and present additional information relevant to making their decision. (5) Voluntary Consent: Consent to a proposed significant procedure must be given voluntarily, free of any duress or coercion. Subject to the provisions of OAR 309-114-0020, the decision to refuse, withhold or withdraw consent previously given must not result in the denial of any other benefit, privilege, or service solely on the basis of refusing, withholding or withdrawing consent. A voluntary patient may be discharged from the institution if offered procedures are refused. (6) Obtaining Consent with Respect to Legally Incapacitated Patients: A state institution may not administer a significant procedure to a legally incapacitated patient without the consent of the guardian, except in the case of an emergency under OAR 309-114-0015, where the institution has good cause to involuntarily administer a significant procedure under 309-114-0020, or pursuant to a valid court order. In order to prove good cause, the institution must prove 309-114-0020(1)(a) and (1)(d) in reference to the guardian and 309-114-0020(1)(b) and (1)(c) in reference to the patient. (7) Reports of Progress: A patient, guardian, or healthcare representative must, upon request, be informed of the progress of the patient during administration of the significant procedure. Statutory/Other Authority: ORS 179.040 & 413.042 Statutes/Other Implemented: ORS 179.321, 426.070 & 426.385 History: BHS 13-2025, amend filed 05/06/2025, effective 05/11/2025 BHS 26-2024, temporary amend filed 11/13/2024, effective 11/13/2024 through 05/11/2025 BHS 20-2024, amend filed 07/23/2024, effective 07/23/2024 BHS 17-2018, amend filed 08/01/2018, effective 08/13/2018 MHS 5-2015, f. & cert. ef. 8-28-15 MHS 2-2015(Temp), f. & cert. ef. 4-24-15 thru 10-20-15 MHS 9-2014, f. & cert. ef. 4-24-14 MHS 12-2013(Temp), f. & cert. ef. 10-29-13 thru 4-27-14 MHS 12-2010, f. & cert. ef. 9-9-10 MHS 3-2009, f. & cert. ef. 6-26-09 MHS 1-2009(Temp), f. & cert. ef. 1-23-09 thru 7-22-09 MHS 6-2008, f. & cert. ef. 7-25-08 MHS 2-2008(Temp), f. & cert. ef. 4-7-08 thru 10-4-08 MHS 14-2007(Temp), f. 11-30-07, cert. ef. 12-1-07 thru 5-29-08 MHD 3-1988, f. 4-12-88, cert. ef. 6-1-88 MHD 3-1983, f. 2-24-83, cert. ef. 3-26-83 309-114-0015 Administration of Significant Procedures Without Informed Consent in Emergencies (1) An emergency exists if in the opinion of the chief medical officer or designee: (a) Immediate action is required to preserve the life or physical health of the patient and it is impracticable to obtain informed consent as provided in OAR 309-114-0010; or (b) Immediate action is required because the behavior of the patient creates a substantial likelihood of immediate physical harm to the patient or others in the institution and it is impracticable to obtain informed consent as provided in OAR 309-114-0010. (2) If an emergency exists, the chief medical officer or designee may administer a significant procedure to a patient without obtaining prior informed consent in the manner otherwise required by these rules provided: (a) The specific nature of each emergency and the procedure which was used to deal with the emergency are adequately documented in the patient's record and a form provided for emergency procedure is completed and placed in the patient's record; (b) Reasonable effort must be made to contact the legal guardian or healthcare representative prior to the administration of the significant procedure. If contact is not possible, notice must be given to the legal guardian or healthcare representative as soon as possible; (c) Within a reasonable period of time after an emergency procedure is administered, the treatment team must review the treatment or training program and, if practicable, implement a treatment or training program designed to correct the behavior creating the emergency; and (d) The administration of a significant procedure in an emergency situation does not allow the institution to administer these procedures, once the emergency has subsided, without obtaining informed consent. Statutory/Other Authority: ORS 179.040 & 413.042 Statutes/Other Implemented: ORS 179.321, 426.070 & 426.385 History: BHS 20-2024, amend filed 07/23/2024, effective 07/23/2024 MHS 5-2015, f. & cert. ef. 8-28-15 MHS 2-2015(Temp), f. & cert. ef. 4-24-15 thru 10-20-15 MHS 12-2010, f. & cert. ef. 9-9-10 MHS 6-2008, f. & cert. ef. 7-25-08 MHS 2-2008(Temp), f. & cert. ef. 4-7-08 thru 10-4-08 MHS 14-2007(Temp), f. 11-30-07, cert. ef. 12-1-07 thru 5-29-08 MHD 3-1988, f. 4-12-88, cert. ef. 6-1-88 MHD 3-1983, f. 2-24-83, ef. 3-26-83 309-114-0020 Involuntary Administration of Significant Procedures to Persons Committed to the Division with Good Cause (1) Good cause: Good cause exists to administer a significant procedure to an individual committed to the Division without informed consent if in the opinion of the treating physician or psychiatric nurse practitioner after consultation with the treatment team, the following factors are satisfied: (a) Pursuant to OAR 309-114-0010(2), the individual is deemed unable to consent to, refuse, withhold or withdraw consent to the significant procedure. (A) This determination must be documented on the treating physician's or psychiatric nurse practitioner's informed consent form and the independent examining practitioner's evaluation form. (B) The determination must include the specific questions asked and answers given regarding the patient's ability to weigh the risks and benefits of the proposed treatment, alternative treatment and no treatment including, but not limited to all relevant factors listed in OAR 309-114-0010(3)(b). (b) The proposed significant procedure is likely to restore or prevent deterioration of the person's mental or physical health, alleviate extreme suffering or save or extend the person's life. This factor is established conclusively for purposes of a hearing under OAR 309-114-0025 by introducing into evidence the treating physician's or psychiatric nurse practitioner's informed consent form and the independent examining practitioner's evaluation form, unless this factor is affirmatively raised as an issue by the patient or their representative at the hearing. (c) The proposed significant procedure is the most appropriate treatment for the person's condition according to current clinical practice and other less intrusive procedures have been considered and all criteria and information set forth in OAR 309-114-0010(3)(b) were considered. This factor is established conclusively for purposes of a hearing under OAR 309-114-0025 by introducing into evidence the treating physician's or psychiatric nurse practitioner's informed consent form and the independent examining practitioner's evaluation form, unless this factor is affirmatively raised as an issue by the patient or their representative at the hearing. (d) The institution made a conscientious effort to obtain informed consent from the patient. (A) This factor is established conclusively for purposes of a hearing under OAR 309-114-0025 by introducing into evidence the treating physician's or psychiatric nurse practitioner's informed consent form unless this factor is affirmatively raised as an issue by the patient or their representative at the hearing. (B) If the institution has reason to believe a patient has limited English language proficiency or the patient requests it, the institution must make reasonable accommodations to provide the patient with meaningful access to the informed consent process, such as providing the patient with the opportunity to have an interpreter orally translate written materials into the patient's native language and provide translation during the treating physician's or psychiatric nurse practitioner's attempts to obtain informed consent. (C) A "conscientious effort" to obtain informed consent means the patient's treating physician or psychiatric nurse practitioner made at least two good faith attempts to obtain informed consent by attempting to explain the procedure to the patient and documenting those efforts in the patient's record. (e) Because of the preliminary nature of their commitment, the following additional findings must be made for patients under ORS 161.370 and 419C.398 jurisdiction in order to show good cause under this rule: (A) Medication is not requested for the sole purpose of restoring trial competency; and (B) The patient is being medicated because of the patient’s dangerousness or to treat the patient’s grave disability. (2) Independent Review: Prior to granting approval for the administration of a significant procedure for good cause to an individual committed to the Division, the superintendent or chief medical officer of a state institution for the mentally ill must obtain consultation and approval from an independent examining practitioner, or if a patient refuses to be examined, the superintendent or chief medical officer must document that an independent examining practitioner made at least two good faith attempts to examine the patient. The superintendent or chief medical officer must maintain a list of independent examining practitioners and must seek consultation and approval from one of these independent examining practitioners. (3) The superintendent or chief medical officer must provide to a patient to whom a significant procedure is proposed to be administered written advance notice of the intent to seek consultation and approval of an independent examining practitioner for the purpose of administering the procedure without the patient's consent. (4) The practitioner selected to conduct the independent consultation must: (a) Review the person's medical chart including the records of efforts made to obtain the person's informed consent and (A) Personally examine the individual at least one time; or (B) If the patient refuses to be examined, the practitioner must make two good faith attempts to examine the patient. If the patient refuses to be examined during these two good faith attempts, the independent consultation and approval requirement outlined in subsection (4)(a)(A) and (4)(b) of this rule must be deemed to be fulfilled. (b) Discuss the matter with the individual to determine the extent of the need for the procedure and the nature of the person's refusal, withholding or withdrawal or inability to consent to the significant procedure. This determination as well as the supporting evidence in the form of the specific questions asked and answers given regarding the patient’s ability to weigh the risks and benefits of the proposed treatment, alternative treatment and no treatment must be documented in the patient's record; (c) Consider additional information, if any, presented prior to or at the time of examination or interview as may be requested by the individual or anyone on behalf of the person; and (d) Make a determination whether the factors required under these rules exist for the particular individual or that one or more factors are not present and complete a report of their findings which provides their approval or disapproval of the proposed significant procedure. The written report must be provided to: (A) The superintendent or chief medical officer; and (B) The individual to whom a significant procedure is proposed to be administered with a copy being made part of the person's record. (5) Superintendent's Determination: (a) The superintendent or chief medical officer must approve or disapprove of the administration of the significant procedure to an individual committed to the Division based on good cause provided that if the independent examining practitioner found that one or more of the factors required by section (1) of this rule were not present or otherwise disapproved of the procedure; the superintendent or chief medical officer must not approve the significant procedure and it must not be performed; (b) Approval of the significant procedure must be only for as long as no substantial increase in risk is encountered in administering the significant procedure or significant procedure of a similar class during the term of a person's commitment, but in no case longer than 180 days. Disapproval must be only for as long as no substantial change occurs in the person's condition during the term of commitment, but in no case longer than 180 days; (c) Written notice of the superintendent's or chief medical officer's determination must be provided to the patient and made part of the individual's record. This notice must: (A) Be delivered to the patient and fully explained by facility medical staff; (B) Include a clear statement of the decision to treat without informed consent, specific basis for the decision, what evidence was relied on to make the decision and include a clear notice of the opportunity to ask for a contested case hearing with an administrative law judge if the patient disagrees with the decision; and (C) Have an attached form with a simple procedure to request a hearing. The patient indicating in writing or verbally to any staff member a desire to challenge the institution's decision must be sufficient to request a contested case hearing pursuant to OAR 309 114 0025. The patient must have 48 hours to request a contested case hearing after receiving this notice. If the patient does not request a hearing within the 48-hour period or the patient subsequently withdraws their initial hearing request and is not already receiving the significant procedure, the institution may involuntarily administer the significant procedure. A patient retains the right to request an initial hearing on the decision to administer a significant procedure without informed consent at any time. (d) If the patient withdraws their initial request for hearing or refuses to attend the initial hearing without good cause, the administrative law judge must issue a dismissal order pursuant to OAR 137-003-0672(3). A dismissal order must allow the institution to immediately administer the significant procedure without informed consent as if the patient had never requested a hearing. If a dismissal order is issued, the patient may request a second hearing. If the patient withdraws their second request for hearing or refuses to attend the second hearing without good cause, the hearing must occur as scheduled with the institution presenting a prima facie case pursuant to ORS 183.417(4) and the administrative law judge must issue a proposed order by default. The institution must then issue a final order by default. (e) Records of all reports by independent examining practitioners of the determinations of the superintendent or chief medical officer under this rule must be maintained by the superintendent or chief medical officer in a separate file and must be summarized each year. Such summaries must show: (A) Each type of proposed significant procedure for which consultation with an independent examining practitioner was sought; (B) The number of times consultation was sought from a particular independent examining practitioner for each type of proposed significant procedure; (C) The number of times each independent examining practitioner approved and disapproved each type of proposed significant procedure; and (D) The number of times the superintendent or chief medical officer approved and disapproved each type of proposed significant procedure. (f) The summaries referred to in subsection (5)(e) of this rule must be public records and must be made available to the public during reasonable business hours in accordance with ORS Chapter 192. (6) When treatment is being administered without informed consent, the physician or psychiatric nurse practitioner must write a progress note addressing any changes in patient's capacity to give informed consent every 60 days. (7) At any time that a patient's condition changes so that there appears to their treating physician or psychiatric nurse practitioner to be a substantial improvement in the patient's capacity to consent to or refuse treatment, a formal reassessment of the patient's capacity to consent must occur as described in OAR 309-114-0010 and 309-114-0020. No order to administer treatment without informed consent in non-emergency situations must be valid for longer than 180 days or the duration of the commitment, whichever is shorter, without reestablishing the need for the order by following the procedures described in OAR 309-114-0010 and 309-114-0020. (8) When an individual is transferred to a state institution from a community hospital or another state institution where they were already being treated with a significant procedure without informed consent, the receiving institution must apply OAR 309-114-0000 through 309-114-0025 no later than 7 days after the date of admission to the new institution. A state institution can honor an existing order for involuntary administration of a significant procedure without informed consent if procedures such as those outlined in OAR 309-114-0010 through 309-114-0025 have already been applied and all necessary documentation is in the patient's file. Statutory/Other Authority: ORS 179.040 & 413.042 Statutes/Other Implemented: ORS 179.321, 426.070 & 426.385 History: BHS 13-2025, amend filed 05/06/2025, effective 05/11/2025 BHS 26-2024, temporary amend filed 11/13/2024, effective 11/13/2024 through 05/11/2025 BHS 20-2024, amend filed 07/23/2024, effective 07/23/2024 BHS 3-2023, minor correction filed 01/26/2023, effective 01/26/2023 BHS 1-2021, amend filed 01/15/2021, effective 01/15/2021 BHS 9-2020, temporary amend filed 06/30/2020, effective 06/30/2020 through 12/26/2020 BHS 17-2018, amend filed 08/01/2018, effective 08/13/2018 MHS 5-2015, f. & cert. ef. 8-28-15 MHS 2-2015(Temp), f. & cert. ef. 4-24-15 thru 10-20-15 MHS 9-2014, f. & cert. ef. 4-24-14 MHS 12-2013(Temp), f. & cert. ef. 10-29-13 thru 4-27-14 MHS 4-2011, f. & cert. ef. 5-19-11 MHS 13-2010(Temp), f. & cert. ef. 11-19-10 thru 5-18-11 MHS 12-2010, f. & cert. ef. 9-9-10 MHS 6-2010(Temp), f. & cert. ef. 3-24-10 thru 9-20-10 MHS 3-2009, f. & cert. ef. 6-26-09 MHS 1-2009(Temp), f. & cert. ef. 1-23-09 thru 7-22-09 MHS 6-2008, f. & cert. ef. 7-25-08 MHS 2-2008(Temp), f. & cert. ef. 4-7-08 thru 10-4-08 MHS 14-2007(Temp), f. 11-30-07, cert. ef. 12-1-07 thru 5-29-08 MHD 3-1988, f. 4-12-88, cert. ef. 6-1-88 MHD 3-1983, f. 2-24-83, cert. ef. 3-26-83 309-114-0025 Contested Case Hearing (1) Patient’s Rights: A patient has the right to contest the hospital’s determination that it has good cause to involuntarily administer a significant procedure without informed consent pursuant to OAR 309-114-0020(5)(c). If the patient is legally incapacitated, the guardian has the right to contest the hospital’s determination that it has good cause to involuntarily administer a significant procedure without informed consent pursuant to 309-114-0020(5)(c). (a) Instructions and a simple method of requesting such a hearing must be provided to every patient when they receive notice that the institution intends to administer a significant procedure without informed consent. The patient indicating in writing or verbally to any staff member a desire to challenge the institution’s decision must be sufficient to request a contested case hearing. (b) A patient’s verbal or written request for a hearing implies consent to the release of their Oregon State Hospital records and protected health information to their representative, the institution’s representative, and the Office of Administrative Hearings for the purpose of preparing for and conducting the contested case hearing. (c) After filing a request for an administrative hearing, an attorney or certified law student must be appointed by the Division to represent any patient who requests one. The patient has the right to be represented at the hearing by a representative appointed and paid by the state. The patient also has the right to be represented at the hearing by an attorney or certified law student of their choice and at their own expense. (d) If a patient requests a contested case hearing and is not already receiving the significant procedure pursuant to a valid physician’s or psychiatric nurse practitioner's order the patient has the right to not receive the significant procedure prior to and during the hearing. If the patient is already receiving the significant procedure pursuant to a valid physician’s or psychiatric nurse practitioner's order, the institution may continue to administer the significant procedure to the patient until the final order is issued. (2) Contested Case Hearing: The administrative hearing must conform to the requirements set forth in ORS 183.413 through 183.500, and the Attorney General’s Model Rules at OAR 137-003-0501 and the following: (a) The hearing must be held within 14 days of the date of the patient’s request, unless the patient or their representative or the state institution’s representative requests a delay for good cause or the patient or their representative and the state institution’s representative agree to a postponement. Good cause includes, but is not limited to, the following circumstances: the patient’s ward is quarantined at the time of the hearing, additional time is required to access necessary and relevant records not in the possession of the state institution, or titration of the patient’s medication is necessary to allow minimally adequate communication by the patient with their representative for purposes of the hearing. (b) These hearings are closed to all non-participants, except personnel from the institution or the Attorney General’s Office, personnel from Disability Rights Oregon, personnel from the Office of Administrative Hearings, or members of the patient’s family. Any exceptions to this policy must be agreed to in advance by the institution’s representative and the patient or their representative. The institution may exclude non-participants, otherwise allowed to attend these hearings, who are disruptive or represent a safety concern. (c) In lieu of discovery, the patient or their representative must be provided with the treating physician’s or psychiatric nurse practitioner's form, independent examining practitioner’s evaluation form, the superintendent’s or chief medical officer’s form approving or disapproving of the administration of the significant procedure, and the preprinted information regarding the risks and benefits of the proposed significant procedures. The patient or their representative may also review the patient’s chart and consult with the patient’s treating physician or psychiatric nurse practitioner. (d) The following procedures are not available in these contested case hearings: summary determination procedures as defined in OAR 137-003-580, pre-hearing motions as defined in OAR 137-003-0630, and pre-determination review procedures in OAR 137-003-0640. (e) A final order must be issued by the administrative law judge within two days, excluding weekends and holidays, after the hearing, except when the administrative law judge determines that there is good cause to delay the final order. All final orders must be issued within 3 days of the close of the hearing or the record, whichever is later, excluding weekends and holidays. A final order is effective immediately upon being signed or as otherwise provided in the order. (f) If after the hearing, the administrative law judge determines that there is an issue not raised by a party or the agency that impacts the outcome of the case, the administrative law judge must grant a continuance for good cause and inform the institution’s representative and the patient or their representative so that they may present additional arguments and evidence on that issue. (g) The administrative law judge must determine whether to affirm or reverse the state institution’s decision that it has good cause to involuntarily administer a significant procedure without informed consent from the patient as defined by the factors in OAR 309-114-0020(1) with regards to the significant procedures listed on the treating physician’s or psychiatric nurse practitioner's informed consent form. (h) A final order affirming or reversing the institution’s decision to involuntarily administer a significant procedure to the patient without informed consent includes all significant procedures listed on the treating physician’s or psychiatric nurse practitioner's informed consent form and all unlisted significant procedures of a similar class. (i) A final order approving the involuntary administration of the significant procedure without informed consent must be reexamined if the treating physician or psychiatric nurse practitioner determines that there is a substantial increase in the risk to the patient in administering the significant procedure during the term of a person's commitment, but in no case longer than 180 days. Approval of the significant procedure may also be reexamined pursuant to OAR 309-114-0020(8) if the treating physician or psychiatric nurse practitioner determines that there is substantial improvement in the patient’s capacity. (j) A final order disapproving the involuntary administration of the significant procedure without informed consent lasts for no longer than 180 days. If a substantial change in the patient’s condition occurs during this time, the institution may re-evaluate the patient using the entire OAR 309-114-0020 process, and must additionally document and explain what substantial change in the person’s capacity has occurred since the administrative law judge decision was issued. (k) If the final order reverses the institution’s decision to involuntarily administer a significant procedure and the patient is already receiving the significant procedure, then the hospital may continue to administer the significant procedure to the extent it is necessary to develop and implement a titration plan to safely discontinue the significant procedure according to current clinical practice. (l) If the patient withdraws their initial request for hearing or refuses to attend the initial hearing without good cause, the administrative law judge must issue a dismissal order pursuant to OAR 137-003-0672(3). A dismissal order must allow the institution to immediately administer the significant procedure without informed consent as if the patient had never requested a hearing. If a dismissal order is issued, the patient may request a second hearing. If the patient withdraws their second request for hearing or refuses to attend the second hearing without good cause, the hearing must occur as scheduled with the institution presenting a prima facie case pursuant to ORS 183.417(4) and the administrative law judge must issue a final order by default. The final order by default must be issued in a manner consistent with the time frames and process outlined in OAR 309-114-0025(2). (m) Any administrative law judge who must preside over a hearing regarding involuntary administration of a significant procedure without informed consent must complete agency approved training unique to administration of psychiatric treatment without consent. This training must be developed by the Division in consultation with Disability Rights Oregon. (n) Subject to the approval of the Attorney General, an agency officer or employee is authorized to appear, but not make legal argument, on behalf of the agency in contested case hearings involving the involuntary administration of a significant procedure to a patient. (A) For purposes of this rule, the term "legal argument" is used as defined in ORS 183.452 and OAR 137-003-0545. (B) When an agency officer or employee represents the agency, the presiding officer must advise such representative of the manner in which objections may be made and matters preserved for appeal. Such advice is of a procedural nature and does not change applicable law on waiver or the duty to make timely objection. Where such objections involve legal argument, the presiding officer must provide reasonable opportunity for the agency officer or employee to consult legal counsel and permit such legal counsel to file written legal argument within a reasonable time after the conclusion of the hearing. Statutory/Other Authority: ORS 179.040 Statutes/Other Implemented: ORS 179.321, ORS 426.070 & ORS 426.385 History: BHS 13-2025, amend filed 05/06/2025, effective 05/11/2025 BHS 26-2024, temporary amend filed 11/13/2024, effective 11/13/2024 through 05/11/2025 BHS 20-2024, amend filed 07/23/2024, effective 07/23/2024 MHS 15-2014(Temp), f. & cert. ef. 12-1-14 thru 5-29-15 MHS 12-2010, f. & cert. ef. 9-9-10 MHS 3-2009, f. & cert. ef. 6-26-09 MHS 6-2008, f. & cert. ef. 7-25-08 MHS 2-2008(Temp), f. & cert. ef. 4-7-08 thru 10-4-08 MHS 14-2007(Temp), f. 11-30-07, cert. ef. 12-1-07 thru 5-29-08 MHD 3-1988, f. 4-12-88, cert ef. 6-1-88 MHD 3-1983, f. 2-24-83, ef. 3-26-83