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SECTION 80.07
Procedures of the committees and panels
Mental Hygiene (MHY) CHAPTER 27, TITLE E, ARTICLE 80
§ 80.07 Procedures of the committees and panels.

(a) The committee shall receive declarations filed on behalf of
patients, as follows:

1. A declaration may be filed by a declarant on behalf of any patient,
residing within the geographic area served by the committee, who is
believed to be in need of major medical treatment and to lack the
capacity to consent to or refuse major medical treatment. Jurisdiction
by the surrogate decision-making committee may continue throughout all
subsequent proceedings related to the major medical treatment proposed
in the initial declaration notwithstanding the patient's transfer
outside of the geographic region or discharge from the facility.

2. A declaration shall be signed by the declarant and shall state the
following:

(i) the patient does not have a parent, spouse, adult child, committee
of the person, conservator or legal guardian, or other available
surrogate authorized by regulation in accordance with section 33.03 of
this chapter; or that the patient's parent, spouse, adult child,
committee of the person, conservator, legal guardian, or other available
surrogate authorized by regulation in accordance with section 33.03 of
this chapter is willing to allow the panel to act upon the declaration;

(ii) the reasons for believing that the patient lacks the capacity to
consent to or refuse major medical treatment and the factual and
professional basis for this belief, which may include an independent
evaluation by a person qualified to assess the patient's capacity to
make such medical decisions;

(iii) a description of the proposed major medical treatment and of the
patient's medical condition which requires such treatment; the risks,
alternatives and benefits to the patient of such treatment; a statement
of declarant's opinion of whether the best interests of the patient
would be promoted by such treatment and the basis for the opinion; the
patient's view of the proposed treatment, if known; and such other
information as may be necessary to establish the need for such
treatment.

(b) Upon receipt of the declaration, the committee shall send a copy
of the declaration forthwith to the patient and to the patient's parent,
spouse, adult child, or other available surrogate authorized by
regulation in accordance with section 33.03 of this chapter, committee
of the person, conservator, legal guardian or correspondent, if known,
the director of the patient's residential mental hygiene facility, if
any, or such director's designee and the mental hygiene legal service
which serves the same region as the committee. The chairperson of the
committee or his or her designee shall assign the declaration to one of
its panels, whose members will also receive a copy of the declaration.
The declaration shall be accompanied by a notice of the time, place and
date of the panel hearing on the declaration. The hearing shall be
scheduled no earlier than five days after such declaration is sent,
except where medical circumstances require a more immediate hearing or
where the consent of the patient's parent, spouse, adult child,
committee of the person, conservator, legal guardian or correspondent,
if known, the director of the patient's mental hygiene residential
facility, if any, or such director's designee and the mental hygiene
legal service has been obtained for conducting a more immediate hearing.
The notice shall inform recipients of the procedures of the panels,
including the opportunity for the recipient to be present and to be
heard.

(c) The declaration shall, prior to the date of the panel hearing, be
reviewed by the panel chairman or his designee to ascertain whether
additional information may be necessary to assist the panel in
determining the patient's need for surrogate decision-making and in
determining whether the patient's best interests will be served by
consenting to or refusing major medical treatment on the patient's
behalf. The panel chairman or his designee may:

1. Request and shall, notwithstanding any other law to the contrary,
be entitled to receive from any physician, mental hygiene facility or
health care facility or person licensed to render health care, any
information which is relevant to the patient's need for surrogate
decision-making or for the proposed major medical treatment.
Information, books, records or data which are confidential as provided
for by law shall be kept confidential by the panel and any limitations
on the further release thereof imposed by law upon the party furnishing
the information, books, records or data shall apply to the panel.

2. Order an independent assessment of the patient, or of information
concerning the patient, to be undertaken, including obtaining an
independent opinion, where such independent assessment or opinion is
determined by the panel chairman to be necessary.

3. Consult with any other person who might assist in such a
determination of the best interests of the patient, including
ascertainment of the personal beliefs and values of the patient.

(d) The panel shall conduct a hearing, at which the patient, any other
person requested by the patient to appear on his or her behalf, and the
mental hygiene legal service have the right to be present and to be
heard. Where practicable, the panel members shall personally interview
and observe the patient prior to making their decision. The panel shall
be empowered to administer oaths to and to take testimony from any
person who might assist the panel in making its decision. Such hearing
shall be recorded and any information, record, assessment or
consultation submitted to or considered by the panel shall be maintained
as part of the record of the deliberations of the panel. Formal rules of
evidence shall not apply to the proceedings of the panel.

(e) The panel shall make a determination, based on clear and
convincing evidence, as to whether the patient is in need of surrogate
decision-making; provided, however, that minor patients shall be deemed
to lack such capacity, to the extent that minors generally are deemed to
lack such capacity. Unless three panel members concur in the
determination that the patient is in need of surrogate decision-making,
the patient shall be deemed not to need surrogate decision-making. In
such event, a record of such determination shall be made and the
patient's consent to such treatment, if given, shall constitute legally
valid consent.

(f) For any patient determined to be in need of surrogate
decision-making, the panel shall make a further determination as to
whether the proposed major medical treatment is or is not in the best
interests of the patient based on a fair preponderance of the evidence;
provided, however, that evidence of a previously articulated preference
by the patient concerning the proposed treatment shall be given full
consideration by the panel. The panel shall provide a record of its
determination which consents to or refuses major medical treatment on
the patient's behalf, which shall reflect the opinion of at least three
of the panel members. If the panel determination consents to such
treatment, such consent shall constitute legally valid consent to such
treatment in the same manner and to the same extent as if the patient
were able to consent to or refuse such treatment on his or her own
behalf.

(g) If at anytime during the pendency of a proceeding, a parent,
spouse or adult child, or other available surrogate authorized by
regulation in accordance with section 33.03 of this chapter objects to
the panel acting upon the declaration or a committee of the person,
conservator or legal guardian who is legally authorized to consent to or
refuse such treatment on the patient's behalf, objects to the panel
acting upon the declaration, the proceedings regarding such patient
shall cease. A record of such person's objection shall be included as
part of the record as provided for by this section.

(h) A copy of any determination made pursuant to this section shall
contain a statement describing the right to appeal set forth herein and
shall promptly be sent or provided to the patient; other persons
requested by the patient to appear on his or her behalf; declarant;
parent, spouse, adult child, legal guardian, committee of the person, or
other available surrogate authorized by regulation in accordance with
section 33.03 of this chapter or, in the absence of such persons, known
correspondents of the patient; the director of the patient's mental
hygiene residential facility, if any; and the mental hygiene legal
service. Where practicable, the panel shall reach its determination or
determinations at the time of the hearing and provide notice to the
above persons forthwith. The terms of such determinations and the giving
of such notice shall be made a part of the record. The decision shall
state when the consent shall become effective after such determination
has been provided or mailed to the parties specified in this section.
The panel may delay the effective date of its decision for up to five
days in order to enable an objecting party to exercise the right of
appeal, pursuant to section 80.09 of this article.