W. Va. Code R. § 64-59-7 - Medical and Dental Care, Other Therapies, and Informed Consent

7.1. Physical Examination. All patients in a mental health facility shall have a physical health examination at least every six months and shall receive treatment and care for physical illness consistent with the standard of care.
7.2. Freedom from Unnecessary or Excessive Medication. All patients of mental health facilities have a right to be free of excessive medication unless otherwise clinically indicated.
7.3. Limits on Use of Medication. A medication shall not be used as punishment, for the convenience of staff, or as a substitute for a program of treatment, or in quantities that interfere with the patient's treatment program: Provided, That nothing in this rule prohibits the use of medication that is clinically indicated and prescribed consistent with the applicable standard of care to manage the patient as clinically necessary or to promote the discharge of the patient, or both.
7.4. Medication Explained to Patient. The use of medication shall be fully explained to patients, and documentation of these explanations made part of the treatment team member's documentation and progress notes.
7.5. Dental Care. Dental care including screening and treatment shall be provided for all long-term patients in a state hospital, and when identified as a need by the patient's treatment team.
7.6. Speech Pathology, Audiology, Language Therapy. Speech, language and audiology screening, evaluation and therapy services shall be conducted and provided by qualified clinicians when clinically indicated for a patient.
7.7. Physical and Occupational Therapy. Physical and occupational therapy screening, evaluation and therapy services shall be conducted and provided by qualified clinicians when clinically indicated for a patient.
7.8. Voluntary Patients and Non-Committed Patients' Consent to Treatment. No treatment may be given to any voluntary patient who has not been formally committed by final proceedings pursuant to W. Va. Code § 27-5-4, § 27-6A-2(b) or § 27-6A-3 without his or her written consent. The consents shall be obtained as a part of the admission package. If no informed consent is documented in the chart, the physician or person prescribing treatment shall provide such information to the patient before treatment is begun.
7.9. Consent to Treatment When Admitted for Examination. Except with respect to psychiatric emergencies, an individual has a right to refuse treatment. Individuals are sometimes admitted to a mental health facility under "custody for examination" procedures for whom treatment could be provided with minimal risk, but who, because of their mental condition do not refuse treatment but are not able to give informed consent to the treatment. In some cases, conditions exist which, if not treated, reasonably can be expected to cause permanent damage or severe pain. Treatment provided under such circumstances shall be done only if consistent with the applicable standard of care and the needs of the patient.
7.9.1. There is no statutory authority to provide treatment prior to actual commitment in the absence of informed consent. The procedures outlined in this rule are provided for use only when:
(1) treatment is not refused;
(2) no informed consent is forthcoming;
(3) the risk of harm from failure to treat is demonstrably greater than the risks from treatment; and
(4) the individual is unable to make any judgment to consent or refuse treatment.
7.9.2. When an individual is admitted to a mental health facility under "custody for examination," the individual shall be evaluated without the use of medication. If, as the result of examination, it is determined that the individual does exhibit signs and symptoms of psychiatric or other illnesses for which a recognized, commonly accepted course of treatment can be prescribed, the staff performing the evaluation shall follow the following procedures:
7.9.2.a. Determine whether the individual is clinically competent to understand the nature and purpose of the proposed treatment, as well as its prospective benefits and possible side effects. Both the examining physician and the patient advocate, at a minimum, shall agree to the individual's competence.
7.9.2.b. If the individual is determined to be able to make an informed decision relative to treatment, the proposed treatment shall be explained in detail and written consent to treatment shall be requested. No individual shall be asked to sign consent to treatment until the individual's competence to give consent has been determined. Treatment may be initiated if the individual gives consent, but a refusal to consent shall be honored and no treatment shall thereafter be forced upon the individual prior to receiving a written commitment order from the circuit court pursuant to a commitment hearing.
7.9.2.c. If it is determined that the individual is not capable of giving informed consent to treatment, the physician shall determine whether there is a significant likelihood that the symptoms for which the treatment is proposed are likely to become either more severe or long-lasting or both if treatment is withheld, and whether the proposed treatment is likely to produce side effects which may be harmful to the individual. Proposed treatments shall be those which are commonly accepted and recognized as appropriate for the condition being treated. In every instance, the more conservative of the available treatment options shall be chosen.
7.9.2.d. If the physician determines that there is risk of serious deterioration in the absence of treatment and that the proposed treatment carries relatively little risk to the patient, the physician shall present to the clinical director the facts upon which these conclusions were based.
7.9.2.e. If the clinical director agrees with the recommendations, an independent evaluation by another physician qualified in psychiatry or other appropriate medical specialty shall be provided.
7.9.2.f. All steps in this procedure, as well as all the facts on which treatment decisions are based, shall be documented in the medical record, and signed by the attending physician consistent with the applicable standard of care.

The procedures outlined in this section are not intended to apply to those individuals who are in need of life-saving medication for chronic medical conditions (such as diabetes, heart disease), who have been taking the medications prior to admission, and who are not actively refusing to continue the medication, notwithstanding that they may not currently be able to give consent.

7.10. Informed Consent. Consent is not valid unless it is informed consent. To assure informed consent. the admitting physician shall explain and discuss the following with each patient:
7.10.1. The nature of the patient's mental condition;
7.10.2. The reasons for taking any proposed medication, including the likelihood of the patient's condition improving or not improving without the proposed medication;
7.10.3. That consent, once given, may be withdrawn at any time by stating the intention to any member of the treating staff;
7.10.4. The reasonable alternative treatments available, if any;
7.10.5. The type, range of frequency and amount, including the use of PRN (as needed) orders, the method (oral or injection) of administration, and the duration of taking the proposed medication;
7.10.6. The probable side effects to the proposed medication known to occur commonly, and any particular side effects likely to occur with the particular patient;
7.10.7. Possible additional side effects of the proposed medications which may occur to patients taking the medication beyond three months. The patient shall be advised that the side effects may include persistent involuntary movement of the face or mouth and might at times include similar movement of the hands and feet, and that these symptoms of tardive dyskinesia are potentially irreversible and may appear after medication has been discontinued; and
7.10.8. His or her rights under this rule.
7.10.9. This explanation and discussion shall be documented and signed by physician and patient.
7.11. Requirement for Consent. Antipsychotic medication may be administered to an adult patient only after the patient has given informed, voluntary consent in writing, except as provided in the procedures set forth in this subsection or as required by the applicable standard of care.
7.11.1. Consent shall be considered to be informed only after the patient has been provided with the information specified in subsection 7.10 of this rule by the physician prescribing the medication.
7.11.2. The patient shall be asked to sign the consent form utilized in obtaining informed consent from voluntary patients, and this signed consent form shall be included in the legal section of his or her chart. In the event that the patient has been shown the form and communicates consent but does not wish to sign the written consent form, it is sufficient for the physician to place the unsigned form in the patient's record together with the notation that while the patient understands the nature and effect of antipsychotic medication and consents to the administration of the medication, the patient does not want to sign a written consent form.
7.11.3. Consent is effective for the duration of the patient's stay in the facility unless it is revoked by the patient.
7.12. Revocation of Consent. A patient who has consented to medication may refuse a specific medication at any time, by stating or writing that he or she does not wish to take the medication. Medication may not then be given to the patient, orally or by injection, except as authorized in a psychiatric emergency. A revocation of consent shall be documented on the consent form by the treating physician and renders the previously given consent void.


W. Va. Code R. § 64-59-7

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