§454.3.  Consent; capacity to consent

A.  A person with a developmental disability is presumed to have capacity to give consent to a particular decision, unless and until determined otherwise.  The provisions of this Section shall apply only to persons with cognitive disabilities.

(1)  Capacity to give consent or make a particular decision exists when a person is able to comprehend the purposes, consequences, risks and benefits of the decision and any available alternatives.

(2)  Decisions regarding daily activities and matters that are not of long-term consequence may require less comprehension than decisions concerning matters that have important legal, health, safety or other long-term consequences, including medical treatment decisions, behavioral or psychiatric treatment decisions, financial matters, contractual matters, living arrangements and rights restrictions.

(3)  A decision may be expressed either orally, in writing, or by any other form of communication.

B.  The capacity of a person to consent can change and develop over time, depending upon health, environment, and other variables.

(1)  The capacity of a person to consent must be routinely assessed as decisions present themselves.

(2)  Assessment shall use current standards and assessment tools, along with input from others, including family and direct service staff who are most familiar with the person.

(3)  Lack of capacity to make a particular decision does not negate the possibility that a person may have capacity to make other decisions or later decisions.

C.  Decisions concerning matters that have important legal, health, safety or other long-term consequences shall require legally adequate consent.  Before a person with a developmental disability can be deemed to have given legally adequate consent, each of the following conditions must be met:

(1)  The person has not been placed under a judgment of interdiction or continuing tutorship that restricts the right of the person to make the decision in question.

(2)  The person has capacity to consent and has been informed of the purposes, consequences, and risks of the decision being made and the benefits of any alternative decision.

(3)  The person understands that his withholding or withdrawing of consent shall not prejudice future provision of care and services to him.

(4)  The person is giving such consent voluntarily and free from coercion and undue influence.

Acts 2005, No. 128, §1, eff. June 22, 2005.