North Dakota law sets consent rules for patients unable to decide

A health care directive and its agent’s authority apply only while the person cannot make health care decisions, as certified in writing by a listed clinician and recorded in the medical file. This applies to a person with a health care directive and the agent named in it. The attending physician, psychiatrist, or psychologist must certify the incapacity in writing and file it in the person’s medical record. The directive stops being effective when the person is found to have recovered the ability to make health care decisions.

Listed people may consent to health care for an incapacitated adult in priority order; a team of at least three health professionals may act last. An incapacitated patient is an adult unable to understand the nature and consequences of a health care choice and unable to communicate a decision. The priority list includes a health care agent, a guardian or custodian, and certain relatives or close friends who have kept in contact with the patient. The adult’s attending physician, psychiatrist, or psychologist must certify the inability and file it in the medical record. A team member cannot be directly involved in the patient’s treatment. If the team consents, the provider must keep trying in good faith to find someone higher on the list. A lower-priority person cannot consent if someone higher on the list has refused.

A parent may consent to a minor’s health care unless a court order says otherwise. If a parent cannot consent, listed people may act in priority order, with a team of at least three health professionals last. A minor is under 18. If a parent cannot consent, the list includes guardians or custodians, a noncustodial parent, certain relatives, or a close friend who has kept in contact with the minor. A team member cannot be directly involved in the minor’s treatment. If the team consents, the provider must keep trying in good faith to find someone higher on the list. A lower-priority person cannot consent if someone higher on the list has refused.

Before consenting for someone else, an authorized person must first make a good-faith judgment about what the patient would choose; if that cannot be determined, the decision must serve the patient’s best interests. These rules apply to anyone authorized under this section to consent for an incapacitated patient or minor. An authorized person cannot consent to sterilization, abortion, or psychosurgery. Consent cannot cover admission to a state mental health facility for more than 45 days without a mental health proceeding or another court order. The 45-day limit applies to admission to a state mental health facility without a mental health proceeding or another court order.