GUARDIANS' CONSENT TO USE OF EXPERIMENTAL DRUGS BY PEOPLE WITH MENTAL RETARDATION


March 02, 2001		2001-R-0274
GUARDIANS' CONSENT TO USE OF EXPERIMENTAL DRUGS BY PEOPLE WITH MENTAL RETARDATION

By: Saul Spigel, Chief Analyst

You asked if any states allow guardians of people with mental retardation to consent to experimental drug treatment for their wards.

We have identified nine states that permit guardians or legal representatives of people with mental retardation to consent to experimental drug treatment for their wards. They are: Colorado, Florida, Illinois, Kansas, Maine, Montana, North Carolina, South Dakota, and Virginia.

These states typically grant the permission as part of a bill of rights for people with retardation or developmental disability (DD). It is usually couched as a prohibition against experimental treatment without informed consent. A few of these states require a court or other third party to review or approve the treatment even if a guardian consents. Some states' laws apply to anyone with mental retardation; others apply to people receiving state services or who live in an institution. Table 1 summarizes the principal features of these consent statutes.

Connecticut law states that a guardian cannot consent to any experimental biomedical or behavioral medical procedure being performed on his ward or his ward's participation in any biomedical or behavioral experiment except to (1) preserve the ward's life, (2) prevent serious impairment of his physical health, or (3) help him regain his abilities. The probate court must approve the procedure or experiment for the individual (CGS § 45a-677).

Table 1: Consent to Experimental Treatment Statutes

State	Applies To	How Applied	Conditions	Cite
CO	People receiving state services	Prohibition against experimental research or hazardous treatment without consent	· Consent may be given only after consultation with community-based interdisciplinary team and unaffiliated DD professional · No one who implicitly or expressly objects to treatment may be subject to it regardless of guardian consent	Co. Stat. 27-10.5-114, 102
FL	People eligible for state services	Express and informed consent by client, parent, or legal guardian required before a plan of "experimental medical treatment" is instituted	Person asked to consent must receive information about: · The nature and consequence of the treatment · Its risks, benefits, and purposes · Alternative available treatments	Fl. Stat. 393.13 (4)(c)(6)
IL	People receiving state services	Prohibition against experimental services without written, informed consent	If recipient is a minor or a ward, a court must approve the parent or guardian to consent to services the guardian believes are in the ward's best interests	405 ILCS 5/2-110
KS	People admitted to an institution	Prohibition against experimental medication without written consent of client, parent, or guardian	None	KS stat. 76-12b10
ME	People with mental retardation	Express and informed consent by client, parent, or legal guardian required before a plan of "experimental medical treatment" is instituted	· Person asked to consent must receive information about: · The nature and consequence of the treatment · Its risks, benefits, and purposes · Alternative available treatments · Guardian can withdraw consent at any time before treatment begins with or without cause	ME Stat. 34-b § 5605 (8.G)
MT	Residents of residential facilities	Prohibition against "unusual or hazardous treatment procedures" without express and informed consent of resident, parent, or guardian	Mental Disabilities Board of Visitors (a state body that reviews care at state institutions for mentally ill and developmentally disabled people and at community mental health centers) must review and approve proposed procedure before consent is sought	MT Stat. 53-20-146
NC	Clients admitted to facilities	Prohibition against treatment involving experimental drugs or procedures without express and informed written consent of client, client's legally responsible person, a health care agent named in health care power of attorney	Consent may be withdrawn at any time	NCGS 122C-57
SD	People with DD	Prohibition against experimental research or hazardous treatment without consent of person, a guardian who is legally empowered to give consent, or parent or guardian of a minor	Circuit court must authorize treatment	SDCL 27B-8-41
VA	Patients or residents in, or consumers of, state-operated, funded, or licensed hospitals, facilities, or programs	Prohibition against "experimental or investigational research" without prior informed, written consent of person or legally authorized representative	None	VA Stat. 37-1-84.1

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