75-03-42-02. Determination of capacity to consent.

1. A resident is presumed to have the capacity to consent to authorized electronic recording if the resident understands and appreciates the nature and consequences of the decision to consent to authorized electronic recording, including the benefits and risks of the decision. If a resident has capacity to consent, only the resident may consent to authorized electronic recording in the resident's room.

2. A resident's lack of capacity to consent to authorized electronic recording must be documented in writing by the resident's attending physician or by a court order pursuant to North Dakota Century Code chapter 30.1-28. If the resident is not under a guardianship, the attending physician also shall document in writing if the resident regains the capacity to consent to authorized electronic recording.

3. If a resident is determined to lack capacity to consent to authorized electronic recording, the resident representative may consent to authorized electronic recording and complete the required forms.

4. The resident representative shall make the decision of whether to consent to authorized electronic recording in the resident's room in accordance with the resident's wishes, values, preferences, and directions.

5. If a facility has reason to believe a resident representative is making decisions or taking actions that are not in the best interests of a resident regarding the use of authorized electronic recording, the facility shall report this concern in the manner required to the department or the department's designee.

History: Effective April 1, 2020; amended effective April 1, 2026.

General Authority: NDCC 50-10.1-03, 50-10.2-02.1, 50-10.2-03

Law Implemented: NDCC 50-10.2-02.1, 50-10.2-03