1. (1) If a patient’s actions, statements, and/or behavior indicate that they may lack capacity to give informed consent and the patient has provided the RMHI with a current Declaration for Mental Health Treatment that addresses the issue requiring informed consent (e.g., psychotropic medication, physical treatment, release of information, or another issue detailed in the Declaration for Mental Health Treatment), then the patient’s capacity must be assessed in accordance with the requirements of Chapter 0940-01-06 (Capacity to Make Decisions) by:

   1. (a) Two (2) physicians; or
   2. (b) One (1) physician with expertise in psychiatry by training, education, or experience and one (1) psychologist with health service provider designation.
2. (2) If the patient’s Declaration for Mental Health Treatment does not address the issue requiring informed consent (e.g., psychotropic medication, physical treatment, and/or release of PSYCHOTROPIC MEDICATIONS AT MENTAL HEALTH INSTITUTES information), the patient’s capacity to give informed consent shall be assessed in accordance with Rule 0940-01-02-.08, and, if the patient is determined to lack capacity to give informed consent, the provisions of Rule 0940-01-02-.08 shall be followed relative to psychotropic medication, physical treatment, and/or release of information.
3. (3) If the patient is determined to lack capacity to give informed consent and the patient is hospitalized on a voluntary status, treatment shall be provided in accordance with the Declaration for Mental Health Treatment, except in emergency situations in accordance with Rule 0940-01-02-.07, with informed consent provided by the Declaration for Mental Health Treatment.
4. (4) If the patient is determined to lack capacity to give informed consent and the patient is hospitalized on an involuntary status, treatment shall be provided in accordance with the Declaration for Mental Health Treatment, except in emergency situations in accordance with Rule 0940-01-02-.07 or except as otherwise authorized by the TRC in accordance with Rule 0940-01-02-.11, with informed consent provided by the Declaration for Mental Health Treatment.

5. (5) TRC Process If the patient’s Treatment Team determines that treatment, including psychotropic medication, physical treatment, and/or release of information, in a manner contrary to an involuntary patient’s wishes as expressed in the Declaration for Mental Health Treatment is the only viable treatment for the patient, a TRC meeting shall be requested to consider approval to provide the treatment. The TRC shall meet within three (3) regular working days of the request and:

   1. (a) Review the patient’s medical record, including the documentation relating to the patient lacking capacity, the patient’s Declaration for Mental Health Treatment, the request for authorization for treatment in a manner contrary to the Declaration for Mental Health Treatment, the rationale for the request, and the treatment recommendations;
   2. (b) Interview the patient (unless the patient declines to participate in the TRC meeting);
   3. (c) Make a decision regarding whether to authorize treatment in a manner contrary to the patient’s Declaration for Mental Health Treatment; and
   4. (d) Document its decision and the justification on a state-approved form in the patient’s medical record.
6. (6) The TRC may authorize treatment, including but not limited to psychotropic medications, physical treatment, and/or release of information, in a manner contrary to the patient’s wishes as expressed in a Declaration for Mental Health Treatment for no longer than ninety (90) days.
7. (7) The PRA shall monitor the patient and document comments and/or recommendations in the patient’s medical record. The PRA may, if indicated, request that two (2) physicians or a physician with expertise in psychiatry by training, education, or experience and a psychologist with health service provider designation reassess the patient to determine whether the patient still lacks capacity no more frequently than every two (2) weeks during the same admission.
8. (8) The authority of the Declaration for Mental Health Treatment and/or the authority of the TRC expires if the patient gains capacity to provide informed consent. Informed consent shall be obtained from the patient as required by Rules 0940-01-02-.04 and 0940-01-02-.06 before further administration of psychotropic medication, provision of physical treatment, and/or release of information. PSYCHOTROPIC MEDICATIONS AT MENTAL HEALTH INSTITUTES

9. (9) If the patient continues to lack capacity for thirty (30) days, the PRA shall advise the Chief Executive Officer or designee of the need for a conservator to give informed consent for the patient. The Chief Executive Officer or designee shall proceed under authority of T.C.A. Title 33 to obtain a limited conservator for the patient.

   1. (a) If conservatorship proceedings are initiated within ninety (90) days after psychotropic medication, physical treatment, and/or release of information was authorized by the TRC, the psychotropic medication, physical treatment, and/or release of information may continue until a conservator is appointed or the patient no longer lacks capacity.
   2. (b) If conservatorship proceedings are not initiated within ninety (90) days after psychotropic medication, physical treatment, and/or release of information was authorized by the TRC, such psychotropic medication, physical treatment, and/or release of information shall terminate no later than ninety (90) days after it was authorized by the TRC. The patient may not be medicated and/or treated and information may not be released, except in emergency situations under Rule 0940-01- 02-.07 or in accordance with the provisions of the patient’s Declaration for Mental Health Treatment, until a conservator is appointed or the patient no longer lacks capacity.

Authority: T.C.A. §§ 33-1-302 through 33-1-305, 33-3-104, 33-6-107, and 33-6-1006. Administrative History: New rules filed December 22, 2025; effective March 22, 2026.