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UNITED STATES DISTRICT COURT DISTRICT OF MAINE CONSUMER ADVISORY BOARD, et al., Plaintiffs, v. BRENDA HARVEY, et al., ) ) ) ) ) Docket no. 91-CV-321-P-S ) ) ) ) )

Defendants.

ORDER REGARDING INFORMED CONSENT Before the Court is the September 22, 2009 Special Master's Report Regarding the Supplemental Plan of Correction for Professional Services (Docket # 363). Via this Report, the Special Master provided the Court with an update regarding the outstanding issue of informed consent for persons under guardianship. As noted in this Report, the Special Master directed Defendants to file a Plan of Correction regarding this issue on March 14, 2008. In the Special Master's December 5, 2008 Report Regarding Defendants' Plan of Correction for Professional Services (Docket # 326), it appeared Defendants were on track to ensure adequate informed consent policies were in place and functioning by early 2009. However, in the September 22, 2009 Report, the Special Master concludes: "All providers have not adopted adequate policies regarding informed consent; [f]or those which have, there is affirmative evidence that a very sizeable proportion are not implementing the policies consistently; and [o]n the schedule [Defendants propose], there is no prospect of making a determination that the Defendants are in compliance with the [informed consent] requirements of the Consent Decree until sometime after March 30, 2010 at the earliest, a full two years after the initial Special Master Report [that required correction of the informed consent policy and practice]." (Sept. 22, 2009 Special Master Report (Docket # 363) at 4-5.) The Court is bewildered by this unresolved issue. Maine law unequivocally requires informed consent be obtained from the guardian for "legally incompetent" persons. See 34-B M.R.S.A.

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Maine Law