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Psychiatric Advance DirectivesPsychiatric Advance Directives

Overview. . .

Psychiatric Advance Directives

State Advance Directives Activities Issues Concerning Advance Directives

(Treatment Options, Revocability & Limitations)

Legislative Considerations

What is an Advance Directive?

Advance directives are legal documents that tell others what your treatment preferences are. They are directions for others to follow, made in advance of an illness or injury. Generally, state law governs their use.

Advance directives can exist in both the physical health and mental health contexts. The majority of states with advance directive statutes expressly or by implication apply to mental health. Some states have passed specific psychiatric advance directive laws.

Benefits of Advance Directives…

Advance Directives Can:

Enhance communication between individuals and their families, friends, and healthcare providers;

 

Help in preventing crises and the resulting use of restraint, seclusion, or other forms of involuntary treatment;

 

Protect individuals from receiving ineffective, unwanted, or possibly harmful treatment; and

Promote individual autonomy and empowerment in the recovery from mental illness.

Who Should Have an Advance Directive?

Every one of us!

Anyone who might be in an accident and might not be capable of speaking for himself or herself;

Anyone who might someday be in a position in which he or she could not express his or her treatment preferences; and

Anyone who could be determined to be unable of making decisions for himself or herself.

Instructional - refers to a person’s treatment wishes (i.e. what you want in the way of treatment or services and also what you don’t want. Also known as a “living will”).

Agent driven (Power of Attorney) - gives another individual the power to make decisions for you when you are deemed incapable of making decisions for yourself (i.e. who you would want to make decisions for you. Also called a surrogate decision maker, or a proxy.)

Two types of Advance Directives:

Capacity vs. Competence…

“Capacity” is a medical term. A determination is made by one or more physicians as to whether or not an individual is capable of making healthcare decisions.

“Competence” is a legal term. A person can be adjudicated (determined by a judge) to be competent or incompetent.

State Advance Directive Activities…

Every state in the country has statutes permitting advance directives. However, many state statutes do not address mental health.

Recent state activities include:

Hawaii (2001) almost passed a joint general health and mental health care directive, and hopes to complete the process in 2002.

Maryland (2001) passed a psychiatric advance directives law that requires residential facilities to inform individuals about advance directives as part of discharge planning. Training is required.

State Advance Directive Activities…

Oregon (1999). Contains specific instructions in legislation for

mental health Duration is determined by the principal

Wyoming (1999). Addresses the development of a state-wide registry

of advance directives Duration is only 2 years

Issues Concerning Advance Directives

Specific Instructions for Treatment Revocability Agent-Driven Directives Rights of the Individual and the Agent Other Considerations

Specific Instructions for Treatment…

Instruction Directives should permit individual’s to:

Medication preferences; Consent or refusal to ECT; Consent or refusal to clinical drug studies or trials; Consent or refusal to psychosurgery; Activities that will help or worsen a person’s symptoms; Preferences around seclusion and restraint

(chemical/physical); and Preferences regarding care and/or temporary custody of

children, notification and visitation restrictions.

Revocability Options…

Revocability refers to the verbal or written cancellation of an advance directive.

Legislation for revocability could be crafted to:

Permit the individual to revoke the advance directive at any time;

Prohibit the individual from revoking the advance directive once he/she is determined incapable; or

Allow the individual to choose if ability to revoke the directive is contingent upon capacity.

State Laws and Revocability…

Illinois and Maine permit individuals to choose whether to directive to use a revocable or irrevocable advance directive.

Pennsylvania allows the guardian to revoke the advance directive at any time.

New Jersey only allows the individual to suspend the directive.

Missouri allows a person to revoke the directive if they can express intent.

Delaware allows a person to revoke the directive when capable, but a guardian must receive court approval to revoke.

Agent Driven Directives Should…

Illustrate that the instructions specified must be followed in the advance directive;

Highlight that the agent’s authority ends when the advance directive expires;

Clearly state that if it is unclear what the individual would want, the agent should follow the commonly used “substituted judgment” or “best interest” standard; and

Outline that providers are expected to follow instruction directives.

Rights of the Agent and the Individual…

Recognize the rights of both the individual and agent under the law;

Enter the agreement with a full understanding of the advance directive;

Ensure that she/he has an understanding of the treatment history of the individual; and

Carry out the expressed will of the individual regarding his/her treatment wishes.

Other Considerations for States…

Duration - duration of advance directives will vary from state-to-state;

Mental Health versus Physical Health - states should consider whether or not they prefer to amend existing directives or craft directives specific to mental health;

Training and Community Dialogue Needs - to educate consumers, advocates, providers, family members, attorneys,etc; and

Statutes in Other States - states can analyze existing legislative statutes in other states as a tool to consider in crafting statute.

Considerations for States…

Legislators should ensure that Legislation will:

Reduce the need to craft a directive as if it were a will;

Support directives that are easily understood;

Enable directives to be easily executed; and

Support directives that are coordinated with existing state statutes (instruction/agent).

Examples of Implementation…

A number of states have struggled with effective provisions to ensure provider compliance with advance directives.

Oregon requires healthcare and mental health care organizations to provide information about mental health care directives.

Wyoming requires providers to comply with directive, but does not specify consequences.

North Carolina requires providers to put the directive in the person’s medical record.

California spells out financial consequences for both providers and others for non-compliance; destruction of the directive; or coercion of the author.

Research on Advance Directives…In Oregon, a sample study was conducted on persons diagnosed with

serious and persistent mental illness, who were educated about Psychiatric Advance Directives (PADs).

The study revealed: 73% appointed surrogates; 86% of the surrogates were family members; 85% felt empowered by preparing the PAD; 46% criticized the lack of policy re: PADs implementation; 100% of the surrogates were enthusiastic about the PADs; 93% of the providers were satisfied with PAD process; and 80% of the providers were concerned about the realistic ability of consumers to implement PADs,

Clearly the need for further research exists.

Court Activities…

In 1987, the New Jersey Superior court determined that a durable power of attorney for healthcare decisions should be honored even if NJ statute does not specifically authorize such powers.

In 1991, the Supreme Court refused to order ECT for an “incompetent woman” with a previously written statement refusing treatment, even though the statement did not comply with statutory standards (ATTAC of NAPAS, 2000).

In 1999, the Vermont Supreme Court ruled that a person may not be involuntarily medicated unless a hearing officer finds that the person, if competent, would choose to be medicated.

Protections against Misuse…Some people worry that advance directives may be

misused, and that individuals may be coerced into signing documents they do not fully understand or disagree with.

A few protections against this misuse include: Avoid allowing family members or providers of

healthcare services to witness signing directive; Prohibit providers from being in the role of the

agent; and Provide cross-training and dialogue for providers,

family members, and consumers.

Action Steps…

Gather consensus on underlying issues Revocability Options Treatment Instructions Agent responsibilities

Decide on legislative action New legislation Offer an amendment

Involve all stakeholders Work with other disability groups