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j Psychiatric Advance Directives

j State Advance Directives Activities
j Issues Concerning Advance Directives
(Treatment Options, Revocability & Limitations)
j Legislative Considerations

     
 

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.
£  
   
 
   
  
j ènhance communication between individuals and
their families, friends, and healthcare providers;
j Help in preventing crises and the resulting use of
restraint, seclusion, or other forms of involuntary
treatment;
j Protect individuals from receiving ineffective,
unwanted, or possibly harmful treatment; and
j Promote individual autonomy and empowerment
in the recovery from mental illness.
      
 

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j Anyone who might be in an accident and might

not be capable of speaking for himself or herself;
j Anyone who might someday be in a position in
which he or she could not express his or her
treatment preferences; and
j Anyone who could be determined to be unable of
making decisions for himself or herself.


#    
 
j î

 r refers to a person¶s treatment wishes
(i.e. what you
ant in the way of treatment or services
and also what you don¶t
ant. Also known as a ³living
will´).
j  
   

 !" gives another
individual the power to make decisions for you when
you are deemed incapable of making decisions for
yourself (i.e.
o you would want to make decisions for
you. Also called a surrogate decision maker, or a
proxy.)
 # 
  $#
 

j ³Capacity´ is a aedical term. A determination is

made by one or more physicians as to whether or
not an individual is capable of making healthcare
decisions.

j ³Competence´ is a legal term. A person can be

adjudicated (determined by a judge) to be
competent or incompetent.


   
 

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


 

  
j    &''(! almost passed a joint general health
and mental health care directive, and hopes to
complete the process in 2002.
j M   &''(! passed a psychiatric advance
directives law that requires residential facilities to
inform individuals about advance directives as part
of discharge planning. Training is required.


   
 

 

j   ()))!
j Contains specific instructions in legislation for
mental health
j Duration is determined by the principal

j $ ()))!
j Addresses the development of a staterwide registry
of advance directives
j Duration is only 2 years
î      


j Specific Instructions for Treatment

j Revocability
j AgentrDriven Directives
j Rights of the Individual and the Agent
j Other Considerations
# î

 

$ 

î

 
  # $
 * 


j Medication preferences;
j Consent or refusal to èCT;
j Consent or refusal to clinical drug studies or trials;
j Consent or refusal to psychosurgery;
j Activities that will help or worsen a person¶s symptoms;
j Preferences around seclusion and restraint
(chemical/physical); and
j Preferences regarding care and/or temporary custody of
children, notification and visitation restrictions.
%  +
#
 
Revocability refers to the verbal or written
cancellation of an advance directive.

,  
  +
+  



j Permit the individual to revoke the advance

directive at any time;

j Prohibit the individual from revoking the advance

directive once he/she is determined incapable; or

j Allow the individual
 if ability to revoke

the directive is contingent upon capacity.


,   %  +

j î  M  permit individuals to choose whether
to directive to use a revocable or irrevocable advance
directive.
j     allows the guardian to revoke the advance
directive at any time.
j | -   only allows the individual to suspend the
directive.
j M  allows a person to revoke the directive if they
can express intent.
j     allows a person to revoke the directive when
capable, but a guardian must receive court approval to
revoke.
 
  
 

j Illustrate that the instructions specified must be followed in

the advance directive;

j Highlight that the agent¶s authority ends when the advance

directive expires;

j Clearly state that if it is unclear what the individual would

want, the agent should follow the commonly used
³substituted judgment´ or ³best interest´ standard; and

j Outline that providers are expected to follow instruction

directives.
%

  
 
 î 

j Recognize the rights of both the individual and agent

under the law;
j ènter the agreement with a full understanding of the
advance directive;
j ènsure that she/he has an understanding of the
treatment history of the individual; and
j Carry out the expressed will of the individual
regarding his/her treatment wishes.

   
 


j 
 r duration of advance directives will vary
from statertorstate;
j M 
 
      
 r states
should consider whether or not they prefer to amend
existing directives or craft directives specific to mental
health;
j
  $$
  |  r to
educate consumers, advocates, providers, family
members, attorneys,etc; and
j 



 

r states can analyze
existing legislative statutes in other states as a tool to
consider in crafting statute.
  
 


,  
     

,  


j Reduce the need to craft a directive as if it were

a will;
j Support directives that are easily understood;
j ènable directives to be easily executed; and
j Support directives that are coordinated with
existing state statutes (instruction/agent).
è $# î$# $ 


A number of states have struggled with effective
provisions to ensure provider compliance with
advance directives.
j   requires healthcare and mental health care
organizations to provide information about mental
health care directives.
j $requires providers to comply with directive,
but does not specify consequences.
j |
  requires providers to put the directive
in the person¶s medical record.
j   spells out financial consequences for both
providers and others for nonrcompliance; destruction
of the directive; or coercion of the author.
%    
 
In Oregon, a sample study was conducted on persons diagnosed
with serious and persistent mental illness, who were
educated about Psychiatric Advance Directives (PADs).

 
   
j ˜
appointed surrogates;

j 86
of the surrogates were family members;

j 85
felt empowered by preparing the PAD;

j 46
criticized the lack of policy re: PADs implementation;

j 100
of the surrogates were enthusiastic about the PADs;

j 9
of the providers were satisfied with PAD process; and

j 80
of the providers were concerned about the

realistic ability of consumers to implement PADs,

 
  
   




 

j In 198˜, 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.

j In 1991, the Supreme Court refused to order èCT for an

³incompetent woman´ with a previously written
statement refusing treatment, even though the statement
did not comply with statutory standards (ATTAC of
NAPAS, 2000).
j 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.


   
M  
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.
 #

   

 $   
j Avoid allowing family members or providers of
healthcare services to witness signing directive;
j Prohibit providers from being in the role of the
agent; and
j Provide crossrtraining and dialogue for providers,
family members, and consumers.


# 
j Gather consensus on underlying issues
j Revocability Options

j Treatment Instructions

j Agent responsibilities

j Decide on legislative action

j New legislation
j Offer an amendment
j Involve all stakeholders
j Work with other disability groups