ENGROSSED SUBSTITUTE SENATE BILL 5223:

Mental Health Advanced Directives

Sharon HallVice President Risk Management Washington Casualty Company

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Important

The written materials and the information presented here do not reflect all the sections contained within the mental health advanced directive legislation. For complete information please read the bill as passed by the legislature.

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Purpose of Legislation

To allow an ability to access tx while individual’s capacity is unclear Early tx may prevent involuntary tx

Allow means to express preferences for tx or refusal of tx

Provide standards to be respected by others pursuant to other provisions of law

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Mental Health Advanced Directive

“Written document in which the principal makes a declaration of instructions or preferences or appoints an agent to make decisions on behalf of the principal regarding the principal’s mental health treatment, or both, and that is consistent with the provisions of this chapter”

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Creation of Directive Inability to honor one or more provisions of

directive does not affect validity of remaining provisions

May include many provisions, e.g. Preferences for tx Consent or refusal of tx Adm to & retention for 14 day stay Description of situations precipitating crisis Alternative treatment Appointment of agent to make tx decisions Nomination of guardian for court consideration

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Contents of Directive

In writing Language of intent to create directive Dated & signed by principal Designate when principal can revoke Two witnesses in writing who

Personally knows principal Present when signed Principal not incapacitated or under duress

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Witness Qualifications Witnesses may not be:

Person designated to make health care decisions

Directly involved with care at time directive is executed

Owner, operator, employee or relative of owner in which principal is patient

Person related by blood, marriage or adoption or if dating

Incapacitated themselves One who would benefit financially

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Contents of Directive cont. If includes appointment of agent, must

include specific language per statute Valid upon execution, but all or part may

take effect at later time as designated Revocation guidelines–

In writing, effective upon receipt If incapacitated, must specify ability to revoke

in directive Copy to agent & everyone given copy of

directive Make part of medical record

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Revocation of Directive In whole or in part as designated Expressly or to the extent of

inconsistency by a subsequent directive Expire under own terms unless principal

incapacitated at time of expiration then expires after no longer incapacitated or revoked

If principal consents or refuses tx which differs from directive, that constitutes a waiver of that provision

May be superseded by court order

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Appointment of Agent RCW 11.94 & 7.70.065 apply unless

otherwise specified Notified in writing by principal Agent decision-making

In accordance with directive If not known, in principal’s best interest

Agent able to receive, review & authorize use & disclosure of PHI

Agent may resign by written notice to principal & treating providers

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Determination of Incapacity

Court order as requested by principal or principal’s agent

OR One mental health professional & one

health care provider*OR

Two health care providers*

*one provider must be a psychiatrist, psychologist or psychiatric ARNP

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Determination of Incapacity cont. Health care provider advises principal:

Request for capacity determination is being sought

Principal may request that determination be made by a court

Must be personally examined Court order:

Mental health professional must testify Principal must be given opportunity to appear

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Determination of Incapacity cont.

Initial determination must be completed within 48 hours

Principal cannot be treated during this time unless: Principal consents Treatment authorized by law

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Inpatient Treatment

If incapacitated & admitted pursuant to directive, capacity must be reevaluated within 72 hours or with change in condition, whichever comes first

After 72 hours, capacity reevaluated with change in condition that indicates capacity regained

Principal or agent request for re-determination to be done within 72 hours (if outpatient, within 5 days)

If determination not completed by timeline, consider principal as having capacity

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Provider Responsibilities

Make directive a part of principal’s medical record

Ask if principal is subject to any court orders affecting directive

Act in accordance with directive provisions to fullest extent possible*

*Exceptions specified on following two slides

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Non-adherence to Directive At Time of Receipt

At the time of receiving a directive, if unable or unwilling to comply with any part(s) of directive for any reason, notify principal (and agent) and document reason in medical record

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Non-adherence to Directive When Acting Under Directive

If acting under authority of directive & unable to comply with any part(s) of directive because: It violates standard of care in RCW 7.70.040 Requested tx is not available Compliance would violate applicable law It is an emergent situation & compliance

would endanger any person’s life or health Principal is involuntarily detained under state

law & inconsistent with purpose of commitment or with order of court

Notify principal (and agent) & document reason in medical record

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What If? Case Scenarios A principal chose not to revoke directive

during incapacity & consented to inpt tx but now refuses admission? MD in conjunction with another provider

evaluates to determine if incapacitated & Obtains consent of agent if designated & Documents need for inpt tx and that it cannot

be done in less restrictive setting & Documents findings & recs for tx or evaluation

Principal may seek injunctive relief for release from facility

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What If? Case Scenarios Principal committed or detained under

involuntary treatment? Sections of directive in conflict with court

order are invalid during commitment Principal incarcerated or in correctional

facility? Sections of directive in conflict with

reasonable prison objectives/hearing are invalid during incarceration & tx may be given despite directive provisions or principal refusal upon certain circumstances

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What If? Case Scenarios Provider unable (related to statute

provisions) or unwilling to comply with a section(s) of directive? Notify principal (agent if applicable) &

document reason Follow other parts of directive

Principal has consented to electroconvulsive therapy? Document therapy & reason for use

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Examples of Interpretive Provisions

More than one valid directive? Follow most recently created one

unless provided otherwise in either document

More than one agent appointed? Follow RCW 11.94.010

Applies to inpatient mental health treatment admission of long-term care residents

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Examples of Interpretive Provisions cont.

Valid directives executed before effective date of statute? Valid

Directive validly executed in another jurisdiction? Valid to extent allowed by WA law

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The Written Directive Substantially the form

specified in the statute … Statement to create Effective Duration Revocation Preferences Consent to inpt tx Visitors Refusal of tx Appointment of agent Notification of others &

care of personal matters

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Changes to Existing Laws

RCW 11.94 When more than one agent appointed,

use most recently appointed agent unless provided otherwise

Employees of long term care cannot act as attorney in fact

Agent can’t be paid

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Changes to Existing Laws

RCW 7.70 Consent to treatment or admission

contained in a validly executed mental health advanced directive constitutes informed consent

RCW 9A.60 Fraudulent creation or revocation of

directive is a class C felony

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Implementation Checklist

Effective 7/27/03 Become familiar with requirements

of law Develop and/or modify facility-wide

policies & procedures Educate mental health patients Monitor utilization and issues

associated with use of directive