What Consumers and Families Need to Know about Psychiatric

Advance Directives!

Marvin Swartz, M.D.Department of Psychiatry and Behavioral Sciences

Duke University Medical CenterDurham, NC

Supported by a grant from The John D. and Catherine T. MacArthur Foundation

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What are Psychiatric Advance Directives (PADs)?

• Legal documents that allow persons when of “sound mind.”

• To refuse or give consent to future psychiatric treatment.

• May authorize another person to make future decisions about mental health care on behalf of the mentally ill person, if he/she becomes incapacitated.

Goals of an Advance Directive

• To ensure patients are treated according with their wishes.

• To encourage a more informed and open dialogue between patients and their treatment providers.

Why are Psychiatric Advance Directives important?

• Patient Self-Determination Act (PSDA) of 1991 requires hospitals and clinics to assist in the use of Medical Advance Directives (“living wills”).

• In states with Psychiatric Advance Directives laws, the PSDA requires hospital and clinics to assist in their use.

Why are Psychiatric Advance Directives important?

• Allows families to speak directly with providers during crises.

• Allows families help make decisions during crises.

• Still supports consumer autonomy and empowerment in mental health care.

• May reduce involuntary treatment.• May improve continuity of care.

Two parts to Psychiatric Advance Directives

• Instructional Directive: – Similar to a living will.– Documents wishes, consent or refusal of future care.

• Health Care Power of Attorney: – Appoints another person to make decisions during

crises.– May be designed with limited or broad powers.

• Not required to have either, in some states can have either or both.

Instructional Directives

• Usually permits individual to plan for, consent to, or refuse:– Hospital admission – Medications– Electroconvulsive treatment– Other treatments for mental illness.

• Takes effect in the event individual loses ability to make decisions (is “incapable”).

Instructional Directives: May include additional information

• Who to contact in case of a crisis.• What may cause a mental health crisis.• What may help a person to avoid

hospitalization.• How the person generally reacts to

hospitalization.• Other instructions.

Making an Instructional Directive(Example from North Carolina)

• Any adult “of sound mind” can make.• Signed in presence of two witnesses:

– Not a relative.– Not person’s doctor, mental health provider

or other staff.– Not staff of a health care facility in which

the client is a patient.• Must be notarized.• Present to doctor and other mental health

treatment providers.

What should the doctors or staff do with the Instructional Directive?

(Example from North Carolina)

• Must make a part of medical record.

• Must act in accordance with instructional directive when patient is determined to be “incapable”.

• May notify all other providers to follow instructional directive.

What does “Incapable” Mean? (Example from North Carolina)

“…in the opinion of a physician or eligible psychologist the person currently lacks sufficient understanding or capacity to make and communicate mental health treatment decisions.”

Must clinicians always honor the instructions?

(Example from North Carolina)

• Clinicians may disregard instructions:– Not consistent with “generally accepted community

practice standards.”– When treatments requests are not feasible or

unavailable.– When treatment requests would interfere with

treating an emergency.– Instructions may be over-ridden by involuntary

inpatient commitment.– Conflicts with other law.

If one instruction is not followed, what happens to other instructions?

Generally:• If one part the instructions cannot be

carried out, the remaining instructions must still be followed.

• If not followed, reason for not following instruction must be communicated and documented.

Can the instructions be changed?

• Rules for changing instructions may vary across states.

• Generally: Instructions may be changed whenever the person is “competent” or “capable.”

Health Care Power of Attorney (HCPA)

• Allows a person to appoint someone to make treatment decisions when consumer is “incapable” or “incompetent”.

• Can be combined with instructional directive,– but may be two different forms.

• Any capable adult may execute.

Who can serve as the health care power of attorney?

• Any competent adult 18 or older.

• Person usually cannot be providing health care to consumer.

• Consumer can often name several people to serve if one unavailable.

When does health care power of attorney take effect?

• When consumer is found to be “incapable” and continues during period of incapacity.

• Usually determined by physician or psychologist.

• Finding that consumer is “incapable” must be in writing.

What powers does the health care power of attorney have?

• Can make whatever treatment decisions the consumer could usually make;– Unless the consumer limits the authority of

the health care power of attorney.– Consumer can instruct health care power of

attorney on decision about medications, ECT, hospital admission, other.

What should the health care power of attorney do?

• Must make decisions consistent with any statements in instructional directive, if one exists.

• Can discuss and review treatment information.• Can usually consent/refuse admission to

hospital• Can usually consent/refuse medications and

ECT.

Examples of Use of PADs

• Advance informed consent to future hospitalization in the event of incapacitating mental health crisis.

• Request or refuse future treatment with medications or other interventions.

• Authorize health care power of attorney to make future decisions about psychiatric treatment in patient’s best interest.

Why don’t more consumers have Psychiatric Advance Directives?

• Families have not realized they should encourage them!

• Fewer than half of states have these laws.• Some states allow psychiatric advance

directives under medical advance directives.• Advance directives may be difficult to complete

for some consumers.• Help in completing advance directives may not

always be available.

Options for Sharing PADs in NC

• Can place in Medical record

• Can place in North Carolina Department of the Secretary of State Advance Health Care Directive Registry—secure web site

NORTH CAROLINA DEPARTMENT OF THE SECRETARY OF STATE

ADVANCE HEALTH CARE DIRECTIVE REGISTRY

Welcome to the North Carolina Advance Health Care Directive Registry! We are pleased to offer this service of registering your Advance Health Care Directives online for easy accessibility

Internet: www.sosnc.com

NORTH CAROLINA DEPARTMENT OF THE SECRETARY OF STATE

ADVANCE HEALTH CARE DIRECTIVE REGISTRY

Standard Forms:

• Registration Form

• Health Care Power of Attorney Form

• Advance Instruction for Mental health Treatment

• Revocation Form

NORTH CAROLINA DEPARTMENT OF THE SECRETARY OF STATE

ADVANCE HEALTH CARE DIRECTIVE REGISTRY

Steps to register:• Print a registration sheet from the website • Fill in the required information.• Witness (2) and notarize forms. • For each directive you wish to register with the North

Carolina Secretary of State, please attach a $10.00 fee. • Submit one (1) cover sheet for each directive to be filed. • Mail to:

North Carolina Secretary of State Attention of Advance Health Care Directive Registry, Post Office Box 29622, Raleigh, North Carolina 27626-0622.

NORTH CAROLINA DEPARTMENT OF THE SECRETARY OF STATE

ADVANCE HEALTH CARE DIRECTIVE REGISTRY

Next Steps:

• Will receive a registration card and password

• Copies should be given to people who might need them

• Password will provide access to website

• Revocation will remove forms

Where can I get more information about Psychiatric Advance Directives?

• National Resource Center on Psychiatric Advance Directiveshttp://nrc-pad.org

• NAMIwww.nami.org

• Bazelon Center www.bazelon.org

• National Mental Health Associationwww.nmha.org

• NC Mental Health Consumers Organizationwww.naminc.org/consumer.htm

• NC Secretary of State—Advance Health Care Directive Registrywww.sosnc.com

Thank you!

Visit us at:The National Resource Center on Psychiatric

Advance Directives

www.nrc-pad.org