Report Title:

Advance Directive for Mental Health Care

Description:

Provides for advance health-care directive for mental health care and treatment. Repeals provisions relating to medical treatment decisions for psychotic disorders (chapter 327F, HRS).

HOUSE OF REPRESENTATIVES

H.B. NO.

2636

TWENTY-FIRST LEGISLATURE, 2002

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

relating to advance directives for mental health care.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. The purpose of this Act is to allow individuals to make known their preferences for their mental health care and treatment when they are able to do so in order that these preferences can guide care and treatment if the individual later loses the capacity to make such decisions due to a mental illness.

SECTION 2. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"Chapter

advance mental health care decisions act

   -1 Definitions. Whenever used in this chapter, unless the context otherwise requires:

"Advance health-care directive" means an individual instruction or a power of attorney for physical and mental health care.

"Agent" means an individual designated in a power of attorney for health care to make a health-care decision for the individual granting the power.

"Best interest" means that the benefits to the individual resulting from a treatment outweigh the burdens to the individual resulting from that treatment and shall include:

(1) The effect of the treatment on the physical, emotional, and cognitive functions of the patient;

(2) The degree of physical pain or discomfort caused to the individual by the treatment or the withholding or withdrawal of the treatment;

(3) The degree to which the individual's medical condition, the treatment, or the withholding or withdrawal of treatment, results in a severe and continuing impairment;

(4) The effect of the treatment on the life expectancy of the patient;

(5) The prognosis of the patient for recovery, with and without the treatment;

(6) The risks, side effects, and benefits of the treatment or the withholding of treatment; and

(7) The religious beliefs and basic values of the individual receiving treatment, to the extent that these may assist the agent in determining benefits and burdens.

"Capacity" means an individual's ability to understand the significant benefits, risks, and alternatives to proposed health care and to make and communicate a health-care decision.

"Emancipated minor" means a person under eighteen years of age who is totally self-supporting.

"Guardian" means a judicially appointed guardian or conservator having authority to make a health-care decision for an individual.

"Health care" means any care, treatment, service, or procedure to maintain, diagnose, or otherwise affect an individual's physical or mental condition, including:

(1) Selection and discharge of health-care providers and institutions;

(2) Approval or disapproval of diagnostic tests, surgical procedures, and programs of medication; and

(3) Approval or disapproval of electroconvulsive treatment.

"Health-care decision" means a decision made by an individual or the individual's agent or guardian, regarding the individual's health care.

"Health-care institution" means an institution, facility, or agency licensed, certified, or otherwise authorized or permitted by law to provide health care in the ordinary course of business.

"Health-care provider" means an individual licensed, certified, or otherwise authorized or permitted by law to provide health care in the ordinary course of business or practice of a profession.

"Individual instruction" means an individual's direction concerning a health-care decision for the individual.

"Interested persons" means the patient's spouse, unless legally separated or estranged, a reciprocal beneficiary, any adult child, either parent of the patient, an adult sibling or adult grandchild of the patient, or any adult who has exhibited special care and concern for the patient and who is familiar with the patient's personal values.

"Person" means an individual, corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.

"Physician" means an individual authorized to practice medicine or osteopathy under chapter 453 or 460.

"Power of attorney for health care" means the designation of an agent to make health-care decisions for the individual granting the power.

"Primary physician" means a physician designated by an individual or the individual's agent or guardian, to have primary responsibility for the individual's health care or, in the absence of a designation or if the designated physician is not reasonably available, a physician who undertakes the responsibility.

"Reasonably available" means able to be contacted with a level of diligence appropriate to the seriousness and urgency of a patient's health care needs, and willing and able to act in a timely manner considering the urgency of the patient's health care needs.

"State" means a state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or a territory or insular possession subject to the jurisdiction of the United States.

"Supervising health-care provider" means the primary physician or the physician's designee, or the health-care provider or the provider's designee who has undertaken primary responsibility for an individual's health care.

   -2 Advance health care directives. (a) An adult or emancipated minor may give an individual instruction. The instruction may be oral or written. The instruction may be limited to take effect only if a specified condition arises.

(b) An adult or emancipated minor may execute a power of attorney for health care, which may authorize the agent to make any health-care decision the principal could have made while having capacity. The power remains in effect notwithstanding the principal's later incapacity and may include individual instructions. Unless related to the principal by blood, marriage, or adoption, an agent may not be an owner, operator, or employee of the health-care institution at which the principal is receiving care. The power shall be in writing, contain the date of its execution, be signed by the principal, and be witnessed as follows:

(1) Signed by at least two individuals, each of whom witnessed either the signing of the instrument by the principal or the principal's acknowledgment of the signature of the instrument; and

(2) Acknowledged before a notary public at any place within this State.

(c) A witness for a power of attorney for health care shall not be:

(1) A health-care provider;

(2) An employee of a health-care provider or facility; or

(3) The agent.

(d) At least one of the individuals used as a witness for a power of attorney for health care shall be someone who is neither:

(1) Related to the principal by blood, marriage, or adoption; nor

(2) Entitled to any portion of the estate of the principal upon the principal's death under any will or codicil thereto of the principal existing at the time of execution of the power of attorney for health care or by operation of law then existing.

(e) Unless otherwise specified in a power of attorney for health care, the authority of an agent becomes effective only upon a determination that the principal lacks capacity, and ceases to be effective upon a determination that the principal has recovered capacity.

(f) Unless otherwise specified in a written advance health-care directive, a determination that an individual lacks or has recovered capacity, or that another condition exists that affects an individual instruction or the authority of an agent, shall be made by the primary physician.

(g) An agent shall make a health-care decision in accordance with the principal's individual instructions, if any, and other wishes to the extent known to the agent. Otherwise, the agent shall make the decision in accordance with the agent's determination of the principal's best interest. In determining the principal's best interest, the agent shall consider the principal's personal values to the extent known to the agent.

(h) A health-care decision made by an agent for a principal shall be effective without judicial approval.

(i) A written advance health-care directive may include the individual's nomination of a guardian of the person.

(j) An advance health-care directive shall be valid for purposes of this chapter if it complies with this chapter, or if it was executed in compliance with the laws of the state where it was executed.

(k) An advance health-care directive shall be valid for the purposes of this chapter in any state where the individual resides or travels, subject to compliance with the laws of the state in which it was executed.

   -3 Revocation of advance health-care directive. (a) An individual may revoke the designation of an agent only by a signed writing or by personally informing the supervising health-care provider.

(b) An individual may revoke all or part of an advance health-care directive, other than the designation of an agent, at any time and in any manner that communicates an intent to revoke, unless otherwise specified in writing in the advance health-care directive.

(c) A health-care provider, agent or guardian who is informed of a revocation shall promptly communicate the fact of the revocation to the supervising health-care provider and to any health-care institution at which the patient is receiving care.

(d) A decree of annulment, divorce, dissolution of marriage, or legal separation revokes a previous designation of a spouse as agent unless otherwise specified in the decree or in a power of attorney for health care.

(e) An advance health-care directive that conflicts with an earlier advance health-care directive revokes the earlier directive to the extent of the conflict.

   -4 When advance health-care directive does not apply. If the individual is in imminent danger of causing bodily harm to oneself or to others, including law enforcement or emergency medical services personnel, the advance health-care directive may not be invoked. Upon determination of capacity as stated in this chapter, the preferences contained in the advance health-care directive shall be applied.

   -5 Decisions by guardian. (a) A guardian shall comply with the ward's individual instructions and shall not revoke the ward's pre-incapacity advance health-care directive unless expressly authorized by a court.

(b) Absent a court order to the contrary, a health-care decision of an agent takes precedence over that of a guardian.

(c) A health-care decision made by a guardian for the ward is effective without judicial approval.

   -6 Obligations of health-care provider. (a) Before implementing a health-care decision made for a patient, a supervising health-care provider, if possible, shall promptly communicate to the patient the decision made and the identity of the person making the decision.

(b) A supervising health-care provider who knows of the existence of an advance health-care directive, a revocation of an advance health-care directive, or a designation or disqualification of an agent, shall promptly record its existence in the patient's health-care record and, if it is in writing, shall request a copy and if one is furnished shall arrange for its maintenance in the health-care record.

(c) A supervising health-care provider who makes or is informed of a determination that a patient lacks or has recovered capacity, or that another condition exists that affects an individual instruction or the authority of an agent or guardian, shall promptly record the determination in the patient's health-care record and communicate the determination to the patient, if possible, and to any person then authorized to make health-care decisions for the patient.

(d) Except as provided in subsections (e) and (f), a health-care provider or institution providing care to a patient shall:

(1) Comply with an individual instruction of the patient and with a reasonable interpretation of that instruction made by a person then authorized to make health-care decisions for the patient; and

(2) Comply with a health-care decision for the patient made by a person then authorized to make health-care decisions for the patient to the same extent as if the decision had been made by the patient while having capacity.

(e) A health-care provider may decline to comply with an individual instruction or health-care decision for reasons of conscience. A health-care institution may decline to comply with an individual instruction or health-care decision if the instruction or decision is contrary to a policy of the institution which is expressly based on reasons of conscience and if the policy was timely communicated to the patient or to a person then authorized to make health-care decisions for the patient.

(f) A health-care provider or institution may decline to comply with an individual instruction or health-care decision that requires medically ineffective health care or health care contrary to generally accepted health-care standards applicable to the health-care provider or institution.

(g) A health-care provider or institution that declines to comply with an individual instruction or health-care decision shall:

(1) Promptly so inform the patient, if possible, and any person then authorized to make health-care decisions for the patient;

(2) Provide continuing care to the patient until a transfer can be effected; and

(3) Unless the patient or person then authorized to make health-care decisions for the patient refuses assistance, immediately make all reasonable efforts to assist in the transfer of the patient to another health-care provider or institution that is willing to comply with the instruction or decision.

(h) A health-care provider or institution may not require or prohibit the execution or revocation of an advance health-care directive as a condition for providing health care.

   -7 Health-care information. Unless otherwise specified in an advance health-care directive, a person then authorized to make health-care decisions for a patient has the same rights as the patient to request, receive, examine, copy, and consent to the disclosure of medical or any other health-care information.

   -8 Immunities. (a) A health-care provider or institution acting in good faith and in accordance with generally accepted health-care standards applicable to the health-care provider or institution shall not be subject to civil or criminal liability or to discipline for unprofessional conduct for:

(1) Complying with a health-care decision of a person apparently having authority to make a health-care decision for a patient, including a decision to withhold or withdraw health care;

(2) Declining to comply with a health-care decision of a person based on a belief that the person then lacked authority; or

(3) Complying with an advance health-care directive and assuming that the directive was valid when made and has not been revoked or terminated.

(b) An individual acting as agent or guardian under this chapter shall not be subject to civil or criminal liability or to discipline for unprofessional conduct for health-care decisions made in good faith.

   -9 Statutory damages. (a) A health-care provider or institution that intentionally violates this chapter shall be subject to liability to the individual or the individual's estate for damages of $500 or actual damages resulting from the violation, whichever is greater, plus reasonable attorney's fees.

(b) A person who intentionally falsifies, forges, conceals, defaces, or obliterates an individual's advance health-care directive or a revocation of an advance health-care directive without the individual's consent, or who coerces or fraudulently induces an individual to give, revoke, or not to give an advance health-care directive, shall be subject to liability to that individual for damages of $2,500 or actual damages resulting from the action, whichever is greater, plus reasonable attorney's fees.

   -10 Capacity. (a) This chapter does not affect the right of an individual to make health-care decisions while having capacity to do so.

(b) An individual is presumed to have capacity to make a health-care decision, to give or revoke an advance health-care directive, and to designate or disqualify an agent.

   -11 Effect of copy. A copy of a written advance health-care directive, revocation of an advance health-care directive, or designation or disqualification of an agent has the same effect as the original.

   -12 Effect of this chapter. (a) This chapter shall not create a presumption concerning the intention of an individual who has not made or who has revoked an advance health-care directive.

(b) Death resulting from the withholding or withdrawal of health care in accordance with this chapter, for any purpose, shall not constitute a suicide or homicide or legally impair or invalidate a policy of insurance or an annuity providing a death benefit, notwithstanding any term of the policy or annuity to the contrary.

(c) This chapter shall not authorize mercy killing, assisted suicide, euthanasia, or the provision, withholding, or withdrawal of health care, to the extent prohibited by other statutes of this State.

(d) This chapter shall not authorize or require a health-care provider or institution to provide health care contrary to generally accepted health-care standards applicable to the health-care provider or institution.

   -13 Judicial relief. On petition of a patient, the patient's agent or guardian, or a health-care provider or institution involved with the patient's care, any court of competent jurisdiction may enjoin or direct a health-care decision or order other equitable relief. A proceeding under this section shall be governed by part 3 of article V of chapter 560.

   -14 Uniformity of application and construction. This chapter shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this chapter among states enacting it.

   -15 Optional form. The following sample form may be used to create an advance health-care directive. This form may be duplicated. This form may be modified to suit the needs of the person, or a completely different form may be used that contains the substance of the following form.

"ADVANCE HEALTH-CARE DIRECTIVE

Explanation

You have the right to give instructions about your own health care. You also have the right to name someone else to make health-care decisions for you. This form lets you do either or both of these things. It also lets you express your wishes regarding the designation of your health-care provider. If you use this form, you may complete or modify all or any part of it. You are free to use a different form.

Part 1 of this form is a list of options you may designate as part of your mental health care and treatment. For ease of locating specific instructions, mark those options in part 1.

Part 2 of this form is a power of attorney for health care. This lets you name another individual as agent to make health-care decisions for you if you become incapable of making your own decisions or if you want someone else to make those decisions for you now even though you are still capable. You may name an alternate agent to act for you if your first choice is not willing, able, or reasonably available to make decisions for you. Unless related to you, your agent may not be an owner, operator, or employee of a health-care institution where you are receiving care.

Unless the form you sign limits the authority of your agent, your agent may make all health-care decisions for you. This form has a place for you to limit the authority of your agent. You need not limit the authority of your agent if you wish to rely on your agent for all health-care decisions that may have to be made. If you choose not to limit the authority of your agent, your agent will have the right to:

(1) Consent or refuse consent to any care, treatment, service, or procedure to maintain, diagnose, or otherwise affect a physical or mental condition;

(2) Select or discharge health-care providers and institutions;

(3) Approve or disapprove diagnostic tests, surgical procedures, and programs of medication; and

(4) Approve or disapprove of electroconvulsive treatment.

Part 3 of this form lets you give specific instructions about any aspect of your health care. Choices are provided for you to express your wishes regarding the provision, withholding, or withdrawal of medication and treatment. Space is provided for you to add to the choices you have made or for you to write out any additional wishes.

Part 4 of this form is required to activate the advance health-care directive. After completing this form, sign and date the form at the end and have the form witnessed by one of the two alternative methods listed below. Give a copy of the signed and completed form to your physician, to any other health-care providers you may have, to any health-care institution at which you are receiving care, and to any health-care agents you have named. You should talk to the person you have named as agent to make sure that he or she understands your wishes and is willing to take the responsibility.

You have the right to revoke this advance health-care directive or replace this form at any time, unless specified in writing in the advance health-care directive. If you are in imminent danger of causing bodily harm to yourself or others, the advance health-care directive will not apply.

PART 1

CHECKLIST OF HEALTH CARE OPTIONS

NOTE TO PROVIDER: The following is a checklist of selections I have made regarding my health care and treatment. I include this statement to express my strong desire for you to acknowledge and abide by my rights, under state and federal laws, to influence decisions about the care I will receive.

(Declarant: Put a check mark in the left-hand column for each action you have completed.)

___ Designation of my health care agent(s).

___ Authority granted to my agent(s).

___ My preference made for a court appointed guardian.

___ My preference made regarding treatment facility and alternatives to hospitalization.

___ My preferences made regarding physicians or other mental health care providers who will treat me if I am hospitalized.

___ My preferences made regarding medications.

___ My preferences made regarding electroconvulsive therapy (ECT or shock treatment).

___ My preferences made regarding emergency interventions (seclusion, restraint, medications).

___ Consent given for experimental medications or treatments.

___ Determination made of who to notify immediately of my admission to a facility.

___ Determination made of who to be prohibited from visiting me.

___ My preferences made for care and temporary custody of my children or pets.

___ My preferences made about revocation of my advance health-care directive during a period of incapacity.

___ Other instructions about physical and mental health care.

PART 2

DURABLE POWER OF ATTORNEY FOR HEALTH-CARE DECISIONS

(1) DESIGNATION OF AGENT: I designate the following individual as my agent to make health-care decisions for me:

________________________________________________________

(name of individual you choose as agent)

________________________________________________________

(address) (city) (state) (zip code)

________________________________________________________

(home phone) (work phone)

OPTIONAL: If I revoke my agent's authority or if my agent is not willing, able, or reasonably available to make a health-care decision for me, I designate as my first alternate agent:

_________________________________________________________

(name of individual you choose as first alternate agent)

_________________________________________________________

(address) (city) (state) (zip code)

_________________________________________________________

(home phone) (work phone)

OPTIONAL: If I revoke the authority of my agent and first alternate agent or if neither is willing, able, or reasonably available to make a health-care decision for me, I designate as my second alternate agent:

__________________________________________________________

(name of individual you choose as second alternate agent)

__________________________________________________________

(address) (city) (state) (zip code)

__________________________________________________________

(home phone) (work phone)

(2) AGENT'S AUTHORITY: My agent is authorized to make all health-care decisions for me, including decisions to provide, withhold, or withdraw medication and treatment, and all other forms of health care, except as I state here:

_______________________________________________________

_______________________________________________________

_______________________________________________________

(Add additional sheets if needed.)

3) WHEN AGENT'S AUTHORITY BECOMES EFFECTIVE: My agent's authority becomes effective when my primary physician determines that I am unable to make my own health-care decisions unless I mark the following box. If I mark this box [  ] my agent's authority to make health-care decisions for me takes effect immediately.

(4) AGENT'S OBLIGATION: My agent shall make health-care decisions for me in accordance with this power of attorney for health care, any instructions I give in Part 3 of this form, and my other wishes to the extent known to my agent. To the extent my wishes are unknown, my agent shall make health-care decisions for me in accordance with what my agent determines to be in my best interest. In determining my best interest, my agent shall consider my personal values to the extent known to my agent.

(5) NOMINATION OF GUARDIAN: If a guardian of my person needs to be appointed for me by a court, I nominate the agent designated in this form. If that agent is not willing, able, or reasonably available to act as guardian, I nominate the alternate agents whom I have named, in the order designated.

PART 3

INSTRUCTIONS FOR HEALTH CARE

If you are satisfied to allow your agent to determine what is best for you, you need not fill out this part of the form. If you do fill out this part of the form, you may strike any wording you do not want.

(6) PREFERENCES REGARDING TREATMENT FACILITY AND ALTERNATIVES TO HOSPITALIZATION:

________________________________________________________

________________________________________________________

(7) PREFERENCES REGARDING PHYSICIANS OR OTHER MENTAL HEALTH CARE PROVIDERS WHO WILL TREAT ME IF I AM HOSPITALIZED:

________________________________________________________

________________________________________________________

(8) PREFERENCES REGARDING MEDICATIONS:

________________________________________________________

________________________________________________________

(9) PREFERENCES REGARDING ELECTROCONVULSIVE THERAPY (ECT OR SHOCK TREATMENT):

________________________________________________________

________________________________________________________

(10) PREFERENCES REGARDING EMERGENCY INTERVENTIONS (SECLUSION, RESTRAINT, MEDICATIONS):

________________________________________________________

________________________________________________________

(11) CONSENT FOR EXPERIMENTAL MEDICATIONS OR TREATMENT:

________________________________________________________

________________________________________________________

(12) WHO IS TO BE NOTIFIED IMMEDIATELY ON MY ADMISSION TO A FACILITY:

________________________________________________________

________________________________________________________

(13) WHO IS TO BE PROHIBITED FROM VISITING ME:

________________________________________________________

________________________________________________________

(14) PREFERENCES REGARDING WHO IS TO CARE FOR MY CHILDREN OR PETS:

________________________________________________________

________________________________________________________

(15) PREFERENCES REGARDING REVOCATION OF MY ADVANCE HEALTH-CARE DIRECTIVE DURING A PERIOD OF INCAPACITY:

________________________________________________________

________________________________________________________

(16) OTHER WISHES: (If you do not agree with any of the optional choices above and wish to write your own, or if you wish to add to the instructions you have given above, you may do so here.) I direct that:

________________________________________________________

________________________________________________________

(Add additional sheets if needed.)

PART 4

WITNESSES AND SIGNATURES

(17) EFFECT OF COPY: A copy of this form has the same effect as the original.

(18) SIGNATURES: Sign and date the form here:

____________________________ _________________________

(date) (sign your name)

____________________________ _________________________

(address) (print your name)

____________________________

(city) (state)

(19) WITNESSES: This power of attorney will not be valid for making health-care decisions unless it is (a) signed by two qualified adult witnesses who are personally known to you and who are present when you sign or acknowledge your signature; and (b) acknowledged before a notary public in the State.

AFFIRMATION OF WITNESSES

Witness 1

I declare under penalty of false swearing pursuant to section 710-1062, Hawaii Revised Statutes, that the principal is personally known to me, that the principal signed or acknowledged this power of attorney in my presence, that the principal appears to be of sound mind and under no duress, fraud, or undue influence, that I am not the person appointed as agent by this document, and that I am not a health-care provider, nor an employee of a health-care provider or facility. I am not related to the principal by blood, marriage, or adoption, and to the best of my knowledge, I am not entitled to any part of the estate of the principal upon the death of the principal under a will now existing or by operation of law.

____________________________ _________________________

(date) (sign your name)

____________________________ _________________________

(address) (print your name)

____________________________

(city) (state)

Witness 2

I declare under penalty of false swearing pursuant to section 710-1062, Hawaii Revised Statutes, that the principal is personally known to me, that the principal signed or acknowledged this power of attorney in my presence, that the principal appears to be of sound mind and under no duress, fraud, or undue influence, that I am not the person appointed as agent by this document, and that I am not a health-care provider, nor an employee of a health-care provider or facility.

____________________________ _________________________

(date) (sign your name)

____________________________ _________________________

(address) (print your name)

____________________________

(city) (state)

DECLARATION OF NOTARY

State of Hawaii

County of ________________

On this _____________ day of _______________, in the year _______, before me, __________________ (insert name of notary public) appeared _________________, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to this instrument, and acknowledged that he or she executed it.

Notary Seal

____________________________"

(Signature of Notary Public)"

SECTION 3. Chapter 327F, Hawaii Revised Statutes, is repealed.

SECTION 4. This Act shall take effect upon its approval.

INTRODUCED BY:

_____________________________