Report Title:

Advance Directives for Psychiatric Care

 

Description:

Establishes a mechanism to allow individuals to make known their mental health treatment preferences at a time when the individual is able to make informed decisions about treatment. (HB650 HD1)

 

HOUSE OF REPRESENTATIVES

H.B. NO.

650

TWENTY-FIRST LEGISLATURE, 2001

H.D. 1

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

RELATING TO ADVANCE DIRECTIVES FOR PSYCHIATRIC CARE.

 

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

SECTION 1. The purpose of this Act is to allow an individual to make mental health care treatment preferences in advance of a need for mental health treatment. When an individual is capable of making informed decisions about treatment, these preferences can later guide treatment if the individual loses the ability to make these decisions because of 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 DIRECTIVES FOR MENTAL HEALTH TREATMENT

   -1 Short title. This chapter may be cited as the Advance Directives for Mental Health Treatment Act.

   -2 Definitions. Whenever used in this chapter, unless the context otherwise requires:

"Advance directive for mental health treatment" or "advance directive" means a written document that is a formal statement of mental health treatment instructions or preferences of the declarant, or constitutes the appointment of an attorney-in-fact, or both.

"Attending physician or psychologist" means the physician or licensed psychologist who has primary responsibility for the mental health treatment and care of the declarant.

"Attorney-in-fact" or "alternative-attorney-in-fact" means an individual eighteen years of age or older who is validly appointed under this of this chapter to make mental health treatment decisions on behalf of the declarant as provided by this chapter. "Attorney-in-fact" shall be used to refer to either the attorney-in-fact or the alternative-attorney-in-fact.

"Declarant" means a capable person eighteen-years-of-age or older who has executed an advance directive for mental health treatment in accordance with this chapter.

"Health care provider" means a person who is licensed, certified, or otherwise authorized by the Hawaii law to administer health care or mental health care in the ordinary course of business or practice of a profession.

"Incapable" means that either:

(1) In the opinion of two persons, who are physicians or psychologists; or

(2) By court order, a person lacks the capacity to make responsible mental health treatment decisions because of the effect of mental illness on the ability to receive and evaluate information or on the ability to communicate decisions.

"Mental health care facility" includes any program, institution, place, agency, or portion thereof, private or public, whether organized for profit or not, that is used to operate, or designed to provide medical, psychological, or psychiatric diagnosis, treatment, rehabilitation, or preventive care to any person. The term includes but is not limited to health care facilities including psychiatric care facilities that are commonly referred to as hospitals, outpatient clinics, organized ambulatory health care facilities, emergency care facilities and centers, health care maintenance organizations, and others providing similarly organized services regardless of nomenclature.

"Mental health treatment" means any medical, psychological, pharmacological, or therapeutic treatment for mental illness including behavior modification, psychosocial rehabilitation, psychotherapy, electroconvulsive treatment and retention in an inpatient facility not to exceed seventeen days.

"Physician" means an individual currently licensed to practice medicine in the State of Hawaii.

"Psychiatric medications" means any psychotropic medication administered or referred to in the advance directive document.

"Psychologist" means an individual currently licensed to practice in the state of Hawaii as a clinical psychologist.

-3 Execution of an advance directive for mental health treatment. Any person eighteen-years-of-age or older who is not deemed incapable pursuant to this chapter may make an advance directive for mental health treatment acknowledged before a notary public that may include the following options:

(1) Advance directive of preferences or instructions in writing regarding the person's mental health treatment should they become incapable. The preferences may include consent to or refusal of various mental health treatments; or

(2) Appointing an attorney-in-fact to make mental health treatment decisions for the declarant while the declarant is incapable; or

(3) Both executing a written advance directive and appointing an attorney-in-fact. If executed, the appointment of an attorney-in-fact shall be attached to the advance directive for mental health treatment.

-4 Presumed validity of an advance directive for mental health treatment. (a) Executing an advance directive for mental health treatment shall not affect the right of an individual to make decisions about mental health treatment so long as the individual has not been deemed incapable.

(b) If a person is incapable at the time of a determination that mental health treatment is necessary, an advance directive for mental health treatment executed in accordance with this chapter is presumed to be valid.

(c) A physician, psychologist, or health care facility may presume, absent actual notice to the contrary, that a person who executed an advance directive for mental health treatment was capable of making the advance directive.

(d) The fact that a person has executed an advance directive for mental health treatment shall not constitute an indication of mental incompetence.

(e) A person shall not be required to execute or to refrain from executing an advance directive for mental health treatment as a criterion for insurance, as a condition for receiving mental or physical health services, or as a condition of discharge from a health care facility.

(f) An advance directive for mental health treatment shall be effective until it has been revoked by the declarant. The authority of an attorney-in-fact continues in effect as long as the advance directive is in effect or until the attorney-in-fact has withdrawn.

(g) An advance directive may be revoked in whole or part at any time by the declarant if the declarant has not been deemed incapable. A revocation is effective when a capable declarant communicates the revocation to the attending physician or other provider. The attending physician or other provider shall note the revocation as part of the declarant's medical record.

(h) An advance directive does not limit any authority either to take a person into custody or to admit, retain, or treat a person in a health care facility.

-5 Attorney-in-fact decisions regarding mental health treatment. (a) Designation of an attorney-in-fact.

(1) An advance directive may designate a competent adult to act as attorney-in-fact to make decisions about mental health treatment. An alternative attorney-in-fact may be designated to act as attorney-in-fact if the original designee is unable or unwilling to act at any time;

(2) An attorney-in-fact who has accepted this appointment in writing shall have the authority to make decisions, in consultation with the attending physician or psychologist of the declarant, about mental health treatment on behalf of the declarant only when the declarant is certified as incapable and requiring mental health treatment pursuant to this chapter. These decisions shall be consistent with any preferences or instruction the declarant has expressed in the advance directive for mental health treatment. If the preferences or instructions of the declarant are not expressed in the advance directive and not otherwise known by the attorney-in-fact, the attorney-in-fact shall act in what the attorney-in-fact in good faith believes to be the best interest of the declarant;

(3) An attorney-in-fact is not subject to criminal prosecution, civil liability, or professional disciplinary action for reasonable actions taken in good faith pursuant to an advance directive for mental health treatment;

(4) The attorney-in-fact is not, as a result of acting in that capacity, personally liable for the costs of treatment provided to the declarant; and

(5) Except to the extent that the right is limited by the advance directive for mental health treatment or any state or federal law, an attorney-in-fact has the same right as the person making the advance directive for mental health treatment to receive information regarding the proposed mental health treatment and to receive, review, and consent to disclosure of medical information relating to that treatment. This right of access does not waive any evidentiary privileges.

(b) Withdrawal of the attorney-in-fact.

(1) An attorney-in-fact may withdraw by giving notice to the declarant. If the declarant is incapable, the attorney-in-fact may withdraw by giving notice to the named alternative attorney-in-fact, if any, and if none, then to the attending physician or provider. The attending physician or provider shall note the withdrawal of the last named attorney-in-fact as part of the declarant's medical record; and

(2) A person who has withdrawn under the provision of subsection (a) of this section may rescind the withdrawal by executing an acceptance after the date of the withdrawal. The acceptance must be in the same form as provided by section -9 for accepting an appointment. A person who rescinds a withdrawal must give notice to the declarant, if the declarant is not incapable, or to the declarant's attending physician, if the declarant is incapable.

-6 Execution of advance directive; witnesses. An advance directive is effective if it is signed by the declarant in the presence of two or more witnesses who are at least eighteen-years-of-age. A witness shall not be related to the declarant by blood, marriage, or adoption. Furthermore, at the time the advance directive is executed a witness shall not be the attending physician, psychiatrist, psychologist, health care provider, or other employee, owner, or relative of an operator of a health care facility where the declarant is a patient or resident. In addition, a person appointed as an attorney-in-fact shall not be one of the witnesses. The witnesses must attest that the declarant is known to them, that the declarent has signed the advance directive in their presence, appears to be of sound mind, and is not under duress, fraud, or undue influence.

-7 Operation of advance directive. (a) An advance directive becomes operative when it is delivered to the declarant's attending physician, psychiatrist, psychologist, or mental health care provider and remains valid until it is revoked. The attending physician, psychiatrist, psychologist, or mental health care provider shall act in accordance with an advance directive for mental health treatment at such time as the declarant has been determined to be incapable. The attending physician, psychiatrist, psychologist, or mental health care provider shall continue to obtain the declarant's informed consent to all mental health treatment decisions if the declarant is not incapable of providing informed consent or refusal.

(b) If a declarant has not been determined to be incapable, the declarant's treatment decisions supercede the instructions of the advance directive.

(c) The advance directive for psychiatric care cannot be invoked if the individual is in imminent danger to the individual or others.

-8 Responsibilities of primary mental health care provider. Responsibilities of the primary mental health care provider shall include:

(1) All responsibilities otherwise referred to in this chapter;

(2) Upon being presented with an advance directive for mental health treatment, an attending physician, psychiatrist, psychologist, or mental health care provider shall make the advance directive part of the declarant's medical record. When acting under authority of an advance directive for mental health treatment, a physician or provider must comply with it to the fullest extent possible, consistent with reasonable medical practice, the availability of treatments requested, and applicable law. If the physician or other provider is unwilling at any time to comply with the advance directive, the physician or provider may withdraw from providing treatment, consistent with the exercise of independent medical judgement, and must promptly so notify the declarant and the attorney-in-fact and document the notification in the declarant's medical record;

(3) An attending physician, psychiatrist, psychologist, or mental health care provider who refuses or is unable to comply with the terms of the patient's advance directive shall make the necessary arrangements to transfer the patient, and the appropriate medical records, without delay to another physician. A physician who transfers the patient without unreasonable delay, or who makes a good faith attempt to do so, shall not be subject to criminal prosecution or civil liability, and shall not be found to have committed an act of unprofessional conduct for refusal to comply with the terms of the advance directive. Transfer under these circumstances shall not constitute abandonment;

(4) Failure of an attending physician, psychiatrist, psychologist, or mental health care provider to transfer in accordance with this section shall constitute professional misconduct; and

(5) An attending physician, psychiatrist, psychologist, or mental health care provider may subject the declarant to mental health treatment in a manner contrary to the declarant's wishes as expressed in an advance directive for mental health treatment only:

(A) When a court order from a Hawaii court of competent jurisdiction contradicts the declarant's wishes as specified in the advance directive; or

(B) In cases of an emergency endangering life or health.

-9 Form and guideline for advance directive. On or before January 1, 2002, the department of health shall develop procedures for the implementation of psychiatric advance directives. The procedures adopted shall include uniform methods for rapid identification of individuals who have executed an advance directive and methods to protect the confidentiality of individuals who have executed an advance directive. Nothing in this subsection shall be construed to restrict any other manner in which an individual may make a psychiatric advance directive.

Forms that meet the required content and language identified in this chapter and are consistent with patient rights may be developed and disseminated throughout the state. One model of the form of an advance directive for psychiatric care is the following:

I. ADVANCE DIRECTIVE FOR MENTAL HEALTH TREATMENT

ADVANCE DIRECTIVE FOR MENTAL HEALTH TREATMENT

I, ________________, being of sound mind and eighteen years of age or older, willfully and voluntarily make known my wishes about mental health treatment, by my instructions to others through my advance directive for mental health treatment, or by my appointment of an attorney-in-fact, or both. I do hereby declare: If two individuals from my attending physician, psychiatrist or psychologist, and another psychiatrist or psychologist determine that my ability to receive and evaluate information effectively or communicate decisions is impaired to such an extent that I lack the capacity to refuse or consent to mental health treatment and determine that mental health treatment is necessary, I direct my attending physician or psychologist and other health care providers, pursuant to the Advance Directives for Mental Health Treatment Act, to provide the mental health treatment I have indicated below by my signature.

I understand that I may become incapable of giving or withholding informed consent for mental health treatment due to the symptoms of a diagnosed mental disorder. The symptoms may include: ________________________________________________________________

________________________________________________________________ ________________________________________________________________

I understand that "mental health treatment" means any medical, psychological, pharmacological, or therapeutic treatment for mental illness including electroconvulsive treatment, treatment with psychiatric medication, and admission to and retention in a health care facility for a period up to seventeen days.

I direct the following concerning my mental health care: ________________________________________________________________________________________________________________________________

I. Instructions for Mental Health Treatment

A. Psychiatric Medications

If I become incapable of giving or withholding informed consent for mental health treatment, my wishes regarding psychiatric medications are as follows:

_______ I consent to the administration of the following medications:____________________________________________________________________________________________________

_______ I do not consent to the administration of the following medications:____________________________________________________________________________________________________

Conditions or limitations: ________________________________________________________________________________________________________________________________

B. Electroconvulsive Treatment

If I become incapable of giving or withholding informed consent for mental health treatment, my wishes regarding electroconvulsive treatment are as follows:

_______ I consent to the administration of electroconvulsive treatment.

_______ I do not consent to the administration of electroconvulsive treatment.

Conditions or limitations: ________________________________________________________________

________________________________________________________________

C. Short Term Admission to and Retention

in a Mental Health Treatment Facility

If I become incapable of giving or withholding informed consent for mental health treatment, my wishes regarding admission to and retention in a health care facility for mental health treatment are as follows:

___ I consent to being admitted to a health care facility for mental health treatment for up to ______days. (I cannot be held in a facility for more than seventeen days under the Advance Directives for Mental Health Treatment Act.)

____ I do not consent to being admitted to a health care facility for mental health treatment.

Conditions or limitations: ________________________________________________________________________________________________________________________________________________________________________________________________

D. Other Instructions

If I become incapable of giving or withholding informed consent for mental health treatment, I have the following

general instructions that I would like followed:

_____________________________________________________________

_____________________________________________________________

_____________________________________________________________

E. Selection of a Doctor

If I become incapable of giving or withholding informed consent for mental health treatment, I would prefer ____________________________ to be one of my two physicians or psychologists who will determine whether or not I am incapable.

                                              

Address of Preferred Doctor Telephone No.

II. Appointment of Attorney-in-Fact

If my attending physician or psychologist and another physician or psychologist determine that my ability to receive and evaluate information effectively or communicate decisions is impaired to such an extent that I lack the capacity to refuse or consent to mental health treatment and that mental health treatment is necessary, I direct my attending physician or psychologist and other health care providers, pursuant to the Advance Directives for Mental Health Treatment Act, to follow the instructions of my attorney-in-fact.

I hereby authorize the following individual to act as my attorney-in-fact to make decisions regarding my mental health treatment if I become incapable of giving or withholding informed consent for that treatment:

Name _________________________________________

Address ____________________________________

Telephone No. ________________________________

If the person named above refuses or is unable to act on my behalf, or if I revoke that person's authority to act as my attorney-in-fact, I authorize the following person to act as my alternative attorney-in-fact:

Name _________________________________________

Address ____________________________________

Telephone No. ________________________________

My attorney-in-fact is authorized to make mental health treatment decisions that are consistent with the wishes I have expressed in my advance directive. If my wishes are not expressed, my attorney-in-fact is to act in what he or she believes to be my best interest. If there is a conflict between my attorney-in-fact's decision and my advance directive, my advance directive shall take precedence unless I indicate otherwise.

Provisions or limitations on attorney-in-fact's decisional capacity: ________________________________________________________________ ________________________________________________________________________________________________________________________________

III. SIGNATURE AND NOTARIZATION

A. In the absence of my ability to give directions regarding my mental health treatment, it is my intention that this advance directive for mental health treatment shall be honored by my family and mental health providers as the expression of my legal right to consent or to refuse to consent to mental health treatment.

B. This advance directive for mental health treatment shall be in effect until it is revoked.

C. I understand that I may revoke this advance directive for mental health treatment at any time.

D. I understand and agree that if I have any prior advance directives for mental health treatment, and if I sign this advance directive for mental health treatment, my prior advance directives for mental health treatment are revoked.

E. I understand the full importance of this advance directive for mental health treatment and I am emotionally and mentally competent to make this advance directive for mental health treatment.

F. I understand that I MAY NOT revoke this advance directive and power of attorney when it has been determined by a judge or two doctors that I am incapable of making my own mental health care decisions.

G. I further state that this document and the information contained in it may be released to any requesting mental health care facility or provider.

Signed this _____ day of__________ 20    

_________________________________________

(Signature)

                                                

  Printed name of physician Date of Birth

State of Hawaii

County of______________________________

Subscribed and sworn before me,____________________(insert name of notary public), on this _____ day of__________ 20    

Notary Seal

_________________________________________

(Signature of Notary Public)

AFFIRMATION OF WITNESSES

We affirm that the principal is personally known to us, that the principal signed or acknowledged the principal's signature on this advance directive for mental health treatment in our presence, that the principal appears to be of sound mind and not under duress, fraud, or undue influence, and that neither of us is a person appointed as an attorney-in-fact by this document; the principal's attending physician or mental health service provider or a relative of the physician of provider; the owner, operator, or relative of an owner or operator of a facility in which the principal is a patient or resident; or a person related to the principal by blood, marriage, or adoption.

Witnessed By:

                                   

    (Printed Name of Witness 1)

                                   

  (Signature of Witness) (Date) 

                                   

       (Address of Witness 1)

                                   

   (Telephone Number of Witness 1)

Witnessed By:

                                   

    (Printed Name of Witness 2)

                                   

 (Signature of Witness 2) (Date) 

                                   

       (Address of Witness 2)

                                   

   (Telephone Number of Witness 2)

ACCEPTANCE OF APPOINTMENT AS ATTORNEY-IN-FACT

I accept this appointment and agree to serve as attorney-in-fact to make decisions about mental health treatment for the principal. I understand that I have a duty to act in a manner consistent with the desires of the principal as expressed in this appointment. I understand that this document gives me authority to make decisions about mental health treatment only while the principal is incapable as determined by a court or two persons who must be physicians, including a psychiatrist, or one psychiatrist and licensed psychologist. I understand that the principal may revoke this advance directive in whole or in part at any time and in any manner when the principal is not incapable. I also understand that I may withdraw from my duties as attorney-in-fact by giving notice in writing to the declarant. If the declarant is incapable I shall give written notice of such withdrawal to the declarant's attending physician.

                                       

   (Printed Name of Attorney-in-fact)

                                       

(Signature of Attorney-in-fact) (Date)

                                       

(Address of Attorney-in-fact) (Date)

_________________________________________

  (Telephone Number of Attorney-in-fact)

Alternate Attorney-in-fact:

                                       

Printed Name of Alternate Attorney-in-fact)

                                       

(Signature) (Date)

                                       

(Address of Alternate Attorney-in-fact)

_________________________________________

(Telephone Number of Alternate Attorney-in-fact)

NOTICE TO PERSON MAKING AN ADVANCE DIRECTIVE

FOR MENTAL HEALTH TREATMENT

This is an important legal document. It creates an advance directive for mental health treatment. Before signing this document, you should know the following important facts:

This document allows you to make decisions in advance about mental health treatment including three types of specialized mental health treatment: psychiatric medication, electroconvulsive therapy, and short-term (up to seventeen days) admission to a treatment facility. The instructions that you include in this advance directive will be followed only if two doctors or a judge believes you are not able to make mental health treatment decisions yourself. Otherwise, you will be considered able to give or withhold consent for your mental health treatment.

You may also appoint another person, known as an "attorney-in-fact" and another as an alternate attorney-in-fact to make these treatment decisions for you if you become incapable of making decisions. The person or persons you appoint have a duty to act consistently with your desires as stated in this document or, if your desires are not stated, to act in a manner consistent with what the believes to be in your interest. For the appointment to be effective, the persons you appoint must accept the appointment in writing. The person or persons have a right to withdraw from acting as your attorney-in-fact and or the alternative attorney-in-fact at any time.

You have the right to revoke this document in whole or in part at any time a physician determines that you are capable of giving or withholding informed consent for mental health treatment. If you revoke this document, you must notify your attorney-in-fact and any alternative attorney-in-fact in writing immediately. A revocation is effective when it is communicated to your attending physician in writing and must be signed. The revocation must be in the following form:

REVOCATION

I, , willfully and voluntarily revoke my advance directive for mental health treatment as indicated:

[ ] I revoke my entire advance directive.

[ ] I revoke the following portion of my advance directive:

___________________________________________________________

__________________________________________________________ 

___________________________________________________________

Signature Date

I, (Dr.) , have evaluated and determined that he or she is capable of giving or withholding informed consent for mental health treatment.

                                                          

  Printed name of physician Signature  Date

                                               

Address of physician  Phone Number

NOTICE TO PHYSICIAN OR PROVIDER

Under chapter , Hawaii Revised Statutes, a person may use this advance directive for mental health treatment to provide consent for mental health treatment or to appoint a representative to make mental health treatment decisions when the person is incapable of making those decisions. A person is "incapable" when, in the opinion of a judge or two persons, who shall be physicians or licensed psychologists, the person's ability to receive and evaluate information effectively or communicate decisions is impaired to such an extent that the person currently lacks the capacity to make mental health treatment decisions.

This document becomes operative when it is delivered to the person's physician or other provider and remains valid until revoked. Upon being presented with this advance directive for mental health treatment, a physician or provider must make it a part of the person's medical record. When acting under authority of the advance directive for mental health treatment, a physician or provider must comply with it to the fullest extent possible. If the physician or provider is unwilling to comply with the advance directive for mental health treatment, the physician or provider may withdraw from providing treatment consistent with professional judgment and must promptly notify the person and the person's representative and document the notification in the person's medical record. A physician or provider who administers or does not administer mental health treatment according to and in good faith reliance upon the validity of this advance directive for mental health treatment is not subject to criminal prosecution, civil liability or professional disciplinary action resulting from a subsequent finding of the advance directive's invalidity.

EXAMINER'S CERTIFICATION

We, the undersigned, have made an examination of , and do hereby certify that we made a careful personal examination of the actual condition of the person and find the individual:

1. (Is) (Is not) in need of mental health treatment; and

2. (Is) (Is not) capable to participate in decisions about the individual's own mental health treatment.

The facts and circumstances on which we base our opinions are stated in the following report of symptoms and history of case, which is hereby made a part hereof. According to the advance directive for mental health treatment, (name of patient)

__________________________________ wishes to receive mental health treatment in accordance with the preferences and instructions stated in the advance directive for mental health treatment.

We are duly licensed to practice in the State of Hawaii, are not related to by blood or marriage, and have no interest in the individual's estate.

Signed this _____ day of__________ 20     

                                                          

  Printed name of physician Signature  Date

                                               

Address of physician  Phone Number

                                                          

  Printed name of physician Signature  Date

                                               

Address of physician  Phone Number

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

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