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Advance Directives For Behavioral Health Care

Materials used with Permission From the National Resource Center on Psychiatric Advance Directives

NJ Division of Mental Health ServicesUMDNJ-University Behavioral HealthCare

June 2007

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What are Psychiatric Advance Directives (PAD’s)? 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.

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What does it do?

Helps consumers control treatment decisions Helps families assist their loved ones in crisis States preferences Provides care guidelines Supports all concerned parties

Consumer Family and other supporters Treatment providers

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Goal 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.

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Why Are PAD’s Important

Patent Self-Determination Act (PSDA) of 1990 requires hospitals and clinics to assist in the use of Medical Advance Directives (‘living wills”).

In states with PAD’s laws, the PSDA requires hospital and clinics to assist in their use.

New Jersey has a PAD law called the “New Jersey Advance Directives for Mental Health Care Act”.

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Why Are PAD’s Important

Allows families to speak directly with providers during crisis.

Allows families help make decisions during crisis.

Still supports consumer autonomy and empowerment in mental health care.

May reduce involuntary treatment. May improve continuity of care.

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The Information in PAD’s

Crisis symptoms Medication choice Hospital choice Emergency contacts Relapse and protective factors Instructions to staff Other instructions

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The Potential of PAD’s

PAD’s canEmpower the consumerEnhance communicationsFacilitate timely interventionsReduce adversarial litigation

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Two Parts to PAD’s

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 crisis. May be designed with limited or broad powers.

Not required to have either. Can choose to have both.

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Instructional Directives

Usually permits individual to plan for, consent to, or refuse:Hospital admissionMedicationsElectroconvulsive treatmentOther treatments for mental illness.

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

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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.

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Making an Instructional Directive Any adult “of sound mind” can make. Must be in writing. Signed in presence of one witness:

Not a relative.Not person’s doctor, mental health provider or other staff.Not staff of a health care facility which the client is a

patient.Present to doctor and other mental treatment providers.

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What should the doctors or staff do with the Instructional Directive? Must make a part of medical record. Must act in accordance with instructional

directive when patient is determined to be “lack of decision making capacity”.

May notify all other providers to follow instructional directive.

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What does “Lacking in Decision Making Capacity” Mean?

…in the opinion of two responsible mental healthcare professionals the person currently lacks sufficient understanding or capacity to make and communicate mental health treatment decisions.”

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Must clinicians always honor the instructions? Clinicians may disregard instructions:

Not consistent with “generally accepted community practice standards.”

When treatment 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.

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If one instruction is not followed, what happens to other instructions?Generally: If one part of 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.

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Can the instructions be changed?

Generally: These documents can be changed or revoked at any time by notifying the physician or treatment team, revising the document, or by destroying the document.

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Health Care Power of Attorney (HCPA) Allows a person to appoint someone to

make treatment decisions when it has been determined that the consumer lacks decision making capacity. Can be combined with instructional directive.But may be two different forms.

Any capable adult may execute.

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Health Care Power of Attorney

Someone the consumer trust… Someone to negotiate consumer care… When consumer cannot.

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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 name several people to

serve if one unavailable.

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When does health care power of attorney take effect? When consumer is found to be lacking in

decision making capacity and continues during period of incapacity.

Determined by two mental health professionals.

Must document decision of lacking decision making capacity.

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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.

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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 medication and

ETC.

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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.

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Why don’t more consumers have PADs? Families have not realized they should

encourage them! Fewer than half of states have these laws. Some states allow pads under medical advance

directives. Advance directives may be difficult to complete

for some consumers. Help in completing advance directives may not

always be available.

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Where can I get more information about PADs? New Jersey Division of Mental Health Services

www.state.nj.us/humanservices/dmhs/index.html National Resource Center on Psychiatric Advance Directives

www.nrc-pad.org Bazelon Center

www.bazelon.org NAMI

www.nami.org National Mental Health Association

www.nmha.org