ADVANCE DIRECTIVES
FOR MENTAL HEALTH SERVICES
WORKSHOP MANUAL
Note: Because the law is rapidly changing with respect to advance directives, information regarding the current state of the law should be regarded as opinion only. Participating in the workshop described herein does not guarantee that an advance directive created from it will be legally upheld.
The content of this workshop has been adapted from "Having your say" by Rhonda Syphax, MSW
9:00 Welcome and introductions
* Ground rules - confidentiality
9:30 What is an advance directive for mental health services?
* Definition and sample
* Background
* Benefits of having an advance directive
* Barriers to compliance with advance directives
* Instructions that can be included
* Types of advance directives
10:30 What difference does an advance directive make? (activity)
10:45 BREAK
11:00 Review and questions
11:15 How do you create an advance directive?
* Worksheet - What mental health treatments work for you!
* Contact information worksheet
12:00 LUNCH
1:15 The "AD-Maker" - Part I
* Introduction
* Where to get additional help
* Who should get your advance directive and how to talk to them
1:45 The "AD-Maker" - Part II
* Your advance directive (individual time)
4:15 Wrap-up and workshop evaluation form
4:30 Good-bye!
WHAT ARE MENTAL HEALTH ADVANCE DIRECTIVES?
* A mental health advance directive (MHAD) is a written statement, made by you, about your treatment choices and preferences.
* A MHAD is created during a time when your illness is not so severe as to impair you judgment – it is written “in advance” of those times.
* A MHAD has no impact until you have a mental health crisis, and may have difficulty saying what you need. At that point, the MHAD "speaks" for you.
* The case of “Darla”
BACKGROUND
* MHADs stem from advance directives for health care, which are legal documents commonly known as “living wills”.
* Study tests feasibility and usefulness of ADs for mental health care
* MHADs are a recent development – support rests on ADs for health care
* Current MHD and local requirements to make AD information available.
* Supports your choices regarding mental health treatment decisions. Gives you a "voice" and opportunity to participate in your treatment.
* Encourages use of your most desired treatments by documenting what has “worked” in the past
* Can provide for a substitute decision-maker if desired -- a Durable Power of Attorney who will advocate for your wishes.
* Can inform court proceedings related to civil commitment, guardianship, and psychiatric treatment, which may also shorten lengths-of-stay.
* Can provide information about useful alternatives to hospitalization.
* Provides methods for maintaining household while hospitalized
POTENTIAL BARRIERS TO COMPLIANCE WITH MHADs
* State law, hospital/agency policy, or practice standards may conflict with some instructions in MHADs for mental health care, and therefore may override the MHAD – for example:
-federal regulations regarding restraint, seclusion
-state laws regarding involuntary treatment
-requirement for hearing for use of ECT
* Lack of specific state statutes on the topic.
* Limited legal precedence.
* No guarantee of compliance
INSTRUCTIONS THAT CAN BE INCLUDED IN A MHAD
* Naming of a health care “agent”
* Individualized definition of when activate to the MHAD
* Preferences regarding medications and treatments.
* Preferences for emergency use of restraint, seclusion or tranquilization.
* Things to do to avoid a psychiatric emergency
* Alternatives to hospitalization and hospital preferences
* Persons to notify of a hospital admission.
* Preferences regarding use of ECT
* Releases of mental health care records.
* Persons not allowed to visit in the hospital.
* Arrangements for care of children, pets, and finances
REVOKING OR CHANGING AN ADVANCE DIRECTIVE
* MHADs may be revoked or changed at any time.
TYPES OF MENTAL HEALTH ADVANCE DIRECTIVES (MHADs)
INSTRUCTIONAL DIRECTIVE
Strengths
* expresses mental health treatment(s) you want
Weaknesses
* may not foresee all situations and treatment options
* limited support under Washington law
DURABLE POWER OF ATTORNEY
Strengths
* specifies your choice of an "agent", or advocate, who is legally empowered to make health care decisions for you (consistent with your stated wishes) when you are not able to make them yourself
* more clearly enforceable under Washington law and more familiar to providers
* can cover all treatment circumstances
* you may limit powers of agent in other ways you specify
Weaknesses
* it may be difficult to find an appropriate agent
* the agent may not fully understand or follow your wishes
* agents cannot consent to: (1) ECT, (2) psychosurgery, (3) restraint, (4) hospital admission
DURABLE POWER OF ATTORNEY WITH INSTRUCTIONS
Strengths
* most powerful
* provides the detail of your wishes to guide the person designated to advocate for these wishes
Weaknesses
* it may be difficult to find an appropriate agent
HOW TO CHOOSE YOUR HEALTH CARE AGENT
FOR A DURABLE POWER OF ATTORNEY
A health care agent is the person you appoint in a Durable Power of Attorney to make mental health treatment decisions for you if you are incapable of making them yourself. The agent does not need to be an attorney.
1) Your Health Care Agent may not be:
-any of your doctors or service providers, or any employee or administrator of a facility where you receive health care UNLESS they are your spouse, adult child or brother or sister.
2) Your Health Care Agent must:
-be willing and available to speak (in person and on the phone) to mental health treatment providers about your treatment wishes
-be able to represent your expressed wishes regarding treatment
-be at least 18 years old
3) Talk to your proposed Health Care Agent and discuss:
-how to use the advance directive
-your treatment wishes
-the sheet entitled, "how to be an effective agent"
-any concerns he or she has about acting as your health care agent
4) Choose a Health Care Agent (and alternative) and then...
-complete the advance directive including the Durable Power of Attorney portion
-give your health care agent a copy of your advance directive
-Case manager
-Durable Power of Attorney/proxy (if named)
-Relatives and friends who may be with you during crises
-24-hour crisis service
-hospitals and evaluation & treatment centers
-county-designated-mental-health staff
-ombudservice
WHERE TO GET ADDITIONAL HELP
* If you do not understand any part of the workshop or the advance directive document, please ask for further explanation during the workshop. Trainers and law students at the workshop will be happy to answer your questions or refer you to others who will. It is very important to understand the consequences of statements you make in these documents!
After the training, if you have questions about the study, please call Debra Srebnik or Dana Kovalchick at 206-341-4215. If you have legal questions about MHADs, Washington law, Durable Powers of Attorney, or health care advance directives, lawyers are also available to the project to answer your questions. Their contact information is below:
Seattle University Law School 206 –398-4145
Lisa Brodoff
Washington Protection and Advocacy 206-324-1524
David Lord
Columbia Legal Services 206-464-5933
If you have concerns about your mental health treatment more generally, talk first with your treatment providers and their supervisors. If that does not resolve the issue, you may wish to speak with your regional mental health ombudsperson at 206-205-5329.
REFERENCE MATERIALS
(available upon request)
Durable Power of Attorney definition - RCW 11.94.010
Informed Consent definition - RCW 7.70.065
Advance directives for psychiatric care: A legal analysis - Gallagher, Lisa, J.D.
Limits on the power of an agent - RCW 11.92.043
Bibliography
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Backlar, P. & McFarland, B. (1996). A survey on use of advance directives for mental health treatment in Oregon. Psychiatric Services, 47(12), 1389-1389.
Epstein, S., Martins, E., & Crowley, M. Pennanen, M. (1994). The use of an advance directive in consultation-liaison psychiatry: A case report. International Journal of Psychiatry in Medicine, 24(4), 371-376.
Gallagher, E. (in press). Advance directives for psychiatric care: A theoretical and practical overview for legal professionals. Psychology, public policy and law.
Hoge, S. (1994). The Patient Self-Determination Act and psychiatric care. Bulletin of the American Academy of Psychiatry & the Law, 22(4), 577-586.
Mental Health Weekly, Advance-directive push grows amid forced-treatment debate, May 3, 1999, pg. 1
Rogers, J., & Centifanti, J. (1991). Beyond "self-paternalism": Response to Rosenson and Kaster. Schizophrenia Bulletin, 17, 9-14.
Rosenson, M., & Kasten, A. (1991). Another view of autonomy: Arranging for consent in advance. Schizophrenia Bulletin, 17, 1-7.
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Sherman, P. (1998). Computer-assisted creation of psychiatric advance directives. Community Mental Health Journal, 34(4), 351-362.
Srebnik, D. (in press). Advance directives for mental health services: Current Perspectives and Future directions. Psychiatric Services.
Winick, B. (1996). Advance directive instruments for those with mental illness. University of Miami Law Review, 51(57), 57-95.