Use of Advance Directives in the Mental Health Context and Treatment Over Protest

1. Use of Advance Directives in the Mental Health Context and Treatment Over Protest Karen A. DeSousa Office of the Attorney General

2. Advance DirectivesHB 2396(Bell)/SB 1142(Whipple) • Significantly expanded Health Care Decisions Act to permit advance directives beyond end of life decisions and appointment of health care agent to include instructions for all health care decisions, including mental health care and MH facility admissions § 54.1-2981 et seq.

3. “Advance Directive” • A witnessed written document, voluntarily executed by the declarant in accordance with the requirements of § 54.1-2983; or • A witnessed oral statement, made by the declarant subsequent to the time he is diagnosed as suffering from a terminal condition and in accordance with provisions of § 54.1-2983

4. “Durable Do Not Resuscitate Order” (DDNR) • A written physician’s order issued pursuant to § 54.1-2987.1 to withhold cardiopulmonary resuscitation (including cardiac compression, endotracheal intubation and other advanced airway management, artificial ventilation, and defibrilation and related procedures) from a particular patient in the event of cardiac or respiratory arrest

5. “Witness” • Any person over the age of 18, including spouse or blood relative of the patient • Employees of health care facilities and physician’s offices who act in good faith are permitted to serve as witnesses for purposes of the HCDA

6. Advance Directives Procedure • Any adult capable of making an informed decision may make an advance directive to: • Specify health care declarant does or does not authorize • Appoint agent to make health care decisions • Specify an anatomical gift after death of all declarant’s body or organ, tissue or eye donation § 54.1-2983

7. Advance DirectivesResearch • Advance directive may authorize agent to approve declarant’s participation in research approved by institutional review board that • Offers prospect of direct therapeutic benefit to declarant or • That aims to increase scientific understanding of any condition declarant may have or • Promotes human well-being even though offers no prospect of direct benefit to declarant § 54.1-2983.1

8. Advance DirectivesProcedure • Use of the form found at 54.1-2984 is suggested, but not required • Advance Directive must be signed by two witnesses • Need not be notarized unless filed with the Advance Directive Registry maintained by Virginia Department of Health (not yet operative) § 54.1-2995

9. Notice to Physician • It shall be the responsibility of the patient to provide for notification to his attending physician that an advance directive has been made. • In the event the declarant is comatose, incapacitated or otherwise incapable of communication, any other person may notify the physician.

10. Notice to Physician, con’t. • The attending physician shall promptly make the advance directive or a copy of the advance directive, if written, or the fact of the advance directive, if oral, a part of the declarant’s medical records. • Presumption that an advance directive made per the HCDA was done voluntarily and in good faith

11. Rules for Health Care Agents • Must follow desires and preferences of the patient; • Shall not authorize a course of treatment which is contrary to the patient’s religious beliefs or basic values; • In the absence of other evidence, the agent shall make a choice based upon the patient’s best interests

12. Revocation of an Advance Directive • IF the declarant is capable of understanding the nature and consequences of his action: • An advance directive may be revoked at any time by the declarant by a signed, dated writing; OR • By physical cancellation or destruction of the advance directive by the declarant or another in his presence and at his direction; OR • By oral expression of intent to revoke.

13. Revocation of an Advance Directive, con’t. • Any such revocation shall be effective when communicated to the attending physician • No civil or criminal liability for failure to act upon revocation unless that person (ie., the attending physician) has actual knowledge of such revocation

14. Absence of an Advance Directive • The attending physician may provide to, withhold or withdraw health care, upon authorization of any of the following persons, in the specified order of priority, if the physician is not aware of any available, willing and competent person in a higher class:

15. Health Care Surrogates 1. Guardian for the patient 2. Spouse of the Patient, except where divorce action has been filed and is not yet final 3. Adult child of the patient 4. Parent of the patient 5. Adult brother or sister of the patient; or 6. Any other relative in the descending order of blood relationship. Agent under an Advance Directive also a surrogate and has decision-making priority over above.

16. Advance DirectivesCapacity Determinations • Incapable of making informed decision for both § 37.2-805.1 and HCDA means • Adult is incapable of making informed decision about providing, continuing, withholding or withdrawing specific health care treatment or course of treatment because he is unable • To understand the nature, extent or probable consequences of proposed health care decision or • To make rational evaluation of risks and benefits of alternatives to that decision §§ 37.2-805.1 and 54.1-2982

17. Advance DirectivesCapacity Determinations • Attending physician must diagnose and certify in writing prior to providing, continuing, withholding, or withdrawing health care and no less frequently than every 180 days, and • Obtain second certification based on personal examination from physician or licensed clinical psychologist not currently involved in treatment of person • Unless independent physician or clinical psychologist not reasonably available § 54.1-2987.1

18. Advance DirectivesCapacity Determinations • Notice of incapacity determination must be provided to patient as soon as practical and to extent capable of receiving notice before treatment is provided • Notice must also be provided to patient’s agent or other substitute decision maker • Single physician may reverse determination in writing at any time § 54.1-2983.2

19. Advance DirectivesExclusions/Limitations • May not be used to authorize nontherapeutic sterilization, abortion, psychosurgery • HCDA amended to provide that provisions in Chapter 8 of Title 37.2 apply, notwithstanding any contrary instruction in advance directive • Advance directive may be used to authorize admission of patient to a mental health facility, only if admission is otherwise authorized under Chapter 8 of Title 37.2 • I.e., admission procedures in Title 37.2 control over Advance Directive § 54.1-2983.3

20. Advance DirectivesMental Health Admissions • Before 2009, an incapacitated person could not be admitted to a mental health facility by a legally authorized representative. The only legal route of admission was civil commitment • New § 37.2-805.1 section permits an agent appointed in advance directive or a guardian to admit incapacitated person to MH facility for up to 10 days if: • Physician on staff or designated by admitting facility examines person and makes specific findings in writing • CSB pre-admission screening required for admission to DBHDS facilities § 37.2-805.1

21. Admission by Agent under Advance Directive • Declarant may authorize agent to consent to his admission to mental health facility for no more than 10 days provided declarant does not protest admission at that time and physician makes necessary findings in § 37.2-805.1 • Declarant may authorize his admission to mental health facility over his protest, but only if declarant’s physician or clinical psychologist attests in the advance directive that declarant is capable of making informed decision and understands consequences of this provision § 54.1-2984

22. Mental Health Admission: Physician Findings • Physician on staff or with privileges at MH facility must examine person and find in writing that person: • Has a mental illness • Is incapable of making an informed decision, as defined in HCDA, regarding admission • Is in need of treatment in MH facility • Facility is willing to admit person, and § 37.2-805.1

23. Mental Health Admission: Physician Findings For Health Care Agent Admissions: • Person has executed advance directive in accordance with HCDA authorizing his agent to consent to his admission, and • If protesting admission, given specific authorization for agent to make decisions even in event of his protest (‘Ulysses clause”) For Guardian Admissions: • Guardianship order specifically authorizes guardian to consent to admission to MH facility § 37.2-805.1

24. Mental Health Admission: Guardianship Order • Order must find by clear and convincing evidence: • Person has severe and persistent mental illness significantly impairing person’s capacity to exercise judgment or self-control, as confirmed by evaluation of psychiatrist • Person’s condition unlikely to improve in foreseeable future, and • Guardian has formulated plan for providing ongoing treatment of person’s illness in least restrictive setting §§ 37.2-805.1, 37.2-1009

25. Mental Health Admission: Guardianship Order • Guardian may not have professional relationship with incapacitated person or be employed by or affiliated with facility where person resides • If admission exceeds 10 days, person must be ordered to involuntary inpatient admission under § 37.2-817 (note: ECO/TDO not necessary) § 37.2-1009

26. Treatment Over Protest • Prior to the legislative changes, the HCDA did not authorize providing, continuing, withholding or withdrawing treatment if the treatment provider knew such action was protested by the patient, even if the patient was incapacitated at the time.

27. Treatment Over Protest, con’t. • Authority to treat over protest in the MH context came instead from either: • Judicial authorization, although ECT or antipsychotic medication can only be ordered over protest if the person is also subject to an order of involuntary admission; or • Consent of an authorized representative appointed under the human rights regulations, but only following LHRC review; or • Consent of a guardian, who must consider the incapacitated person’s expressed desires to the extent known and feasible

28. Treatment Over Protest, con’t. • Authority to treat over protest for providers not licensed, operated or funded by the DBHDS was less clear: • Consent of a guardian, who must consider the incapacitated person’s expressed desires to the extent known and feasible • Judicial authorization for treatment if no legally authorized representative available to give consent

29. Treatment Over Protest, con’t. • New section 54.1-2986.2 now allows treatment over protest under the HCDA in two circumstances:

30. Treatment Over Protest, con’t. • (B) If a patient who is incapable of making an informed decision protests a health care recommendation that is otherwise authorized by his advance directive, his agent may make a decision consistent with the advance directive over the patient's protest if: 1. The decision does not involve withholding or withdrawing life-prolonging procedures; 2. The patient's advance directive explicitly states that the provisions of his advance directive regarding the specific decision at issue should govern, even over his later protest; 3. The patient's advance directive wassigned by the patient's attending physician or licensed clinical psychologist who attested that the patient was capable of making an informed decision and understood the consequences of the provision; and 4. The health care that is to be provided, continued, withheld or withdrawn is determined and documented by the patient's attending physician to be medically appropriate and is otherwise permitted by law. Or….

31. Treatment Over Protest, con’t. • (C) If a patient who is incapable of making an informed decision protests a health care recommendation, his agent, or person authorized to make decisions by § 54.1-2986, may make a decision over the patient's protest if: 1. The decision does not involve withholding or withdrawing life-prolonging procedures; 2. The health care decision is based, to the extent known, on the patient's religious beliefs and basic values and on any preferences previously expressed by the patient regarding such health care or, if they are unknown, is in the patient's best interests; and 3. The health care that is to be provided, continued, withheld, or withdrawn has been affirmed and documented as being ethically acceptable by the health care facility's ethics committee, if one exists, or otherwise by two physicians not currently involved in the patient's care, or in the determination of the patient's capacity to make health care decisions.

32. Treatment Over Protest, con’t. • If a patient protests the authority of a named agent or any person authorized to make health care decisions by § 54.1-2986, except for the patient's guardian, the protested individual has no authority under the HCDA to make health care decisions on his behalf unless the patient's advance directive explicitly confers continuing authority on his agent, even over his later protest. • If the protested individual is denied authority under this subsection, authority to make health care decisions shall be determined by any other provisions of the patient's advance directive, or in accordance with § 54.1-2986.

33. Treatment Over Protest, con’t. • For those providers licensed, operated or funded by the DBHDS, the human rights regulations still apply (12 VAC 35-115 et. seq), and they prohibit treatment over protest based on an agent’s consent unless certain conditions are met. • There is a right to LHRC review pursuant to 12 VAC 35-115-200.

34. Advance DirectivesPreservation of other Laws • Provisions of Health Care Decisions Act do not alter or limit authority that otherwise exists under common law, statutes or regulations of Commonwealth • Of a health care provider to provide health care, or • Of a person’s agent, guardian or other legally authorized representative to make decisions on behalf of incapacitated person e.g., guardianship, judicial authorization for treatment, Human Rights Regulations § 54.1-2992

35. Medically Unnecessary Treatment Not Required • Nothing in the HCDA shall be construed to require a physician to prescribe or render medical treatment that the physician determines to be medically or ethically inappropriate

36. Medically Unnecessary Treatment Not Required, con’t. • In such a case, if the physician’s determination is contrary to the terms of an Advance Directive or the treatment decision of a person designated to make the decision under HCDA, or a DDNR, the physician must make a reasonable effort to inform the decision-maker and to transfer the patient if the conflict remains unresolved • Must continue to provide reasonably available life-sustaining care as requested pending transfer

37. Reciprocity • An Advance Directive executed in another state shall be deemed to be validly executed for purposes of the HCDA if executed in compliance with the laws of Virginia or the laws of the state where executed • Such Advance Directive shall be construed in accordance with Virginia law

38. Vignette One: • A TDO is issued for a patient who meets commitment criteria, but whose AD expressly forbids admission to a psychiatric facility. • What should the provider do? • Can this person be admitted?

39. Vignette Two: • The same scenario as Vignette One, but the person’s AD only precludes commitment to Hospital A. Hospital A is the only facility available at this time. • Can the person be admitted to Hospital A?

40. Vignette Three: • A patient admitted under a TDO has lost control and is a danger to himself and others, engaging in dangerous behaviors on the unit. His AD says “NO forced medication,” and he is objecting. • Can forced medication be given? • Under what circumstances?

41. Vignette Four: • The patient is experiencing marked psychotic symptoms and it is felt that treatment with an antipsychotic medication is medically necessary, although the situation is not an emergency. The patient’s AD forbids all medication over objection, and he is objecting. • What should the provider do? • Is there a way this medication can be given? • What changes if there is no authorized representative? • What changes if the patient is not involuntarily admitted?

42. Vignette Five: • The patient is involuntarily admitted and has an AD precluding treatment with drug A, but specifically authorizing treatment with drug B. • Which drug should be given? • What if drug B is clinically inappropriate? • How does your answer change if it is an emergency?