Health Care Directives in Minnesota

1. Health Care Directivesin Minnesota Patricia M. Siebert Minnesota Disability Law Center, Federal Protection and Advocacy System for Minnesota

2. Your Right to Bodily Integrity “ No right is held more sacred, or is more carefully guarded by the common law, then the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.” Minnesota Supreme Court,1976

3. What is an “Advance” Directive? • A legal document with instructions/ directives on medical care, written in advance of the anticipated need • A person can name a decision-making agentto carry out instructions (in Minnesota) • Directive usually goes into effect when a person lacks the mental capacity to make informed decisions about medical care • Incapacity decision is usually made by doctor

4. Minnesota has two types: • The Advance Psychiatric Directive (or “declaration”) applies only to ECT and antipsychotic medications • The Health Care Directive applies to health care decisions, including other mental health decisions, and end of life decisions.

5. Advance Psychiatric Directive (APD) • “A competent adult may make a written declaration of preferences or instructions regarding intrusive MH tx”. Minnesota Statute §253B.03, Subd. 6d. • Applies only to decisions about treatment with neuroleptic medications and ECT • Courts have extended it to newer antipsychotics, such as Risperdol, Zyprexa

6. Health Care Directive (HCD) • Minnesota Statutes Chapter 145C • Much broader in scope than APD; APD is incorporated by reference into the HCD • HCD can direct physical and mental health care, and end of life decisions • May give agent the authority to make health care decisions, even while having capacity

7. APD and HCD Legal Basics • Executed by a person with capacity to do so (legal presumption of capacity) • In writing, signed and dated, two witnesses • APD: “the declarant understands the nature and significance of the declaration” • HCD alternate execution-- signature before notary • Both may designate a proxy or agent • Both can be made part of the medical record

8. Legal basics, continued: • A directive may be revoked at any time while a person has the capacity to do so (destruction, written revocation, verbally before 2 witnesses, later directive) • In Minnesota, a directive cannot be revoked during a time of incapacity • “Inactivates” when person regains capacity

9. Definitions of Note • “Decision-making capacity” is ability to understand the significant risks, benefits, and alternatives to proposed health care and to make and communicate a health care decision.” 145C.02, Subd 1b • “Health care” means any care, treatment , service or procedure to maintain, diagnose or otherwise affect a person’s physical or mental condition”, including one’s abode. 145C.02, Subd. 4

10. Other Requirements • Witness may not be the agent/proxy and at least one witness may not be a provider at the time of signing • Agent/proxy cannot be one’s attending provider at time of execution or activation • A directive from another state that meets these basic requirements is viewed as a legally sufficient, valid directive (145C.04)

11. Obligations of Providers • Provider must obtain informed consent if the person is capable of giving it • HCD: provider must act in good faith per applicable standards of care (145C.11) • APD: comply to the “fullest extent possible, consistent with reasonable medical practice, the availability of treatments requested, and applicable law.” (253B.03, Subd 6d(c)) • If unwilling at any time to comply, the provider must promptly notify the person and document in record.

12. Legal Presumptions (145C.10) • Person is presumed to have the capacity to execute a HCD/APD absent clear and convincing evidence to the contrary • Presumption that HCD is valid absent clear and convincing evidence to the contrary • Providers are presumed to be acting in good faith absent clear and convincing evidence to the contrary

13. Legal Immunity for: • Agent acting in good faith reliance on directive • Provider relying on directive in good faith and within standards of care is not subject to criminal prosecution, civil liability or professional discipline • Ditto for provider relying on decisions made by an agent the provider believes is acting in good faith • A provider administering intrusive MH treatment in “good faith reliance” on an APD is held harmless from liability if later finding of invalidity

14. Life Sustaining Care (145C.15) • HCD can (should!) have instructions regarding nutrition, hydration and other end of life decisions • The provider must provide the directed care or transfer the care to another provider willing to provide care. • Provider must notify the agent if unwilling to comply and document notification in record

15. Other Instructions may include: • Instructions/ authorization of agent to make decisions regarding intrusive MH tx • Instructions about physical and other mental health treatment, including hospitalization, nursing home • Authorizing agent to act even though the person retains decision-making capacity • Note--naming an agent also acts as a nomination of guardian unless otherwise stated in HCD, but final decision on guardian is up to judge.

16. Other instructions may include: • Instructions as to how pregnancy will affect health care decisions • Instructions as to when someone other than the attending physician may activate the directive, if the principal depends on prayer for care of disease, or the principal is in a health care facility

17. Record Access • HCD may permit or limit the agent to review and disclose medical records and may have instructions regarding disclosure. • HIPAA promotes the use of HCD’s. Provisions facilitate record access “consistent with prior expressed wishes known to the provider”. 45 CFR §164.510

18. Penalties • Gross misdemeanor for willfully concealing/canceling HCD, withholding knowledge of a revocation, falsifying a HCD, coercing execution of a HCD or requiring/prohibiting HCD as a condition of receiving services • Felony if one of the above actions results in bodily harm to the person

19. Court Orders and Medications • The provider “may subject a declarant to intrusive treatment in a manner contrary to the declarant’s expressed wishes only upon order of the court”. 253B.03, Subd.6d(d) • But court must follow valid directive. 253B.092 • Emergency medication by physician (“necessary to prevent serious, immediate physical harm to the patient or others”) is limited to 14 days or through the first court hearing. 253B.092, Subd. 3

20. Court cases about directives • Vermont law allowed directive of committed MI patient to be superseded after 45 days, if “no significant improvement”. This standard was not applied to others with HCDs • 2nd Circuit found that Vermont law violated the ADA: cannot treat HCD differently because person is later committed. Hargrave v. Vermont, 340 F.3d 27 (2nd Cir. 2003) • MN cases focus on agent/guardian issues

21. Duke Study on Directives (Psychiatric News, July 15, 2005) • 1,000 persons in outpatient MH care in 5 locations throughout the country • 4-13% with HCDs; 65-77% wanted one • Those completing HCDs were more likely to have “high insight” (1.9), a rep payee (3.0), had been transported by police to treatment (2.3), or faced pressure to keep their appointments (1.8)

22. What did the directives say? • 121actual HCDs randomized from public-sector settings • 98% alerted doctors to at least one crisis symptom • 88% named a hospital they would go to; 62% named hospitals they would refuse • 50% instructed staff on how to avoid seclusion and restraint

23. 94% gave advance consent for at least one medication; 77% also rejected at least one medication • “No one refused all medications, but no one liked Haldol.” Dr. Eric Elbogen • 75% listed side effects experienced on particular medications • 62% refused to consent to ECT

24. Psychiatrists in NC surveyed: • 2/3 said they would honor a HCD, but believed HCDs would be used for refusal • 70% would follow a HCD if the patient had concerns about drug side effects • Only 40% would follow one if the HCD “as written” sounded “psychotic” and the patient had a history of violence • http://pad.duhs.duke.edu

25. Why have an Advance Directive? • Operationalizes patient choice • Opportunity to have your best idea of a crisis prevention plan that works • Opportunity to authorize in advance who you want to receive/release information • Can incorporate your legal arrangements for care of your children, finances, pets • Everyone needs to think about end of life decisions.

26. Give me an idea of what some good instructions might be. • Get me help if I start to bounce checks and order lots of stuff from TV ads. • I do not want any injections because I am afraid of shots but am OK with pills. • If I’m hospitalized, I want to be at Abbott, where I know and trust the staff. • Because of past abuse, I cannot be put into restraints. This would worsen my condition.

27. What might a “suspect” directive look like? • I will not eat any hospital food because I know it’s poisoned • I will not take any medications because doctors are really CIA agents • I want Oprah Winfrey to be my proxy An irrational directive will raise questions about validity!!

28. Why have a proxy/agent? • To see that your instructions are carried out • To work with care providers at a time when it is very hard for you to do so • A proxy means a more flexible directive • A proxy can be anyone you trust (with some exceptions)

29. How long is a directive in effect? • When your condition is such that you have regained the capacity to make informed decisions, your directive is no longer in effect • In the health care directive, you can authorize your Proxy/Agent to make decisions for you even at a time when you have the capacity to make your own decisions

30. Can I prepare a directive in the hospital or under commitment? • Under the law a person is assumed competent – even if committed • If you are under a Jarvis order, you are legally incompetent to make medication decisions. • Directives should not be filled out when your judgment is impaired • Directives CAN be filled out as part of a discharge plan if you are doing well

31. Who should have a copy of my directive? • Federal law requires that health care providers make the directive you give them a part of your medical chart • Those involved with your care/treatment • Your Agent/Proxy • Case Manager? Hospital? Family/Friends? • Keep your copy of the directive in a safe, accessible spot and carry a wallet card with you

32. What if I refuse to go along with things I put in my directive? • A Proxy/Agent can work with providers to implement your instructions and make other decisions as needed • Treatment providers have an obligation to follow your directive, but may defer to the courts • Providers can file a petition for commitment and to administer medications, but a directive can have an affect on what the court decides

33. Tips for a successful directive: • Complete a draft or two before filling out the real thing • Sign and date the directive in front of two witnesses, age 18 or older • At least one witness must be someone who does NOT provide care/services to you on the day you sign the directive • Your witnesses should be able to confirm your capacity at the time of signing

34. Important considerations • A directive can be an effective relapse prevention/crisis intervention plan, including hospitalization and medication • An agent given flexibility can address contingencies not in the directive • Directives can coordinate other aspects of incapacity—children, finances, etc. • A directive does not give a person different or more rights than otherwise entitled to, but can help you get what you do have a right to.

35. REMEMBER • A directive is a tool for you to make decisions now about things that may happen in the future • A directive does not give you more than you are otherwise entitled to, so be realistic in the instructions you put in the directive • Make sure those who need to know have a copy • Update your directive regularly, especially when there are changes in your life!!!

36. Resources • LawMoose has various MN forms for living wills and HCDs: http://www.lawmoose.com/index.cfm?Action=Library.&Topic=mn180116 • Minnesota Disability Law Center: Intake: 1-800-292-4150 or 612-334-5790; may answer questions but cannot draft directives for you. Directive: http://www.mylegalaid.org/wp-content/uploads/2009/01/minnesota-advance-psychiatric-directive-and-health-care-directive.pdf