MENTAL HEALTH ADVANCE DIRECTIVES Disability Rights New Mexico (505) 256-3100 Statewide Toll-free 1-800-432-4682 (Voice and TTY) Email: info@drnm.org Website: www.drnm.org
MENTAL HEALTH ADVANCE DIRECTIVES (Psychiatric Advance Directives or PADs) OVERVIEW NEW MEXICO S MENTAL HEALTH CARE TREATMENT DECISIONS ACT NMSA 1978, 24-7B-1 to 24-7B-16 (2006)
What is a mental health or psychiatric advance directive (PAD)? Psychiatric Advance Directives (PADs) are legal documents designed to: Allow an individual to state preferences regarding mental health care before a mental health crisis occurs and when mental illness temporarily compromises ability to make or communicate mental health treatment decisions Swanson, Jeffrey, Ph.D. and Swartz, Marvin, MD, What does research say about Psychiatric Advance Directives?, Duke University Medical Center, Department of Psychiatry and Behavioral Sciences 3
A Psychiatric Advance Directive empowers me to stay in control even when I am not in control. Jane E. Thompson, Certified Peer Specialist Individual investment in treatment 4
Modeled after New Mexico s Uniform Health Care Decisions Act, NMSA 1978, 24-7A-1 et seq. Created by adult or emancipated minor 16 or over Make mental health treatment decisions Individual instructions and/or Appoint Power of Attorney/Agent Plan ahead for mental health crises 5
When can an individual create a PAD Created by individual when he or she has capacity Activated upon certification that person lacks capacity Ceases to be effective when capacity regained Must wait until treatment guardian appointment completed 6
What is capacity? 24-7B-3 C Must be stable and have ability to prepare PAD Ability to understand and appreciate the nature and consequences of proposed mental health treatment significant benefits and risks alternatives to the proposed mental health treatment make and communicate an informed mental health treatment decision 7
How is capacity determined? 24-7B-5 Presumed to be capable of making own mental health care decision Declining recommended mental health care solely does not mean individual lacks capacity A qualified health care provider and mh treatment provider both must certify incapacity Must be written in medical records Individual can challenge determination of incapacity Lack of capacity here is not incapacity under Probate Code 8
What can and should an Advance Directive contain? 24-7B-7 (E) Must be: Signed by individual Signed by witness (notary optional, but recommended) Signed acceptance by agent (may be separate paper) May contain: Provider preferences Individual instructions such as: Agent/POA, possible alternate Meds that do and don t work, allergies Interventions that may work Alternatives to seclusion or restraint Visitors Typical reactions to crisis Complementary therapies Refusing particular Treatment 9
How is PAD created? While having capacity May appoint POA/Agent authorized to make mental health treatment decisions Any person except attending health care professional or employee Owner operator or employee of MH treatment facility where individual is receiving care unless related by blood, marriage or adoption May include individual instructions POA/Agent must make decisions in accordance with instructions, if any, and other wishes known 10
PAD created continued Must be signed by individual and witness Witness attests person appears to have capacity and not under duress to sign/complete PAD Witness can t be: Agent/POA of individual Blood relative or spouse Beneficiary Attending qualified health care professional Owner, operator, employee of MH facility, or parent organization of MH facility 11
What can/should PAD contain? Should be: Signed by individual and witness (notary optional, but recommended) Signed acceptance by agent May contain: Provider preferences Individual instructions Alternative POA/agent Medications history Interventions Alternative to R&S Visitors Reactions to Crisis Complementary therapies Refusing particular treatment 12
Mechanics Provide to own clinician, POA/Agent, mental health facilities where person might go if hospitalized, community supports as appropriate Keep list of places/individuals given copy of PAD If PAD updated, furnish with most recent copy Take copy of PAD when traveling Medical alert bracelet 13
Can a PAD be revoked? 24-7B-6 YES when individual has regained or has capacity May revoke the designated agent either in writing or by telling the supervising health care provider May revoke all other parts of a PAD in any manner Filing for divorce revokes spouse as POA/Agent, unless specified A subsequent PAD trumps to the extent it conflicts with prior PAD Unless otherwise specified, PAD for MH shall be treated separately than Advance Directive for healthcare 14
What if the individual has a guardian? 24-7B-8 If PAD executed before treatment or probate guardianship appointed then PAD trumps guardian If guardian is appointed in a probate proceeding, can only make mental health treatment decisions if that power granted by court Guardian can t revoke preexisting PAD unless court authorizes 15
What about protected health care information? 24-7B-10 Designated POA/Agent in PAD has the same access to records and power to disclose information as the individual, unless specifically limited in PAD 16
What are the requirements for Mental Health Treatment Providers under Federal Law? Ask individuals when admitted for MH treatment whether they have a PAD Put copy of PAD in mental health record Inform individuals about the availability of PADs at discharge planning 17
What are the obligations of a Mental Health Treatment Provider under our state s law? 24-7B-9 Supervising health care provider shall: Promptly chart and request copy of PAD for medical record Record knowledge of/or determination of incapacity or recovered capacity in record Notify designated Agent/POA that PAD in effect Promptly communicate to the patient the decision made and the identity of the person making the decision (Agent/POA) Follow PAD as if individual giving treatment instructions and had capacity 18
Providers must comply with PAD unless: Treatment is not feasible or available Provider not licensed to provide treatment requested Treatment conflicts with law Medically ineffective or contrary to generally accepted standards 19
If treatment provider declines to comply with the individual s PAD, must: Promptly inform the individual and authorized Agent/POA if there is one Provide care Arrange for a transfer to facility that will honor PAD and continue to provide care Provider shall not require or prohibit PAD or revocation as condition for care 20
Is there the possibility of money damages? 27-2B-13 Providers or other individuals intentionally violating this Act subject up to $5,000 in damages, and reasonable attorney fees 21
What do PADs really mean for mental health practitioners? Providers shall follow PAD instructions to the same extent as if decision had been made by the individual while having capacity If one part of the PAD cannot be followed, it does not mean that the other provisions will not be followed New Mexico Mental Health and Developmental Disabilities Code still applies 22
What should be done to make the best use of PADS? Individuals may work with a facilitator and/or their mental health provider to write a PAD tailored to the individual s specific situation PADs should be updated periodically, particularly after a crisis Individuals should involve their support system if possible Individuals may benefit from assistance to find suitable advocates and supports, such as certified peer support specialists Adapted from: Advance Directives for Mental Health Treatment: Clinical and Ethical Issues, Marvin Swartz, MD, Department of Psychiatry & Behavioral Sciences, Duke University Medical Center, Research, MS Powerpoint/pdf. http://pad.duhs.duke.edu/links.html 23
The clear import of the [Mental Health Care Decisions] Act is to require compliance with an individual s treatment decision made while that individual has capacity Protection and Advocacy System, Jane Does 1-3 and John Doe 1 v. City of Albuquerque, 2008- NMCA-, Para.70. 24
NATIONAL RESOURCES ON PSYCHIATRIC ADVANCE DIRECTIVES National Resource Center on Psychiatric Advance Directives (NRC-PAD) http://www.nrc-pad.org The National Resource Center on Psychiatric Advance Directives is collaboration between The Department of Psychiatry and Behavioral Sciences, Duke University Medical Center and the Bazelon Center for Mental Health Law, funded by a grant from the John D. and Catherine T. MacArthur Foundation. Duke University Program on Psychiatric Advance Directives http://pad.duhs.duke.edu/links.html National Alliance on Mental Illness (NAMI)NAMI's Position on Psychiatric Advance Directives PADs should be considered as a way to empower consumers to take a more active role in their treatment, and as a way to avoid conflicts over treatment and medication issues. 25