Transcript Karen A. DeSousa-Use of Advance Directives in the Mental Health

Use of Advance Directives in
the Mental Health Context
and Treatment Over Protest
Karen A. DeSousa
Office of the Attorney General
Advance Directives
HB 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
 Modified the law governing situations in
which patients with decisional incapacity
object to treatment

Advance Directives
Mental 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
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
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
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
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
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
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.
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
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
Treatment Over Protest, con’t.

New section 54.1-2986.2 now allows
treatment over protest under the HCDA in
two circumstances:
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 was signed 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….
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 lifeprolonging 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.
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.
Advance Directives
Preservation 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
Treatment Over Protest, con’t.
For those providers licensed, operated or
funded by the DBHDS, however, 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.

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?
Advance Directives
Exclusions/Limitations


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
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?
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?
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?
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?
Vignette Six

A patient with severe dementia resides in a
nursing home. He needs antibiotic treatment for
an infected decubitus ulcer, but he refuses to
take any medication or allow IV lines to be
inserted, even though he does not understand
the nature of his medical condition or the need
for treatment. His decisional capacity is severely
impaired, but his wife is prepared to authorize
the antibiotic therapy. What should be done?
Vignette Seven

A patient who has just been hospitalized for an acute
traumatic brain injury from a motor vehicle accident is
seriously agitated and disoriented. He is confabulating
(thinking that the medical staff are prison guards) and he
has no recognition that his cognition is impaired. He just
wants to leave in order to return home and to work. The
medical unit is not locked, and he has twice attempted to
leave the hospital. The first time, the nursing staff was
able to persuade him to return to his room, but the
second time, security needed to be called. No family
members are available.