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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).

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Use of advance directives in the mental health context and treatment over protest

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
Advance Directives Treatment Over ProtestHB 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

    § 54.1-2981 et seq.


Advance directives mental health admissions
Advance Directives Treatment Over ProtestMental 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
Mental Health Admission: Physician Findings Treatment Over Protest

  • 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 findings1
Mental Health Admission: Physician Findings Treatment Over Protest

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
Mental Health Admission: Guardianship Order Treatment Over Protest

  • 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 order1
Mental Health Admission: Guardianship Order Treatment Over Protest

  • 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
Admission by Agent under Advance Directive Treatment Over Protest

  • 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
Treatment Over Protest 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
Treatment Over Protest, con’t. Treatment Over Protest

  • 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 t1
Treatment Over Protest, con’t. Treatment Over Protest

  • 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 t2
Treatment Over Protest, con’t. Treatment Over Protest

  • New section 54.1-2986.2 now allows treatment over protest under the HCDA in two circumstances:


Treatment over protest con t3
Treatment Over Protest, con’t. Treatment Over Protest

  • (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….


Treatment over protest con t4
Treatment Over Protest, con’t. Treatment Over Protest

  • (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.


Treatment over protest con t5
Treatment Over Protest, con’t. Treatment Over Protest

  • 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
Advance Directives Treatment Over ProtestPreservation 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 t6
Treatment Over Protest, con’t. Treatment Over Protest

  • 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
Vignette One: Treatment Over Protest

  • 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
Advance Directives Treatment Over ProtestExclusions/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
Vignette Two: Treatment Over Protest

  • 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
Vignette Three: Treatment Over Protest

  • 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
Vignette Four: Treatment Over Protest

  • 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
Vignette Five: Treatment Over Protest

  • 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
Vignette Six Treatment Over Protest

  • 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
Vignette Seven Treatment Over Protest

  • 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.


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