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
• Modified the law governing situations in which
  patients with decisional incapacity object to
  treatment
• 54.1-2981 et seq.

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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

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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

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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

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Mental Health Admission Guardianship Order

• Order must find by clear and convincing evidence
• Person has severe and persistent mental illness
  significantly impairing persons capacity to
  exercise judgment or self-control, as confirmed
  by evaluation of psychiatrist
• Persons condition unlikely to improve in
  foreseeable future, and
• Guardian has formulated plan for providing
  ongoing treatment of persons illness in least
  restrictive setting
• 37.2-805.1, 37.2-1009

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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

8
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
  declarants 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

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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.

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Treatment Over Protest, cont.

• 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 persons expressed desires to the
  extent known and feasible

11
Treatment Over Protest, cont.

• 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 persons expressed desires to the
  extent known and feasible
• Judicial authorization for treatment if no
  legally authorized representative available to
  give consent

12
Treatment Over Protest, cont.

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

13
Treatment Over Protest, cont.

• (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.

14
Treatment Over Protest, cont.

• (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.

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Treatment Over Protest, cont.

• 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.

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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 persons 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

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Treatment Over Protest, cont.

• 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 agents consent unless certain conditions are
  met.
• There is a right to LHRC review pursuant to 12
  VAC 35-115-200.

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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?

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Advance DirectivesExclusions/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

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Vignette Two

• The same scenario as Vignette One, but the
  persons 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?

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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?

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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
  patients 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?

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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?

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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?

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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.