ENGROSSED SUBSTITUTE SENATE BILL 5223: Mental Health Advanced Directives Sharon Hall Vice President Risk Management Washington Casualty Company

Washington Casualty Co.2 Important The written materials and the information presented here do not reflect all the sections contained within the mental health advanced directive legislation. For complete information please read the bill as passed by the legislature.

Washington Casualty Co.3 Purpose of Legislation To allow an ability to access tx while individual’s capacity is unclear Early tx may prevent involuntary tx Allow means to express preferences for tx or refusal of tx Provide standards to be respected by others pursuant to other provisions of law

Washington Casualty Co.4 Mental Health Advanced Directive “Written document in which the principal makes a declaration of instructions or preferences or appoints an agent to make decisions on behalf of the principal regarding the principal’s mental health treatment, or both, and that is consistent with the provisions of this chapter”

Washington Casualty Co.5 Creation of Directive Inability to honor one or more provisions of directive does not affect validity of remaining provisions May include many provisions, e.g. Preferences for tx Consent or refusal of tx Adm to & retention for 14 day stay Description of situations precipitating crisis Alternative treatment Appointment of agent to make tx decisions Nomination of guardian for court consideration

Washington Casualty Co.6 Contents of Directive In writing Language of intent to create directive Dated & signed by principal Designate when principal can revoke Two witnesses in writing who Personally knows principal Present when signed Principal not incapacitated or under duress

Washington Casualty Co.7 Witness Qualifications Witnesses may not be: Person designated to make health care decisions Directly involved with care at time directive is executed Owner, operator, employee or relative of owner in which principal is patient Person related by blood, marriage or adoption or if dating Incapacitated themselves One who would benefit financially

Washington Casualty Co.8 Contents of Directive cont. If includes appointment of agent, must include specific language per statute Valid upon execution, but all or part may take effect at later time as designated Revocation guidelines– In writing, effective upon receipt If incapacitated, must specify ability to revoke in directive Copy to agent & everyone given copy of directive Make part of medical record

Washington Casualty Co.9 Revocation of Directive In whole or in part as designated Expressly or to the extent of inconsistency by a subsequent directive Expire under own terms unless principal incapacitated at time of expiration then expires after no longer incapacitated or revoked If principal consents or refuses tx which differs from directive, that constitutes a waiver of that provision May be superseded by court order

Washington Casualty Co.10 Appointment of Agent RCW & apply unless otherwise specified Notified in writing by principal Agent decision-making In accordance with directive If not known, in principal’s best interest Agent able to receive, review & authorize use & disclosure of PHI Agent may resign by written notice to principal & treating providers

Washington Casualty Co.11 Determination of Incapacity Court order as requested by principal or principal’s agent OR One mental health professional & one health care provider* OR Two health care providers* * one provider must be a psychiatrist, psychologist or psychiatric ARNP

Washington Casualty Co.12 Determination of Incapacity cont. Health care provider advises principal: Request for capacity determination is being sought Principal may request that determination be made by a court Must be personally examined Court order: Mental health professional must testify Principal must be given opportunity to appear

Washington Casualty Co.13 Determination of Incapacity cont. Initial determination must be completed within 48 hours Principal cannot be treated during this time unless: Principal consents Treatment authorized by law

Washington Casualty Co.14 Inpatient Treatment If incapacitated & admitted pursuant to directive, capacity must be reevaluated within 72 hours or with change in condition, whichever comes first After 72 hours, capacity reevaluated with change in condition that indicates capacity regained Principal or agent request for re-determination to be done within 72 hours (if outpatient, within 5 days) If determination not completed by timeline, consider principal as having capacity

Washington Casualty Co.15 Provider Responsibilities Make directive a part of principal’s medical record Ask if principal is subject to any court orders affecting directive Act in accordance with directive provisions to fullest extent possible* *Exceptions specified on following two slides

Washington Casualty Co.16 Non-adherence to Directive At Time of Receipt At the time of receiving a directive, if unable or unwilling to comply with any part(s) of directive for any reason, notify principal (and agent) and document reason in medical record

Washington Casualty Co.17 Non-adherence to Directive When Acting Under Directive If acting under authority of directive & unable to comply with any part(s) of directive because: It violates standard of care in RCW Requested tx is not available Compliance would violate applicable law It is an emergent situation & compliance would endanger any person’s life or health Principal is involuntarily detained under state law & inconsistent with purpose of commitment or with order of court Notify principal (and agent) & document reason in medical record

Washington Casualty Co.18 What If? Case Scenarios A principal chose not to revoke directive during incapacity & consented to inpt tx but now refuses admission? MD in conjunction with another provider evaluates to determine if incapacitated & Obtains consent of agent if designated & Documents need for inpt tx and that it cannot be done in less restrictive setting & Documents findings & recs for tx or evaluation Principal may seek injunctive relief for release from facility

Washington Casualty Co.19 What If? Case Scenarios Principal committed or detained under involuntary treatment? Sections of directive in conflict with court order are invalid during commitment Principal incarcerated or in correctional facility? Sections of directive in conflict with reasonable prison objectives/hearing are invalid during incarceration & tx may be given despite directive provisions or principal refusal upon certain circumstances

Washington Casualty Co.20 What If? Case Scenarios Provider unable (related to statute provisions) or unwilling to comply with a section(s) of directive? Notify principal (agent if applicable) & document reason Follow other parts of directive Principal has consented to electroconvulsive therapy? Document therapy & reason for use

Washington Casualty Co.21 Examples of Interpretive Provisions More than one valid directive? Follow most recently created one unless provided otherwise in either document More than one agent appointed? Follow RCW Applies to inpatient mental health treatment admission of long-term care residents

Washington Casualty Co.22 Examples of Interpretive Provisions cont. Valid directives executed before effective date of statute? Valid Directive validly executed in another jurisdiction? Valid to extent allowed by WA law

Washington Casualty Co.23 The Written Directive Substantially the form specified in the statute … Statement to create Effective Duration Revocation Preferences Consent to inpt tx Visitors Refusal of tx Appointment of agent Notification of others & care of personal matters

Washington Casualty Co.24 Changes to Existing Laws RCW When more than one agent appointed, use most recently appointed agent unless provided otherwise Employees of long term care cannot act as attorney in fact Agent can’t be paid

Washington Casualty Co.25 Changes to Existing Laws RCW 7.70 Consent to treatment or admission contained in a validly executed mental health advanced directive constitutes informed consent RCW 9A.60 Fraudulent creation or revocation of directive is a class C felony

Washington Casualty Co.26 Implementation Checklist Effective 7/27/03 Become familiar with requirements of law Develop and/or modify facility-wide policies & procedures Educate mental health patients Monitor utilization and issues associated with use of directive