Section 2: Mental Health Advance Directives

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In 2003, the Washington State Legislature enacted a law, codified as RCW 71.32, that provides for advance directives for mental health treatment. The law allows a person with capacity to state mental health treatment preferences in a legal document that will govern during periods of incapacity.(1) Mental health advance directives may be relevant to any time in an adult’s life – during cyclical loss of capacity or as part of the aging and end-of-life process.(2) (See Section Three for the full text of RCW 71.32.)

In addition to an overview of the Mental Health Advance Directive Law, this section includes:

A validly executed mental health advance directive is generally binding and must be respected by agents, guardians, surrogate decision-makers, health care providers, professional persons, and health care facilities.(3) Health care facilities include hospitals, institutions, state hospitals, nursing homes, and clinics that are part of a community mental health service delivery system.(4) Only these facilities are required to comply with directives, but clinicians who fit the statutory categories are required to comply no matter what the setting. The statute covers: health care providers (osteopathic physicians or osteopathic physician’s assistants, physician or physician’s assistant, and advance registered nurse practitioners), mental health professionals (psychiatrists, psychologists, psychiatric nurses, and social workers), and professional persons (mental health professionals and any personnel added by the secretary of DSHS).(5)

To be valid, a mental health advance directive must:

  • be in writing;
  • include language indicating a clear intent to create a directive;
  • be dated and signed by the patient, or be dated and signed in the patient’s presence at his or her direction;
  • state whether the directive may or may not be revoked during a period of incapacity;
  • be witnessed in writing by at least two adult witnesses;(6) and
  • conform substantially to the statutory format.(7)

The principal – the person completing the mental health advance directive – may utilize a directive to: consent to specific treatment, refuse specific treatment, consent to short-term inpatient treatment (up to 14 days), appoint an agent, suggest alternative treatments, and offer insight to health care providers about common triggers and reactions to treatment.

Appointment of an agent does not change the restrictions placed on guardians to consent to treatments(8) – but the law allows agents to consent if they are following a directive. The directive must include an expiration date, but if a principal is incapacitated when the directive is meant to expire, the directive remains effective until the principal regains capacity.(9) A sample advance directive is included in this section for reference.

The principal must indicate in the directive whether he or she may revoke during periods of incapacity or wishes to be unable to revoke while incapacitated.(10) By choosing to make a directive irrevocable while incapacitated, a principal effectively waives the right to refuse treatment consented to in the directive. If the principal allows for revocation while incapacitated, he or she may change the directive at any point, including any and all consent to admission to a treatment facility.

The principal may include in a mental health advance directive any provision relating to mental health treatment, the care of the principal, or the care of the principal’s personal affairs. Health care facilities and providers are under no obligation to follow the portions of a directive that deal with personal affairs.

As discussed in Section One, the federal Patient Self-Determination Act (PSDA) requires health care facilities to educate patients and the community about advance directives, maintain policies and procedures on advance directives, and inquire on admission whether the patient has made an advance directive. Mental health advance directives are included under the PSDA’s requirements. (Refer to Section One for further discussion of hospital obligations under the PSDA.) In addition to the PSDA requirements, providers licensed or certified by DSHS must also advise clients of their rights to make physical and mental health advance directives.(11)

The existence of a directive may not be used as a criterion for insurance, a condition for receiving mental or physical health care services, or as a condition of admission to or discharge from a health care facility or long-term care facility. Health care facilities must inform and educate patients about directives, but may not make their presence or absence mandatory.

Washington’s Mental Health Advance Directive Law imposes timelines and duties on facilities and providers in order to safeguard patients’ rights. Many of these obligations center on determinations of capacity. For the purposes of mental health advance directives, “capacity” is essentially the ability to give informed consent.(12) Informed consent is defined in the Mental Health Advance Directive law as consent that is given after a person:

  1. is provided with a description of the nature, character, and anticipated results of proposed treatment and alternatives and the recognized serious possible risks, complications, and anticipated benefits in the treatment and alternatives, including nontreatment, in language that the person can reasonably be expected to understand; or
  2. elects not to be given the information included in (a).(13)

A principal is incapacitated if he or she is “unable to understand the nature, character, and anticipated results of proposed treatment or alternatives; understand the recognized serious possible risks, complications, and anticipated benefits in treatment; or communicate his or her understanding or treatment decisions.”(14)

The statutory mental health advance directive form clearly states that the principal, in signing the form, intends the directive to give informed consent to the treatment and admission specified. Mental health advance directives are a legal method of informed consent. Even if the principal is found to be incapacitated, providers may use a directive as informed consent for the items documented in the directive. However, the mere existence of a mental health advance directive does not mean the person is presently incapable of providing informed consent.

Most directives do not become operational until the principal is found incapacitated. As capacity is presumed under the statute, capacity must be disproved.(15) Capacity determinations must be made as prescribed by law. Capacity must be initially assessed and regularly reevaluated according to the timeframes in the statute, which allow no flexibility or deviation. A principal, agent, provider, or professional person may seek a determination as to whether the principal is incapacitated or has regained capacity. If a determination of capacity is not made within the timeframes outlined below, the principal is judged to have capacity and must be treated accordingly.(16)

To ensure compliance with the Mental Health Advance Directive law, health care facilities must:

  • make an initial determination of capacity within 48 hours of an initial request;
  • not treat the principal until the initial determination is made – unless the principal consents or treatment is authorized by state or federal law. If the patient is already being treated according to a directive, the treatment may continue while a determination is pending;
  • ensure that a capacity determination is conducted by two health care providers, or by one mental health provider and one health care provider.(17) At least one person making the determination must be a psychiatrist, psychologist, or psychiatric nurse practitioner.(18) The principal must be personally examined by at least one mental health professional or health care provider prior to the capacity determination;
  • promptly advise the principal that a capacity determination is sought, if someone other than the principal or his or her agent request it;
  • advise the principal that he or she may demand that the capacity determination be made by a court. If the principal requests a court determination, the facility must make reasonable efforts to notify the person legally authorized to make decisions for the principal. If the principal or interested party requests a court determination, at least one mental health professional familiar with the principal must testify and the principal must have an opportunity to appear in court (unless there is good cause that the principal not be in court);
  • in an inpatient setting, reevaluate capacity within 72 hours of admission or when a change in the principal’s condition indicates a regaining of capacity – whichever occurs first;
  • after 72 hours of inpatient treatment, reevaluate the principal when his or her condition indicates capacity may be regained;
  • in an outpatient setting, reevaluate capacity within 5 days of a request for a determination; and
  • reevaluate capacity within 72 hours if the principal requests a redetermination.(19)

There is specific statutory instruction for a person who is presently refusing admission, but consented at an earlier time via an advance directive and made the directive irrevocable.(20) For a facility to admit the principal based on the directive the following must occur:

  • a physician must evaluate the principal’s mental condition and, along with another provider or mental health professional, determine that the principal is incapacitated;
  • the principal’s agent (if one exists) must give informed consent;
  • the physician must document the principal’s need for inpatient evaluation or treatment that is not available in a less restrictive setting; and
  • the physician documents a summary of findings and recommendations in the medical record. If the physician is not a psychiatrist, the principal must be assessed by a mental health professional within 24 hours of admission.

At the end of the period of voluntary commitment consented to in a directive, but no longer than 14 days after admission, a patient who has not regained capacity or has regained capacity, but refuses to remain, must be discharged. The principal may not be kept longer than 14 days and must be released during reasonable, daylight hours. The exception to this timeframe is involuntary detention, which may supersede the period of consent in a directive.(21) Under the mental health advance directive statute, a principal who takes action demonstrating a desire to be discharged and makes statements to that effect, must be discharged. If a patient presents a likelihood of serious harm or is gravely disabled, the patient may be held for evaluation under the state involuntary treatment law.

The principal may request a redetermination of capacity, request that any determination be made by a court, and/or bring action in court to contest the validity of his or her directive. Directives also do not create an obligation for a provider to pay the costs associated with the treatment requested.(22) There is no mention in the statute regarding the use of public funds for capacity determinations or redeterminations. Facilities and providers are not obligated to assume these costs – directives do not create an entitlement to care. Coverage by private or governmental payers turns on whether determinations are medically necessary. Determinations on admission or upon a change in condition may be covered, but determinations requested by a principal or agent may not be deemed medically necessary.

RCW 71.32 explicitly states that mental health advance directives do not create an entitlement to mental health or medical treatment, do not supersede a determination of medical necessity, and do not obligate provision of treatment that is unavailable.(23) Additionally, a directive does not create a doctor-patient relationship if one does not previously exist. Placement and treatment must be based on the clinical needs of the patient and the interests of the facility at large. Thus, while a principal’s request for a specific physician should be honored if possible, it may be denied if the physician’s patient load, specialty, ward assignment, or other factors make them unavailable. Similarly, providers should follow standard procedures whenever the principal requests care that is not covered by insurance or when the principal is uninsured. Facilities must initiate policies and procedures that detail how to evaluate and act upon directives in ways that are manageable by the facility.

Portions of the directive regarding nontreatment personal care of the principal or principal’s personal affairs do not compel action by a provider. Portions of the form detailing childcare, notification, or financial affairs are not the responsibility of providers or facilities.

When a provider is presented with a mental health advance directive, he or she is deemed to have actual knowledge of its contents and is obligated to act upon the directive and make it a part of the patient’s record. However, there are instances in which facilities and providers may refuse to follow a patient’s mental health advance directive. The exceptions to this duty include:

  • if the provider is unable or unwilling to comply with any portion of a directive, the provider may object upon initial receipt of the directive. Providers may object to any part or parts of the directive for any reason, but must promptly notify the principal and his or her agent and document the reasons for refusal in the principal’s medical record. Portions of the directive that are not objectionable must be followed;(24)
  • if the principal is subject to a court order, his or her mental health advance directive may be superseded or revoked; or
  • in the event of involuntary commitment, portions of a mental health advance directive that are inconsistent with the purpose of commitment are not binding, but are considered advisory.

While acting under authority of a directive, a provider or facility must act in accordance with the directive to the fullest extent possible with four exceptions. Facilities and/or providers may decline to follow a part or parts of a mental health advance directive if:

  • compliance with a portion of the directive would violate the accepted standard of care;
  • the requested treatment is not available;
  • compliance would violate the law; or
  • the situation constitutes an emergency and compliance would endanger any person’s life or health.(25)

If any of these exceptions occur, the principal and agent must be notified and the reasoning must be noted in the medical record. As with an initial objection, all remaining portions of the directive must be followed.

Providers are not subject to civil liability or sanctions when a directive is not followed or treatment is not provided due to any of the above reasons. Immunity is also conveyed for treatment, in good faith and without negligence, in compliance with a directive, in absence of actual knowledge of the existence of a directive, and in compliance with a directive that the provider does not know has been revoked. Additionally, a determination of capacity, treatment based on such a determination, and treatment based on a presumably legal but actually invalid directive also convey immunity.

As noted in previous sections, Washington law provides both civil and criminal immunity, as well as immunity from professional sanctions, for providers who act in good faith, and without negligence, in compliance with an advance directive under the Natural Death Act. The Mental Health Advance Directive Law provides immunity only from civil liability and professional sanctions.(26) This disparity and the lack of criminal immunity for mental health advance directives are not explained in the statute.

Special concerns for long-term care facilities

Long-term care facilities are specifically addressed in RCW 71.32.250. These facilities include nursing homes, nursing facilities, any swing bed in an acute care facility, family or group homes, and facilities specializing in alcoholism, mental retardation, or mental, emotional, or behavioral problems.(27) These facilities must readmit residents who leave the facility for inpatient mental health treatment based on a mental health advance directive if the resident’s physical condition is the same as it was during the original admission to the facility.

The facility must readmit the resident:

  • so long as the staff determines that he or she is no longer in need of inpatient mental health treatment; or
  • the consent to inpatient treatment in the directive has expired.

If the long-term care facility no longer has bed space for the principal at the time he or she is discharged, the treating facility may consult with the resident and agent and discharge the resident to another facility. The discharge must be accompanied by appropriate discharge plans. The statute does not restrict the resident’s right to early release from inpatient mental health treatment and does not restrict legal transfers or discharges.

When the statute was passed in 2003, the Joint Legislative Audit and Review Committee was instructed to evaluate the operation and impact of this portion of the statute and report back by December 2004. The committee completed its report but found very little to discuss. Though state-funded facilities were informing patients of their rights to have mental health advance directives, few, if any, nursing home residents completed directives. The committee noted that there remained the possibility that directives might be used to remove problematic patients and recommended that a follow up study be conducted in two to three years. No additional study appears to have been conducted.

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  1. Under the Mental Health Advance Directive Law, an adult is presumed to have capacity so long as he or she has not been found incapacitated under the mental health advance directive procedures or under the Washington state guardianship statute. RCW 71.32.020(3) and RCW 71.32.040.
  2. Mental health advance directives do not replace or alter the Involuntary Treatment Act – involuntary civil commitment is a separate process with different standards and decision-making protocol. Mental health advance directives cannot be used to consent to civil commitment.
  3. RCW 71.32.010.
  4. RCW 71.32.020(5).
  5. RCW 71.32.020(6), (12), & (14).
  6. See RCW 71.32.090 for detailed information on who may not serve as a witness.
  7. RCW 71.32.060(1).
  8. RCW 11.92.043(5) restricts the authority of guardians to consent to convulsion inducing therapy, surgery solely for purpose of psychosurgery, or mental health treatment that restricts physical freedom of movement.
  9. RCW 71.32.080(6).
  10. RCW 71.32.060(1)(d).
  11. WAC 388-865-0410.
  12. Informed consent under the Mental Health Advance Directive law closely follows the definitions provided in RCW 7.70.050.
  13. RCW 71.32.020(8).
  14. RCW 71.32.020(7).
  15. RCW 71.32.040.
  16. RCW 71.32.130(4).
  17. RCW 71.32.110(2)(a).
  18. RCW 71.32.110(2)(b).
  19. These requirements are listed in RCW 71.32.110 and RCW 71.32.130.
  20. RCW 71.32.140.
  21. RCW 71.32.140(6)(b), see also RCW 71.05.050 regarding detention and evaluation for civil commitment.
  22. RCW 71.32.070(2). Also, unless otherwise agreed, agents have no obligation to pay for the principal’s treatment.
  23. RCW 71.32.070.
  24. Recall that under the PSDA, facilities must provide patients with notice if there are any institution-wide or provider specific objections to following an advance directive. See Section One for more information.
  25. RCW 71.32.150(2).
  26. RCW 71.32.170.
  27. RCW 71.32.020(9). Long-term care facilities are defined in RCW 43.190.020.

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