The information below was prepared by the Disabilities Law Project. Additional information about Mental Health Advance Directives can be found here: https://www.mhapa.org/programs/mhad/
Frequently Asked Questions about Mental Health Advance Directives for Providers
Q. What is a Mental Health Advance Directive?
A. A Mental Health Advanced Directive is a document that allows a person to make preferences regarding mental health treatment known in the event that the person is incapacitated by his/her mental illness. In effect, the person is giving or withholding consent to treatment in advance of when treatment is needed. This allows a person to make more informed decisions and to communicate his/her wishes more clearly. A new law was passed in Pennsylvania, effective January 28, 2005, that makes it possible for a person to make and enforce a mental health advance directive. Pennsylvania law allows for three types of mental health care advance directive: a declaration, a power of attorney, or a combination of both.
Q. What are my responsibilities as a provider?
A. You must do the following things:
- Inquire whether or not a person has a mental health care advance directive.
- Inform people who are being discharged from treatment about mental health care advance directives as part of discharge planning.
- You may not choose whether to accept someone as a patient based solely on the existence or absence of a mental health care advance directive.
- Upon notification of the existence of an advance directive, you must place a copy in the person’s mental health care record.
- You must make any revocation or amendments part of the person’s mental health care record.
- You must comply with the instructions unless the instructions are contrary to accepted clinical practice and medical standards or because medical treatment is unavailable, or if the policies of the provider preclude compliance.
- If you are the mental health care provider that makes a determination regarding capacity to mental health care decisions, you must make that determination part of the person’s mental health record.
Q. What if I can’t comply with the instructions in the mental health care advance directive?
A. As soon as the possibility of non-compliance becomes apparent, you must inform the person, agent, guardian, and/or any other legal representative. It may be possible to discuss and resolve the issue with the person or agent. If compliance is still not possible, you must make every reasonable effort to transfer the person to another mental health care provider who will comply with the instructions. While the transfer is pending, you must treat the patient in a way consistent with his/her advance directive. If all efforts to transfer fail, you may discharge the patient.
Remember that just because consent is provided in advance to a particular medication or treatment, that you will not prescribe that treatment or drug unless it is appropriate treatment at the time of the person’s illness. Consent only means that consent is given to treatment if it is a suitable choice at that time within the standards of medical care. You will also have to consider if a particular treatment option is covered by the person’s insurance. If, for example, the HMO does not cover a certain drug on its formulary, you may prescribe a drug that is similar, but is on the HMO formulary (unless the person has specifically withheld consent to that drug).
Q. What if compliance with the instructions could cause irreparable harm or death?
A. You may file a petition with the court seeking a determination that following the instructions may cause irreparable harm or death. The court may invalidate some or all of the provisions of the mental health advance directive and issue an appropriate order within 72 hours from the filing of the petition. Even if the court invalidates some of the provisions of the directive, the remaining provisions will remain in effect.
Q. What if there is a conflict with instructions in another power of attorney or declaration?
A. If there is a conflict, the provisions of the document latest in date of execution must be followed.
Q. How does a Mental Health Advance Directive affect commitment under the Mental health Procedures Act?
A. The voluntary and involuntary commitment provisions of the Mental Health Procedures Act are not affected by having a mental health care advance directive. What is affected is the provision of treatment after a person is committed.
Disability Rights Network of Pennsylvania
NAMI Southwestern Pennsylvania