Sonoma County, California 94952, United States
Making a Plan: Thinking Ahead
My Way . My Choice . My Plan
Making A Plan (MAP) – Thinking Ahead helps you think about what care you want and do not want if you cannot speak for yourself. It empowers you to have your wishes known and honored if you are unable to guide your own care because of serious illness including a mental health crisis, frailty or the ending of life. It includes a Workbook, a Forms booklet, and the companion piece titled: Mental Health Supportive Care Plan. Together these materials comprise the “Making a Plan Toolkit.” In addition to helping you express health care wishes, the Making a Plan Toolkit can help clarify what to do with your important possessions if seriously ill or at the ending of life.
Caring Community: Sonoma County, California https://caringcommunity.org/
Advanced Health Care Directive
An Advance Health Care Directive is a legally binding form that lets you exercise your right to give instructions about your own health care and/or to name someone else to make health care decisions for you in the event you are unable to speak for yourself.
National Resource Center
Psychiatric Advanced Care Directives (PAD)
About PADs
- A psychiatric advance directive (PAD) is a legal document that documents a person’s preferences for future mental health treatment, and allows appointment of a health proxy to interpret those preferences during a crisis.
- PADs may be drafted when a person is well enough to consider preferences for future mental health treatment.
- PADs are used when a person becomes unable to make decisions during a mental health crisis.
California Q and A
Ten commonly asked questions about PAD’s for California
Please note: the following 10 FAQs are designed to provide a quick and accessible guide to what your state’s statutes say – or do not say – about PADs. The FAQs do not attempt to provide a complete picture of the law in your state, nor can they take the place of legal advice. The answers were accurate when written in October 2006.
1. Can I write a legally-binding psychiatric advance directive (PAD)?
Yes. California’s Health Care Decisions Law allows you to appoint an agent to make decisions about your treatment if you become incompetent to make decisions; write instructions about how you would like your health care to proceed; or both. This law covers all types of health care, including psychiatric treatment. Disability Rights California has published a helpful guide, which includes the latest version of the statutory Advance Health Care Directive (AHCD) form. This form is not mandatory but is highly recommended. Disability Rights California also offers a detailed Trainer’s Manual on the subject of AHCDs. The state of California maintains a central registry of Advance Directives, which you may wish to use but is not mandatory. Click here for more information on that program.
2. Can I write advance instructions regarding psychiatric medications and/or hospitalization?
Yes. The statute allows you to set out your instructions on any aspect of your health care treatment, which could include advance decisions about psychiatric medications and/or hospitalization. The statutory AHCD form gives a variety of prompts for you to state your instructions in the event of a crisis (for example, you could state that you would prefer to remain in a quiet room). If you wish, you may make advance decisions to refuse medications and/ or hospitalization. If you do this, however, note that that state law may require your hospitalization in an emergency, even if you have declined it in your instructions.
3. Does anyone have to approve my advance instructions at the time I make them?
No. However, the document containing your advanced instructions must be notarized, or signed by two witnesses. Neither witness can be an employee of your health care provider, and one must be a non-relative. If you are a patient in a “skilled nursing facility”, meaning a facility providing skilled nursing care on a long term basis, your form must additionally be signed by a Patient Advocate or Ombudsman.
4. Can I appoint an agent to make mental health decisions for me if I become incompetent?
Yes, in one of two ways:
(1) You may appoint an agent (called a “surrogate” in California), using your AHCD. Your agent must be someone other than an employee of your health care or community care provider, unless he/she is also related to you. If you have a conservator under the Lanterman-Petris-Short Act, you must seek the authorization of an attorney before appointing an agent.
(2) If you are already being treated in a health care facility, you may designate a surrogate to act during your current stay, for a maximum of 60 days in total. To do this, you need only inform your health care provider. The person nominated in this way has priority over any agent you already nominated in an AHCD, but only during that particular period of treatment, or 60 day period in total.
5. If I become incompetent, can my agent make decisions for me about medications, and/or hospitalization?
Yes, with some exceptions. In general, once you are determined to be incompetent (see below) your agent may make decisions about anything that you could decide on if you were competent. However, your agent cannot consent on your behalf to your commitment to, or placement in, a mental health treatment facility; nor can he/she consent on your behalf to psychosurgery, electroconvulsive treatment (ECT), sterilization or abortion. If you wish, you may use your AHCD to limit your agent’s authority to a certain type, or types, of decision.
6. Does my agent have to make decisions as he/she thinks I would make them (known as “substituted judgment”), or does he/she have to make them in my “best interests”?
Your agent must exercise substituted judgment to the extent that he or she can do so, based on your advance instructions and/or on your preferences as known by the agent. If it is not possible to make a decision in that way, your agent must make the decision in your best interests.
7. Is there any rule that says that I can only make advanced instructions, only appoint an agent, or that I must do both?
No. You may do one, the other, or both.
8. Before following my PAD, would my mental health care providers need a court to determine I am not competent to make a certain decision?
No. The California statute allows you to choose when your AHCD must be followed. Your AHCD will be followed when your primary physician determines that you do not understand the benefits and/or risks of a particular mental heath care decision. Alternatively, you may state on your form that your AHCD should be followed at all times, whether or not you are competent to make decisions.
9. Does the statute say anything about when my mental health providers may decline to follow my PAD?
Yes. Your providers must decline to follow your AHCD if they would violate professional standards in doing so, or for “reasons of conscience”. In these situations, your provider must assist in trying to find another provider who will follow your AHCD. Additionally, your providers could decline to follow your AHCD if you became subject to compulsory treatment or hospitalization under California law.
10. How long does my PAD remain valid?
Your AHCD is valid as long as you do not revoke it. If you wish, however, you may specify an expiry date for your AHCD.
Federal Patient Self Determination Act (1990)
Additional Information
The Federal Patient Self Determination Act (enacted in 1990) addresses the rights of health (including mental health) care users to stipulate in advance how they would like to be treated by health care providers when they are incapacitated. These wishes can be articulated by consumers in a specific document (an advance directive) or by appointing someone as a health care agent to speak for them.
The intent of the law is to provide an opportunity for adults to express their desires about medical treatment in advance, and to educate the entire population on advance directives. The law was enacted with the intent to offset a perceived imbalance between health care consumers and providers. The federal law does not grant consumers new rights; those specific rights are spelled out in state law. The federal law requires hospitals and other providers (including psychiatric hospitals and other mental health providers) and health plans to maintain written policies and procedures with respect to advance directives.
Mental Health America Policy Statement on PAD
Psychiatric Advanced Directives
https://mhanational.org/issues/position-statement-23-psychiatric-advance-directives
Policy
Psychiatric advance directives permit people to determine what treatment they will receive if and when they lose the capacity to make treatment decisions. Mental Health America supports and promotes the use of psychiatric advance directives as a tool for the expression of an individual’s free will and self-determination in coping with mental health and substance use conditions. State laws regulate advance directives, and compliance with these laws is strongly advised. See, generally, National Resource Center on Psychiatric Advance Directives, http://www.nrc-pad.org/ The Bazelon Center for Mental Health Law provides a template for decision making in constructing a psychiatric advance directive at http://www.bazelon.org/LinkClick.aspx?fileticket=Jnjz10lQFPw%3d&tabid=226.
Background
A psychiatric advance directive is a written statement of a person’s treatment preferences and other wishes and instructions. A psychiatric advance directive or a power of attorney (sometimes called a durable power of attorney or a power of attorney for health care) can also be used to assign decision-making authority to another person who can act on that person’s behalf.
Psychiatric advance directives are based upon several important considerations:
- Most people with even the most serious mental health conditions are capable of making important decisions about their mental health treatment most of the time.
- Some serious mental health conditions, such as schizophrenia and bi-polar disorder, are relapsing and remitting in nature—serious symptoms may only appear occasionally. Sometimes the serious symptoms of these conditions may, for a period of time, interfere with the ability of an individual to make or communicate decisions which are consistent with the wishes of that same individual before or after those periods. For example, people who have had symptoms before are apt to know, better than anyone else, whether psychotropic medications have been effective in treating their symptoms and, if so which medications, and they will know the nature and seriousness of any side effects and which medications they would refuse if they were able to do so. Alternatively, they may know that other treatments have been more effective than medications or have caused fewer side effects.
- A psychiatric advance directive permits someone who has a serious mental illness which is not interfering with her ability to make decisions to express in a legally binding manner how she or he wishes to be treated if and when that individual is later unable to make decisions.
Psychiatric advance directives offer several key benefits. Correctly implemented and executed, they can:
- Promote individual autonomy, empowerment and recovery from mental illness;
- Enhance communication between individuals and their families, friends, healthcare providers, and other professionals;
- Protect people from being subjected to ineffective, unwanted, and possibly harmful treatments or actions; and
- Help in preventing crises and the resulting use of involuntary treatment or dangerous interventions such as restraint or seclusion.
People considering the creation of a psychiatric advance directive need to be fully informed about the benefits and limitations of these legal instruments. Anyone creating an advance directive should be able to do so without coercion, with choices regarding implementation and revocability, and with full knowledge and understanding of the implications of his or her decisions. It is particularly important that no treatment, service or government benefit be conditioned on the willingness of an individual to create an advance directive or on the content of an advance directive.
The primary goal and focus of mental health services should be recovery.1 The recovery model recognizes that persons with mental health conditions should be able to live a meaningful, self-directed life in the community. It also recognizes that persons with mental health conditions are able to set their own goals and define what recovery means to them. Psychiatric advance directives can be an important tool in enabling persons with mental health conditions to achieve their recovery goals.
Psychiatric advance directives are an underutilized tool for empowering individuals and offer significant potential for preventing or mitigating crisis situations. While every state has enacted legislation authorizing some form of advance directive for health care, many of these general advance directive laws do not provide adequately for the unique problems relating to the treatment of mental illnesses. Specifically, many states do not allow people to choose whether and under what circumstances they wish their advance directive to be revocable. This choice can be very important in protecting the rights and autonomy of persons with mental health conditions. Barriers to the implementation of psychiatric advance directives, such as state laws that add unnecessary procedural or legal burdens, should be eliminated. Thus, it is a priority for Mental Health America to reform state laws that impede ready access to psychiatric advance directives or reliable compliance with them.
Call To Action
- States should amend their existing advance directive laws for healthcare to permit individuals to include specific provisions for mental health treatment. This would eliminate the need to create two advance directives in those states which already have a special psychiatric advance directive and a general one for other healthcare. Alternatively, in those states without any special provisions for mental health care, existing legislation should be amended to provide for specialized psychiatric advance directives. Such legislation should be designed to enable people to choose the most important elements of the directive for them, including: what types of treatment will be covered, what events or determinations will trigger implementation, and whether or not and under what circumstances the directive will be revocable. Psychiatric advance directives should also permit a person to designate individuals to be contacts in an emergency and those individuals with whom information concerning that person’s treatment may be shared.
- Such legislation should also be based upon the recognition that, while the treatments authorized can be highly beneficial, even life-saving, for the individual, many treatments have serious side effects. Therefore, the decision to agree or not to agree in advance to such treatments or to authorize someone else to do so on one’s behalf is a serious one which should be accompanied by appropriate safeguards to insure that the decision is fully informed and free from coercion.
- Such safeguards should include the requirement that any advance directive be witnessed by at least one person who is independent of any entity providing treatment to the person.
- It is particularly important that a person who is considering designating someone to act on her/his behalf choose someone who understands that individual’s values and preferences and can be relied upon to faithfully carry out her/his wishes.
- Individuals, family members, friends, advocates, healthcare providers and other professionals should meet in community dialogues and work together to promote education, training and research towards the successful creation and implementation of psychiatric advance directive programs.
- State laws should require that mental health providers comply with valid psychiatric advance directives unless to do so would result in serious and imminent physical harm to the individual in treatment or others.2
- Provider agencies and inpatient and outpatient facilities, including hospitals and emergency departments, should be educated about and should be encouraged to ask people receiving services/treatment whether they have an advance directive.
- The presence or absence of an advance directive should be added to an individual's health records, and provider policies should encourage asking at regular intervals if an individual would like to create or update an advance directive.
Effective Period
This policy was Approved by the Mental Health America Board of Directors on December 5, 2015. It will remain in effect for five (5) Years and is reviewed as required by the Mental Health America Public Policy Committee.
Expiration:December 31, 2020
1.See MHA Position Statement 11: In Support of Recovery-Based Systems Transformation, http://www.mentalhealthamerica.net/positions/recovery-systems
2.Mental Health America strongly agrees with the decision in Hargrave v. Vermont, 340 F.3d 27 (2nd Cir. 2003), that even a person who is involuntarily committed to a psychiatric hospital has the right to have the hospital comply with her/his advance directive. State laws should expressly recognize this right.
RIGHTS AND PRIVACY ISSUES
- View All Rights and Privacy Issues
- Seclusion and Restraints
- Standards For Management of and Access to Consumer Informationion
- Participant Protections in Psychiatric Research
- Community Inclusion after Olmstead
- Psychiatric Advance Directives
- Involuntary Mental Health Treatment
- Rights of People with Mental Health and Substance Use Conditions
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Advance Directives for Behavioral Health
SAMHSA
Learn about advance directives for behavioral health and what certified community behavioral health clinics (CCBHCs) need to know when caring for patients.
What is an Advance Directive?
An advance directive outlines a person’s wishes in the event that he or she is incapacitated or unable to express wishes for health care and treatments. Under federal law, any facility receiving Medicare or Medicaid reimbursements is required to use advance directives. Individuals with a physical and behavioral health illness are covered under this mandate.
Behavioral Health Advance Directive
In a behavioral health advance directive, people are able to express their preferences on where to receive care and what treatments they are willing to undergo. They are also able to identify an agent or representative who is trusted and legally empowered to make healthcare decisions on their behalf. These decisions may include the use of all or certain medications, preferred facilities, and listings of visitors allowed in facility-based care. Advance directive laws may vary across states. Therefore, it is important to be sure that any advance directive form meets the requirements of a given state.
Common Components of a Behavioral Health Advance Directive
- A statement of one’s intent in creating an advance directive for behavioral healthcare decision-making
- The designation of another person to make decisions for an individual if he or she is determined to be legally incompetent to make choices. Generally, this designation also includes provisions for who should be appointed as guardian if a court decides to name one.
- Specific instructions about preferences for hospitalization and alternatives to hospitalization, medications, electroconvulsive therapy, and emergency interventions, including seclusion, restraint, medication, and participation in experimental studies or drug trials
- Instructions about who should be notified immediately if and when the person is admitted to a psychiatric facility. Instructions should also include who should be prohibited from visiting and who should have temporary custody of minor children or pets.
- Personal rights to suspend or terminate an advance directive while incapacitated, if allowed by the law in the state
- A signature page with two witnesses and a notary who sign the advance directive
Related Resources
- A Practical Guide to Psychiatric Advanced Directives https://www.samhsa.gov/sites/default/files/a_practical_guide_to_psychiatric_advance_directives.pdf ( 45 pages)
- Advance Directives: Information on Federal Oversight, Provider Implementation, and Prevalence from the Government Accountability Office (GAO) — 2015
- Decision Aids for Advance Care Planning from the Agency for Healthcare Research and Quality (AHRQ) — 2014
- National Resource Center on Psychiatric Advance Directives
- Sample Advance Directive Form from the American Academy of Family Physicians (AAFP) — 1999
Requirements From the Criteria
The Department of Health and Human Services (HHS) has developed criteria for CCBHC certification. Access the complete CCBHC certification criteria – 2016 (PDF | 789 KB).
The criteria include the following requirements related to advance directives:
- 2.c.3. Individuals who are served by the CCBHCs are required to be educated about Psychiatric Advance Directives at the time of the initial evaluation.
- 3.a.4. Care coordination activities are carried out in keeping with the consumer’s preferences and needs for care and, to the extent possible and in accordance with the consumer’s expressed preferences, with the consumer’s family or caregiver and other supports identified by the consumer. So as to ascertain in advance the consumer’s preferences in the event of psychiatric or substance use crisis, CCBHCs develop a crisis plan with each consumer. Examples of crisis plans may include a Psychiatric Advance Directive or Wellness Recovery Action Plan.
- 4.e.7. The treatment plan documents the consumer’s advance wishes related to treatment and crisis management and, if the consumer does not wish to share their preferences, that decision is documented.
- 4.k.4. When providing services to veterans, the CCBHC must comply with Veterans Health Administration (VHA) requirements governing Advance Care Planning Documents.
Last Updated: 04/22/2020
Video Resources: Advanced CAre Planning
Additional Information
1. Advance Care Planning: It’s just 5 steps – animated graphic illustrator. (1.25 minutes)
https://www.youtube.com/watch?v=mPtu-FpY1Kw
2. Reflections on End of Life Care: Honoring Wishes (2.13 minutes)
https://www.youtube.com/watch?time_continue=1&v=qvsXKMWPI-w
For Raymond Wong, who takes care of his aging mother, the death of his brother left him acutely aware of the need to put his wishes in writing. (CA HealthCare Foundation 2/15 ACP Videos)
3. Palliative Care: You are a bridge -- Animated video. (1.42 minutes)
https://www.youtube.com/watch?time_continue=1&v=lDHhg76tMHc
When foundation is weakened by illness, the palliative care team provides a stronger layer of support. (Center for Advancement of Palliative Care – CAPC , Sept 2014)
4. What is Advance Care Planning & Why It Matters Honoring Choices Florida (5 minutes)
Young adults talk about the importance. https://www.youtube.com/watch?v=JLuqywONIO8
5. Ellen Goodman – Mother’s Story and Importance of ACP Conversations ( 4.5 minutes )
https://www.youtube.com/watch?time_continue=6&v=owH-os9I19I
Co-founder and Pulitzer Prize Winning Columnist gives shares personal stories about why it is so vitally important to do advance care planning. June, 2014
6. What about a Psychiatric Advance Directive. What Kind of Information is in that? (12 minutes)
http://webcasts.nrc-pad.org/EricPresentation/042406duke.html
Eric B. Elbogen, PhD, MLS, Duke University Medical Center and PAD Resource Center
7. Reflections on End of Life Care: Death A Part of Life, Dr. LaVera Crawley, CHCF 2/12 (2 minutes)
https://www.youtube.com/watch?time_continue=2&v=vSyiY5gxaCo
A physician studying to become a chaplain, Dr. LaVera Crawley says the health care industry only markets its successes, making it harder to acknowledge that death is part of life.
8. My Care My Plan Speak Up Sonoma County – 3 short videos with community leaders
http://www.mycaremyplansonoma.org/video/video-talk-to.htm
Why it is important to have an Advance Directive? What Should be included in an AHCD? Who should you talk to about your ACP Wishes? (each 1.5 – 2 minutes max)
