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You have
the right to control the decisions about
your medical care. To make these
decisions, you must be competent and
able to communicate. If you are not
competent or able to communicate,
someone else must make these decisions
for you. With advance directives, you
can guide how these decisions will be
made.
Advance directives may take different forms. A living will is an advance directive in which you express your desire to die a natural death. A health care power of attorney is an advance directive that appoints a health care agent to make decisions when you are unable to make them. It also allows you to express how you want your medical treatment handled. An advance instruction for mental health treatment is an advance directive that applies only to mental health care. This publication explains an advance instruction for mental health treatment.
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Who may make an advance instruction for mental health treatment?Any person of sound mind who is age 18 or over may make an advance instruction for mental health treatment. This person is called the "principal."
What is an advance instruction for mental health treatment?
An advance instruction for mental health treatment allows you to give instructions and preferences regarding mental health treatment. The advance instruction may include consent to or refusal of mental health treatment. "Mental health treatment" is defined by statute to mean
the process of providing for the physical, emotional, psychological, and social needs of the principal for the principal's mental illness. 'Mental health treatment' includes, but is not limited to, electroconvulsive treatment, treatment of mental illness with psychotropic medication, and admission to and retention in a facility for care or treatment of mental illness.An advance instruction may include
- the names and telephone numbers of individuals to be contacted in case of a mental health crisis;
- situations that may cause the principal to experience a mental health crisis;
- responses that may assist the principal to remain in the principal's home during a mental health crisis;
- the types of assistance that may help stabilize the principal if it becomes necessary to enter a facility; and
- medications that the principal is taking or has taken in the past and the effects of those medications.
The advance instruction for mental health treatment is designed for people who have mental illnesses, such as paranoia, schizophrenia, or a bi-polar disorder. It is not designed for people who may be experiencing mental health problems associated with aging, such as Alzheimer's disease or dementia. People who are concerned with these types of mental health problems may use a health care power of attorney to express their preferences for mental health care treatment.
A statutory form for an advance instruction for mental health treatment is provided by § 122C-77 of the North Carolina General Statutes. Other forms may be used as long as they comply with the requirements of the statute. If you use a form, read and understand all provisions before signing. Your lawyer can explain and, if necessary, modify the available forms.
How do you execute an advance instruction for mental health treatment?
The principal must sign the advance instruction for mental health treatment in the presence of two qualified witnesses who believe the principal to be of sound mind at the time of the signing. The signatures of the principal and the witnesses must be acknowledged before a notary public. A qualified witness is someone who personally knows the principal, and who is not
- the attending physician or mental health treatment provider or an employee of the physician or mental health treatment provider;
- the owner, operator, or employee of an owner or operator of a health care facility in which the principal is a resident; or
- a person related to the principal or the principal's spouse.
An advance instruction becomes effective when it is signed, witnessed, and notarized. It remains in effect unless revoked by the principal. The doctor may rely upon an advance instruction in the absence of actual knowledge of its revocation or invalidity.
If the principal is capable, he or she may revoke the advance instruction at any time in whole or in part. The revocation is effective when the principal notifies his or her doctor that it is revoked. The principal's doctor must note the revocation in the principal's medical record.
The principal's doctor must continue to obtain the principal's informed consent to all mental health treatment decisions when the principal is capable of providing informed consent or refusal. Instructions given by the principal while he or she is capable supercede the instructions written in the principal's advance instruction.
The doctor must make the advance instruction part of the patient's medical record. The doctor must comply with it to the fullest extent possible, unless compliance is not consistent with
- generally accepted community practice standards of treatment to benefit the principal;
- availability of the mental health treatments requested;
- applicable law;
- appropriate treatment in case of an emergency endangering life or health; or
- when the principal is involuntarily committed to a 24-hour facility and undergoing treatment as provided by law.
If the doctor is unwilling to comply with part or all of the advance instruction for one or more of the reasons stated above, he or she must notify the principal and, if applicable, the health care agent. The doctor must record the reason for noncompliance in the patient's medical record, and must also document the notification.
How is a health care agent appointed?
A health care agent may be appointed with a health care power of attorney. A health care agent makes decisions when the principal is unable to make them. An advance instruction for mental health treatment may be combined with a health care power of attorney. A health care agent must be competent, at least 18 years old, and not providing health care to the principal for remuneration.
What is the health care agent's authority?
The health care agent may make decisions about mental health treatment on behalf of the principal only when the principal is incapable. The principal is incapable when the doctor or eligible psychologist determines that the principal currently lacks sufficient understanding or the capacity to make and communicate mental health treatment decisions.
A health care agent's decisions about mental health treatment must be consistent with any statements expressed in the principal's advance instruction for mental health treatment. If the principal does not have an advance instruction, the health care agent must make mental health decisions consistent with what the agent, in good faith, believes to be the wishes of the principal.
What is the health care agent's potential liability?
The agent is not subject to criminal prosecution, civil liability, or professional disciplinary action for any action taken in good faith pursuant to an advance instruction.
Conclusion
The advance instruction for mental health treatment statutory form is not designed to be used for general mental health problems associated with growing older. If you are interested in addressing these issues, you can use a general health care power of attorney. Ask your attorney for more information.
References from the North Carolina General Statutes:32A-16. Definitions
32A-17. Who may make a health care power of attorney
32A-18. Who may act as a health care attorney-in-fact
32A-19. Extent of authority; limitations of authority
32A-20. Effectiveness and duration; revocation
32A-21. Appointment, resignation, removal, and substitition
32A-24. Reliance on health care power of attorney; defense
32A-25. Statutory form health care power of attorney (contains language for use with an advance instruction for mental health treatment, post October 1, 1998 version.)
122C-72. Definitions
122C-73. Scope, use, and authority of advance instruction for mental health treatment
122C-74. Effectiveness and duration; revocation
122C-75. Reliance on advance instruction for mental health treatment
122C-76. Penalty
122C-77. Statutory form for advance instruction for mental health treatment
Prepared by Carol A. Schwab, J.D., LL.M., Professor and Extension Specialist, NC State University.
This publication is provided as a public service and is designed to acquaint you with certain legal issues and concerns. It is not designed as a substitute for legal advice, nor does it tell you everything you may need to know about this subject. Future changes in the law cannot be predicted, and statements in this publication are based solely on the laws of North Carolina in force on the date of publication.
Date: August 2000
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