Psychiatric Advance Directives

Today, most states authorize the use of some form of psychiatric advance directive (PAD). PADs are similar to the more familiar “advance medical directive,” typically used in connection with end-of-life medical decision-making. An “advance medical directive” (also known as a “health care advance directive” or “instruction directive”) is a written statement made by a patient concerning future health care wishes. Advance medical directives consist of two parts: a “living will” and a “health care proxy” or “medical power of attorney.” A living will is a document in which a patient provides direction regarding medical treatments that the patient wishes to accept or refuse under various circumstances. A health care proxy is a document designating an agent (surrogate decision-maker) to act on the patient’s behalf with respect to medical decisions. (I posted a blog about advance medical directives some time ago.)

PADs differ from advance medical directives in that they are used to provide health care providers with patient preferences for future mental health care treatments. PADs are similar to advance medical directives in that PADs, like advance medical directives, can consist of two parts. The first part of a PAD gives patient instructions regarding future mental health care treatment, while the second part of a PAD designates a proxy decision-maker for mental health care.

In New Jersey, PADs are authorized by a law called the “New Jersey Advance Directives for Mental Health Care Act”, codified at N.J.S.A. 26: 2H-102 et seq. Findings made by the Legislature which prompted lawmakers to pass the Act are set forth in N.J.S.A. 26:2H-103 which provides, in part, as follows:

This State recognizes … a patient’s right … to plan ahead for health care decisions through the execution of an advance directive for health care … . Advance directives … provide a vehicle for competent adults … to accept or refuse medical treatment in the event that they are rendered unable to make decisions … about their treatment options because of … loss of mental capacity … . The issues affecting persons with mental illness and their psychiatric needs warrant enactment of a separate statute governing advance directives for these individuals … . In order to permit a person with mental illness to execute an advance directive that specifies preferences for mental health services in the event that the declarant is subsequently determined to lack decision-making capacity, the Legislature hereby enacts the “New Jersey Advance Directives for Mental Health Care Act.”

To be effective, a PAD must be in writing, and signed in presence of one witness who cannot be a relative of the patient, or the patient’s treating doctor or mental health provider. Of course, a PAD must be executed while the patient is competent to make medical decisions.

Once a PAD is executed, mental health care providers must act in accordance with care directives contained in the document when the patient is determined to be “lacking in decision-making capacity.” The patient is “lacking in decision-making capacity” when, in the opinion of two mental healthcare professionals, the patient “lacks sufficient understanding or capacity to make and communicate mental health treatment decisions.”

PADs can be changed or revoked at any time by notifying the patient’s physician or treatment team, revising the document, or by destroying the document. However, the Nation Alliance for the Mentally Ill suggests that PADs include a clause that instructs mental health care providers to ignore any statements by the patient refusing treatment made during periods of incapacity.

The New Jersey Advance Directives for Mental Health Care Act, N.J.S.A. 26: 2H-102 et seq. is annexed here – New Jersey Advance Directives for Mental Health Care Act

Two forms of Psychiatric Advance Directives are annexed here – Mental Health Association in New Jersey PAD FormPsychiatric Advance Directive – State of New Jersey Website