top of page

# Psychiatric Advance Directives - Information for Providers


Disability Rights of West Virginia 

Protection and Advocacy for Individuals with Mental Illness Advisory Council


This information was developed to raise awareness of Psychiatric Advance Directives. It is not intended to provide legal or medical advice.


## Providers


Psychiatric Advance Directives

Used to document an individual’s specific instructions or preferences regarding mental health treatment, in preparation for the possibility that the person may lose capacity to give or withhold informed consent to treatment during a crisis


## Options


Three options for developing a Psychiatric Advance Directive:


*Living Will

*Medical Power of Attorney

*Combination of Living Will and Medical Power of Attorney


## Typically under state laws...


*Accept or refuse treatment

*Have an advance directive and / or healthcare agent

*Most states you can have a single or separate plan for physical and psychiatric care


## West Virginia Healthcare Decisions Act


*Addresses End of Life Care

*Includes psychiatric care under the definition for health care decisions under the definition of healthcare facilities


## Right to Create a Psychiatric Advance Directive


State Rule 64-74-5 

Advance Psychiatric Directive Right


*A consumer has a right to an advance psychiatric directive prepared at a time when the individual has not been adjudged to be incompetent


## Consumer Rights


*A consumer has the right to refuse to create an advance psychiatric directive

*A consumer with an advance psychiatric directive has the right to have it entered into his or her clinical record at the behavioral health service at which he or she is receiving or may receive care or treatment


## Role as a Provider


*Inform consumers of their right to create a psychiatric advance directive


## State Medicaid Agency Obligations


*Must develop a written description of the state’s Advance Directive law to be distributed by Medicaid providers and health plans

*Any revisions to state law must be incorporated into information no later than 60 days of effective date of law

*When contracting with managed care plans, state Medicaid agencies must require the plan to comply with requirements of federal law in regard to written policies and procedures

*Plan must meet the requirements of the Patient Self Determination Act


## Federal Role


Department of Health and Human Services is required to:


*Conduct public education campaign

*Conduct Provider technical assistance to states

*Oversee compliance

*Mail Advance Directive information to Social Security recipients


*In partial fulfillment of these requirements Federal DHHS has developed a brochure describing advance directives*


## Community Education


The same written materials do not have to be provided in all settings, however all must:


*Define a advance directive

*Emphasize that it is designed for consumers to exercise self-direction over healthcare

*Describe applicable state law in regard to advance directives

*All information distributed must be current

    *Must include state law revisions within 90 days of effective date of the revision

    *Providers may contract with other entities to provide the information; however, the provider is legally responsible for ensuring education occurs


## When Information on AD Policies Must Be Provided


*At time of admission

*Upon enrollment in a healthcare plan

*Before receiving care

*When initially receiving care


## Family receipt of Advance Directive Information


Providers may give information regarding an advance directive when:


*The consumer is incapacitated and unable to receive information due to a mental disorder or an incapacitating condition, or if the consumer is unable to articulate whether or not they have an advance directive

*The information must be given to the consumer once they are no longer incapacitated


## Providers


*A consumer has the right to be informed by a behavioral health service of the availability and applicability of an advance psychiatric directive and to receive education and assistance from the behavioral health service in preparing such a document


## Role as a Provider


*Entities must provide education to their staff and their community on advance directives either directly or with other providers

*Education must include education regarding:

    *Rights under state law to participate in decisions regarding their medical care

    *The facilities policies regarding advance directives




* Don’t wait until a crisis to introduce the idea of creating an Advance Directive

*Include in treatment plan

*Collaborate with other providers to do community education

*Distribute information to consumers at intake, and periodically thereafter


## Providers should consider...


*Advance directives can describe treatment(s) a consumer wants in the event of a crisis

*An Advance directive can be rejected, even verbally, at any time by the consumer ("Ulysses effect")

*Involuntary treatment may be requested -- or imposed (mental hygiene process) in an emergency - even when there is an advance directive


## When providers can refuse to implement an Advance Directive


*The provider does not have the resources to provide the treatment

*A provider believes that the directive would endanger the consumer’s life or be dangerous to others

*If a provider does not honor a psychiatric advance directive, they must tell the consumer the reason for not honoring their advance psychiatric directive




*Be specific

*Do it in writing


## Complaints


*State Medicaid agencies are responsible for reviewing and responding to complaints regarding advance directives

*Penalties can include fines and / or removal as Medicaid / Medicare approved provider


## What to do if directives are not being followed


*Complaints can be filed with the agency that surveys and certifies Medicare and Medicaid providers

*Providers and healthcare plans must inform consumers they have this right, and how to file a complaint


## Benefits


*Promotes self-direction of care

*May enable crisis intervention early

*Enhances communication between healthcare providers and the consumer

*Self-directed services may be provided even if involuntarily hospitalized

*Can be included in Treatment Plans

*Allows the consumer to describe their own crisis and behaviors to identify behaviors and preferences regarding interventions

*Helps providers engage the consumer in their own treatment

*Could assist in avoiding involuntary treatment


## The Role of Education


*Locate or develop and distribute printed materials describing Psychiatric Advance Directives

*Inform staff of the provider’s role

*Ask individuals if they want to include Psychiatric Advance Directives in their treatment plan


## Resources


West Virginia Advocates 


(800) 950-5250


WV Bureau of Senior Services 

(877) 987-3646 


Caring Connections 


(800) 658-8898


Advance Self-Advocacy Plan (ASAP) 


National Resource Center on Psychiatric Advance Directives 


bottom of page