AB 1029: Advance health care directive form.
- Session Year: 2023-2024
- House: Assembly
- Latest Version Date: 2023-09-08
Current Status:
Passed
(2023-09-08: Chaptered by Secretary of State - Chapter 171, Statutes of 2023.)
Introduced
In Committee
First Chamber
In Committee
Second Chamber
Enacted
Existing law establishes the requirements for executing a written advance health care directive that is legally sufficient to direct health care decisions. Existing law provides a form that an individual may use or modify to create an advance health care directive. The statutory form includes a space to designate an agent to make health care decisions, as well as optional spaces to designate a first alternate agent and 2nd alternate agent. Existing law defines health care decision, as specified. Existing law authorizes an individual to provide an individual health care instruction as the individuals authorized written or oral direction regarding a health care decision for the individual.
This bill would clarify that a health care decision does not include consent by a patients agent, conservator, or surrogate to convulsive treatment, psychosurgery, sterilization, or abortion. The bill would confirm that a voluntary standalone psychiatric advance directive, as defined, may still be executed. The bill would clarify in the statutory advance health care directive form that the individuals agent may not consent to a mental health facility or consent to convulsive treatment, psychosurgery, sterilization, or abortion for the individual.
Existing law establishes the requirements for executing a written advance health care directive that is legally sufficient to direct health care decisions. Existing law provides a form that an individual may use or modify to create an advance health care directive. The statutory form includes a space to designate an agent to make health care decisions, as well as optional spaces to designate a first alternate agent and 2nd alternate agent. Existing law defines health care decision, as specified. Existing law authorizes an individual to provide an individual health care instruction as the individuals authorized written or oral direction regarding a health care decision for the individual.
This bill would clarify that a health care decision does not include consent by a patients agent, conservator, or surrogate to convulsive treatment, psychosurgery, sterilization, or abortion. The bill would confirm that a voluntary standalone psychiatric advance directive, as defined, may still be executed. The bill would clarify in the statutory advance health care directive form that the individuals agent may not consent to a mental health facility or consent to convulsive treatment, psychosurgery, sterilization, or abortion for the individual.
Existing law establishes the requirements for executing a written advance health care directive that is legally sufficient to direct health care decisions. Existing law provides a form that an individual may use or modify to create an advance health care directive. The statutory form includes a space to designate an agent to make health care decisions, as well as optional spaces to designate a first alternate agent and 2nd alternate agent. Existing law defines health care decision, as specified. Existing law authorizes an individual to provide an individual health care instruction as the individuals authorized written or oral direction regarding a health care decision for the individual.
This bill would clarify that a health care decision does not include consent by a patients agent, conservator, or surrogate to convulsive treatment, psychosurgery, sterilization, or abortion. The bill would confirm that a voluntary standalone Psychiatric Advance Directive psychiatric advance directive, as defined, may still be executed. The bill would clarify in the statutory advance health care directive form that the individuals agent may not consent to a mental health facility, facility or consent to convulsive treatment, psychosurgery, sterilization, or abortion for the individual.
Existing law establishes the requirements for executing a written advance health care directive that is legally sufficient to direct health care decisions. Existing law provides a form that an individual may use or modify to create an advance health care directive. The statutory form includes a space to designate an agent to make health care decisions, as well as optional spaces to designate a first alternate agent and 2nd alternate agent. Existing law defines health care decision, as specified. Existing law authorizes an individual to provide an individual health care instruction as the individuals authorized written or oral direction regarding a health care decision for the individual.
This bill would add an optional space on the statutory form for an individual to designate a separate mental health agent for decisions related to mental health.This bill would clarify that a health care decision does not include consent by a patients agent, conservator, or surrogate to convulsive treatment, psychosurgery, sterilization, or abortion. The bill would confirm that a voluntary standalone Psychiatric Advance Directive may still be executed. The bill would clarify in the statutory advance health care directive form that the individuals agent may not consent to a mental health facility, or consent to convulsive treatment, psychosurgery, sterilization, or abortion for the individual.
Existing law establishes the requirements for executing a written advance health care directive that is legally sufficient to direct health care decisions. Existing law provides a form that an individual may use or modify to create an advance health care directive. The statutory form includes a space to designate an agent to make health care decisions, as well as optional spaces to designate a first alternate agent and 2nd alternate agent.
This bill would add an optional space on the statutory form for an individual to designate a separate mental health agent for decisions related to mental health.
(a)Health care decision means a decision made by a patient or the patients agent, conservator, or surrogate, regarding the patients health care, including the following:
(1)Selection and discharge of health care providers and institutions.
(2)Approval or disapproval of diagnostic tests, surgical procedures, and programs of medication, including mental health conditions.
(3)Directions to provide, withhold, or withdraw artificial nutrition and hydration and all other forms of health care, including cardiopulmonary resuscitation.
(b)Health care decision does not include a decision made by a patients agent, conservator, or surrogate to consent to treatments identified in Section 4652.
SEC. 2.Section 4679 is added to the Probate Code, to read:4679.(a)(1)This chapter does not prohibit the execution of a voluntary standalone psychiatric advance directive.
(2)As used in this chapter, psychiatric advance directive means a legal document, executed on a voluntary basis by a person who has the capacity to make medical decisions and in accordance with the requirements for an advance health care directive in this division, that allows a person with mental illness to protect their autonomy and ability to direct their own care by documenting their preferences for treatment in advance of a mental health crisis.
(b)It is the intent of the Legislature to promote the use of a psychiatric advance directive, subject to the requirements of this division, by a person who wants to make sure their health care providers know their treatment preferences in the event of a future mental health crisis.
(c)The Legislature finds and declares all of the following:
(1)Research has demonstrated that the use of psychiatric advance directives improves collaboration, which improves outcomes, increases empowerment, and improves medication adherence.
(2)A psychiatric advance directive is most helpful when it includes reasons for preferring or opposing specific types of treatment.
(3)Mental health preferences that do not constitute health care instructions or decisions as defined in this part may provide valuable information to improve an individuals mental health care.
SEC. 3.Section 4701 of the Probate Code is amended to read:4701.The statutory advance health care directive form is as follows:
ADVANCE HEALTH CARE DIRECTIVE
(California Probate Code Section 4701)
Explanation
You have the right to give instructions about your own physical and mental health care. You also have the right to name someone else to make those health care decisions for you. This form lets you do either or both of these things. It also lets you express your wishes regarding donation of organs and the designation of your primary physician. If you use this form, you may complete or modify all or any part of it. You are free to use a different form.
Part 1 of this form is a power of attorney for health care. Part 1 lets you name another individual as agent to make health care decisions for you if you become incapable of making your own decisions or if you want someone else to make those decisions for you now even though you are still capable. You may also name an alternate agent to act for you if your first choice is not willing, able, or reasonably available to make decisions for you. (Your agent may not be an operator or employee of a community care facility or a residential care facility where you are receiving care, or your supervising health care provider or employee of the health care institution where you are receiving care, unless your agent is related to you or is a coworker.)
Unless the form you sign limits the authority of your agent, your agent may make all health care decisions for you. This form has a place for you to limit the authority of your agent. You need not limit the authority of your agent if you wish to rely on your agent for all health care decisions that may have to be made. If you choose not to limit the authority of your agent, your agent will have the right to:
(a)Consent or refuse consent to any care, treatment, service, or procedure to maintain, diagnose, or otherwise affect a physical or mental condition.
(b)Select or discharge health care providers and institutions.
(c)For all physical and mental health care, approve or disapprove diagnostic tests, surgical procedures, and programs of medication.
(d)Direct the provision, withholding, or withdrawal of artificial nutrition and hydration and all other forms of health care, including cardiopulmonary resuscitation.
(e)Donate your organs, tissues, and parts, authorize an autopsy, and direct disposition of remains.
However, your agent will not be able to commit you to a mental health facility, or consent to convulsive treatment, psychosurgery, sterilization, or abortion for you.
Part 2 of this form lets you give specific instructions about any aspect of your health care, whether or not you appoint an agent. Choices are provided for you to express your wishes regarding the provision, withholding, or withdrawal of treatment to keep you alive, as well as the provision of pain relief. Space is also provided for you to add to the choices you have made or for you to write out any additional wishes. If you are satisfied to allow your agent to determine what is best for you in making end-of-life decisions, you need not fill out Part 2 of this form.
Part 3 of this form lets you express an intention to donate your bodily organs, tissues, and parts following your death.
Part 4 of this form lets you designate a physician to have primary responsibility for your health care.
After completing this form, sign and date the form at the end. The form shall be signed by two qualified witnesses or acknowledged before a notary public. Give a copy of the signed and completed form to your physician, to any other health care providers you may have, to any health care institution at which you are receiving care, and to any health care agents you have named. You should talk to the person you have named as agent to make sure that they understand your wishes and is willing to take the responsibility.
You have the right to revoke this advance health care directive or replace this form at any time.
* * * * * * * * * * * * * * * * | |||
PART 1 | |||
(1.1)DESIGNATION OF AGENT:I designate the following individual as my agent to make health care
decisions for me: | |||
(name of individual you choose as agent) | |||
(address)(city)(state)(ZIP Code) | |||
(home phone) | (work phone) | ||
| |||
(name of individual you choose as first alternate agent) | |||
(address)(city)(state)(ZIP Code) | |||
(home phone) | (work phone) | ||
| |||
(name of individual you choose as second alternate agent) | |||
(address)(city)(state)(ZIP Code) | |||
(home phone) | (work phone) | ||
| |||
(Add additional sheets if needed.) | |||
| |||
(1.4)AGENTS OBLIGATION:My agent shall make health care decisions for me in accordance with this power of attorney for health care, any instructions I give in Part 2 of this form, and my other wishes to the extent known to my agent. To the extent my wishes are unknown, my agent shall make health care decisions for me in accordance with what my agent determines to be in my best interest. In determining my best interest, my agent shall consider my personal values to the extent known to my agent. | |||
(1.5)AGENTS POSTDEATH AUTHORITY:My agent is authorized to donate my organs, tissues, and parts, authorize an autopsy, and direct disposition of my remains, except as I state here or in Part 3 of this form: | |||
(Add additional sheets if needed.) | |||
(1.6)NOMINATION OF CONSERVATOR: If a conservator of my person needs to be appointed for me by a court, I nominate the agent designated in this form. If that agent is not willing, able, or reasonably available to act as conservator, I nominate the alternate agents whom I have named, in the order designated. | |||
PART 2 | |||
If you fill out this part of the form, you may strike any wording you do not want. | |||
(2.1)ENDOFLIFE DECISIONS: I direct that my health care providers and others involved in my care provide, withhold, or withdraw treatment in accordance with the choice I have marked below: | |||
(a)Choice Not To Prolong Life | |||
I do not want my life to be prolonged if (1) I have an incurable and irreversible condition that will result in my death within a relatively short time, (2) I become unconscious and, to a reasonable degree of medical certainty, I will not regain consciousness, or (3) the likely risks and burdens of treatment would outweigh the expected benefits, OR | |||
(b)Choice To Prolong Life | |||
I want my life to be prolonged as long as possible within the limits of generally accepted health care standards. | |||
(2.2)RELIEF FROM PAIN:Except as I state in the following space, I direct that treatment for alleviation of pain or discomfort be provided at all times, even if it hastens my death: | |||
(Add additional sheets if needed.) | |||
WISHES FOR PHYSICAL AND MENTAL HEALTH CARE: (If you do not agree with any of the optional choices above and wish to write your own, or if you wish to add to the instructions you have given above, you may do so here.) I direct that: | |||
(Add additional sheets if needed.) | |||
PART 3 | |||
(3.1) Upon my death, I give my organs, tissues, and parts (mark box to indicate yes). By checking the box above, and notwithstanding my choice in Part 2 of this form, I authorize my agent to consent to any temporary medical procedure necessary solely to evaluate and/or maintain my organs, tissues, and/or parts for purposes of donation. | |||
My donation is for the following purposes (strike any of the following you do not want): (a)Transplant | |||
(b)Therapy | |||
(c)Research | |||
(d)Education | |||
If you want to restrict your donation of an organ, tissue, or part in some way, please state your restriction on the following lines: If I leave this part blank, it is not a refusal to make a donation. My state-authorized donor registration should be followed, or, if none, my agent may make a donation upon my death. If no agent is named above, I acknowledge that California law permits an authorized individual to make such a decision on my behalf. (To state any limitation, preference, or instruction regarding donation, please use the lines above or in Section 1.5 of this form). | |||
PART 4 | |||
(4.1)I designate the following physician as my primary physician: | |||
(name of physician) | |||
(address)(city)(state)(ZIP Code) | |||
(phone) | |||
| |||
(name of physician) | |||
(address)(city)(state)(ZIP Code) | |||
(phone) | |||
| |||
| |||
(5.1)EFFECT OF COPY:A copy of this form has the same effect as the original. | |||
(5.2)SIGNATURE:Sign and date the form here: | |||
(date) | (sign your name) | ||
(address) | (print your name) | ||
(city)(state) | |||
(5.3)STATEMENT OF WITNESSES:I declare under penalty of perjury under the laws of California (1) that the individual who signed or acknowledged this advance health care directive is personally known to me, or that the individuals identity was proven to me by convincing evidence, (2) that the individual signed or acknowledged this advance directive in my presence, (3) that the individual appears to be of sound mind and under no duress, fraud, or undue influence, (4) that I am not a person appointed as agent by this advance directive, and (5) that I am not the individuals health care provider, an employee of the individuals health care provider, the operator of a community care facility, an employee of an operator of a community care facility, the operator of a residential care facility for the elderly, nor an employee of an operator of a residential care facility for the elderly. | |||
First witness | Second witness | ||
(print name) | (print name) | ||
(address) | (address) | ||
(city)(state) | (city)(state) | ||
(signature of witness) | (signature of witness) | ||
(date) | (date) | ||
(5.4)ADDITIONAL STATEMENT OF WITNESSES:At least one of the above witnesses must also sign the following declaration: | |||
(signature of witness) | (signature of witness) | ||
PART 6 | |||
(6.1)The following statement is required only if you are a patient in a skilled nursing facilitya health care facility that provides the following basic services: skilled nursing care and supportive care to patients whose primary need is for availability of skilled nursing care on an extended basis. The patient advocate or ombudsman must sign the following statement: | |||
STATEMENT OF PATIENT ADVOCATE OR OMBUDSMAN | |||
I declare under penalty of perjury under the laws of California that I am a patient advocate or ombudsman as designated by the State Department of Aging and that I am serving as a witness as required by Section 4675 of the Probate Code. | |||
(date) | (sign your name) | ||
(address) | (print your name) | ||
(city)(state) | |||
(a)Health care decision means a decision made by a patient or the patients agent, conservator, or surrogate, regarding the patients health care, including the following:
(1)Selection and discharge of health care providers and institutions.
(2)Approval or disapproval of diagnostic tests, surgical procedures, and programs of medication, including mental health conditions.
(3)Directions to provide, withhold, or withdraw artificial nutrition and hydration and all other forms of health care, including cardiopulmonary resuscitation.
(b)Health care decision does not include a decision made by a patients agent, conservator, or surrogate to consent to treatments identified in Section 4652.
SEC. 2.Section 4679 is added to the Probate Code, to read:4679.(a)(1)This chapter does not prohibit the execution of a voluntary standalone psychiatric advance directive.
(2)As used in this chapter, psychiatric advance directive means a legal document, executed on a voluntary basis by a person who has the capacity to make medical decisions and in accordance with the requirements for an advance health care directive in this division, that allows a person with mental illness to protect their autonomy and ability to direct their own care by documenting their preferences for treatment in advance of a mental health crisis.
(b)It is the intent of the Legislature to promote the use of a psychiatric advance directive, subject to the requirements of this division, by a person who wants to make sure their health care providers know their treatment preferences in the event of a future mental health crisis.
(c)The Legislature finds and declares all of the following:
(1)Research has demonstrated that the use of psychiatric advance directives improves collaboration, which improves outcomes, increases empowerment, and improves medication adherence.
(2)A psychiatric advance directive is most helpful when it includes reasons for preferring or opposing specific types of treatment.
(3)Mental health preferences that do not constitute health care instructions or decisions as defined in this part may provide valuable information to improve an individuals mental health care.
SEC. 3.Section 4701 of the Probate Code is amended to read:4701.The statutory advance health care directive form is as follows:
ADVANCE HEALTH CARE DIRECTIVE
(California Probate Code Section 4701)
Explanation
You have the right to give instructions about your own physical and mental health care. You also have the right to name someone else to make those health care decisions for you. This form lets you do either or both of these things. It also lets you express your wishes regarding donation of organs and the designation of your primary physician. If you use this form, you may complete or modify all or any part of it. You are free to use a different form.
Part 1 of this form is a power of attorney for health care. Part 1 lets you name another individual as agent to make health care decisions for you if you become incapable of making your own decisions or if you want someone else to make those decisions for you now even though you are still capable. You may also name an alternate agent to act for you if your first choice is not willing, able, or reasonably available to make decisions for you. (Your agent may not be an operator or employee of a community care facility or a residential care facility where you are receiving care, or your supervising health care provider or employee of the health care institution where you are receiving care, unless your agent is related to you or is a coworker.)
Unless the form you sign limits the authority of your agent, your agent may make all health care decisions for you. This form has a place for you to limit the authority of your agent. You need not limit the authority of your agent if you wish to rely on your agent for all health care decisions that may have to be made. If you choose not to limit the authority of your agent, your agent will have the right to:
(a)Consent or refuse consent to any care, treatment, service, or procedure to maintain, diagnose, or otherwise affect a physical or mental condition.
(b)Select or discharge health care providers and institutions.
(c)For all physical and mental health care, approve or disapprove diagnostic tests, surgical procedures, and programs of medication.
(d)Direct the provision, withholding, or withdrawal of artificial nutrition and hydration and all other forms of health care, including cardiopulmonary resuscitation.
(e)Donate your organs, tissues, and parts, authorize an autopsy, and direct disposition of remains.
However, your agent will not be able to commit you to a mental health facility, or consent to convulsive treatment, psychosurgery, sterilization, or abortion for you.
Part 2 of this form lets you give specific instructions about any aspect of your health care, whether or not you appoint an agent. Choices are provided for you to express your wishes regarding the provision, withholding, or withdrawal of treatment to keep you alive, as well as the provision of pain relief. Space is also provided for you to add to the choices you have made or for you to write out any additional wishes. If you are satisfied to allow your agent to determine what is best for you in making end-of-life decisions, you need not fill out Part 2 of this form.
Part 3 of this form lets you express an intention to donate your bodily organs, tissues, and parts following your death.
Part 4 of this form lets you designate a physician to have primary responsibility for your health care.
After completing this form, sign and date the form at the end. The form shall be signed by two qualified witnesses or acknowledged before a notary public. Give a copy of the signed and completed form to your physician, to any other health care providers you may have, to any health care institution at which you are receiving care, and to any health care agents you have named. You should talk to the person you have named as agent to make sure that they understand your wishes and is willing to take the responsibility.
You have the right to revoke this advance health care directive or replace this form at any time.
* * * * * * * * * * * * * * * * | |||
PART 1 | |||
(1.1)DESIGNATION OF AGENT:I designate the following individual as my agent to make health care
decisions for me: | |||
(name of individual you choose as agent) | |||
(address)(city)(state)(ZIP Code) | |||
(home phone) | (work phone) | ||
| |||
(name of individual you choose as first alternate agent) | |||
(address)(city)(state)(ZIP Code) | |||
(home phone) | (work phone) | ||
| |||
(name of individual you choose as second alternate agent) | |||
(address)(city)(state)(ZIP Code) | |||
(home phone) | (work phone) | ||
| |||
(Add additional sheets if needed.) | |||
| |||
(1.4)AGENTS OBLIGATION:My agent shall make health care decisions for me in accordance with this power of attorney for health care, any instructions I give in Part 2 of this form, and my other wishes to the extent known to my agent. To the extent my wishes are unknown, my agent shall make health care decisions for me in accordance with what my agent determines to be in my best interest. In determining my best interest, my agent shall consider my personal values to the extent known to my agent. | |||
(1.5)AGENTS POSTDEATH AUTHORITY:My agent is authorized to donate my organs, tissues, and parts, authorize an autopsy, and direct disposition of my remains, except as I state here or in Part 3 of this form: | |||
(Add additional sheets if needed.) | |||
(1.6)NOMINATION OF CONSERVATOR: If a conservator of my person needs to be appointed for me by a court, I nominate the agent designated in this form. If that agent is not willing, able, or reasonably available to act as conservator, I nominate the alternate agents whom I have named, in the order designated. | |||
PART 2 | |||
If you fill out this part of the form, you may strike any wording you do not want. | |||
(2.1)ENDOFLIFE DECISIONS: I direct that my health care providers and others involved in my care provide, withhold, or withdraw treatment in accordance with the choice I have marked below: | |||
(a)Choice Not To Prolong Life | |||
I do not want my life to be prolonged if (1) I have an incurable and irreversible condition that will result in my death within a relatively short time, (2) I become unconscious and, to a reasonable degree of medical certainty, I will not regain consciousness, or (3) the likely risks and burdens of treatment would outweigh the expected benefits, OR | |||
(b)Choice To Prolong Life | |||
I want my life to be prolonged as long as possible within the limits of generally accepted health care standards. | |||
(2.2)RELIEF FROM PAIN:Except as I state in the following space, I direct that treatment for alleviation of pain or discomfort be provided at all times, even if it hastens my death: | |||
(Add additional sheets if needed.) | |||
WISHES FOR PHYSICAL AND MENTAL HEALTH CARE: (If you do not agree with any of the optional choices above and wish to write your own, or if you wish to add to the instructions you have given above, you may do so here.) I direct that: | |||
(Add additional sheets if needed.) | |||
PART 3 | |||
(3.1) Upon my death, I give my organs, tissues, and parts (mark box to indicate yes). By checking the box above, and notwithstanding my choice in Part 2 of this form, I authorize my agent to consent to any temporary medical procedure necessary solely to evaluate and/or maintain my organs, tissues, and/or parts for purposes of donation. | |||
My donation is for the following purposes (strike any of the following you do not want): (a)Transplant | |||
(b)Therapy | |||
(c)Research | |||
(d)Education | |||
If you want to restrict your donation of an organ, tissue, or part in some way, please state your restriction on the following lines: If I leave this part blank, it is not a refusal to make a donation. My state-authorized donor registration should be followed, or, if none, my agent may make a donation upon my death. If no agent is named above, I acknowledge that California law permits an authorized individual to make such a decision on my behalf. (To state any limitation, preference, or instruction regarding donation, please use the lines above or in Section 1.5 of this form). | |||
PART 4 | |||
(4.1)I designate the following physician as my primary physician: | |||
(name of physician) | |||
(address)(city)(state)(ZIP Code) | |||
(phone) | |||
| |||
(name of physician) | |||
(address)(city)(state)(ZIP Code) | |||
(phone) | |||
| |||
| |||
(5.1)EFFECT OF COPY:A copy of this form has the same effect as the original. | |||
(5.2)SIGNATURE:Sign and date the form here: | |||
(date) | (sign your name) | ||
(address) | (print your name) | ||
(city)(state) | |||
(5.3)STATEMENT OF WITNESSES:I declare under penalty of perjury under the laws of California (1) that the individual who signed or acknowledged this advance health care directive is personally known to me, or that the individuals identity was proven to me by convincing evidence, (2) that the individual signed or acknowledged this advance directive in my presence, (3) that the individual appears to be of sound mind and under no duress, fraud, or undue influence, (4) that I am not a person appointed as agent by this advance directive, and (5) that I am not the individuals health care provider, an employee of the individuals health care provider, the operator of a community care facility, an employee of an operator of a community care facility, the operator of a residential care facility for the elderly, nor an employee of an operator of a residential care facility for the elderly. | |||
First witness | Second witness | ||
(print name) | (print name) | ||
(address) | (address) | ||
(city)(state) | (city)(state) | ||
(signature of witness) | (signature of witness) | ||
(date) | (date) | ||
(5.4)ADDITIONAL STATEMENT OF WITNESSES:At least one of the above witnesses must also sign the following declaration: | |||
(signature of witness) | (signature of witness) | ||
PART 6 | |||
(6.1)The following statement is required only if you are a patient in a skilled nursing facilitya health care facility that provides the following basic services: skilled nursing care and supportive care to patients whose primary need is for availability of skilled nursing care on an extended basis. The patient advocate or ombudsman must sign the following statement: | |||
STATEMENT OF PATIENT ADVOCATE OR OMBUDSMAN | |||
I declare under penalty of perjury under the laws of California that I am a patient advocate or ombudsman as designated by the State Department of Aging and that I am serving as a witness as required by Section 4675 of the Probate Code. | |||
(date) | (sign your name) | ||
(address) | (print your name) | ||
(city)(state) | |||
(a)Health care decision means a decision made by a patient or the patients agent, conservator, or surrogate, regarding the patients health care, including the following:
(1)Selection and discharge of health care providers and institutions.
(2)Approval or disapproval of diagnostic tests, surgical procedures, and programs of medication, including mental health conditions.
(3)Directions to provide, withhold, or withdraw artificial nutrition and hydration and all other forms of health care, including cardiopulmonary resuscitation.
(b)Health care decision does not include a decision made by a patients agent, conservator, or surrogate to consent to treatments identified in Section 4652.
SEC. 2.Section 4679 is added to the Probate Code, to read:4679.Nothing in this chapter shall (a)(1)This chapter does not prohibit the execution of a voluntary standalone Psychiatric Advance Directive as defined in subdivision (n) of Section 5971 of the Welfare and Institutions Code. psychiatric advance directive.
(2)As used in this chapter, psychiatric advance directive means a legal document, executed on a voluntary basis by a person who has the capacity to make medical decisions and in accordance with the requirements for an advance health care directive in this division, that allows a person with mental illness to protect their autonomy and ability to direct their own care by documenting their preferences for treatment in advance of a mental health crisis.
(b)It is the intent of the Legislature to promote the use of a psychiatric advance directive, subject to the requirements of this division, by a person who wants to make sure their health care providers know their treatment preferences in the event of a future mental health crisis.
(c)The Legislature finds and declares all of the following:
(1)Research has demonstrated that the use of psychiatric advance directives improves collaboration, which improves outcomes, increases empowerment, and improves medication adherence.
(2)A psychiatric advance directive is most helpful when it includes reasons for preferring or opposing specific types of treatment.
(3)Mental health preferences that do not constitute health care instructions or decisions as defined in this part may provide valuable information to improve an individuals mental health care.
SEC. 3.Section 4701 of the Probate Code is amended to read:4701.The statutory advance health care directive form is as follows:
ADVANCE HEALTH CARE DIRECTIVE
(California Probate Code Section 4701)
Explanation
You have the right to give instructions about your own physical and mental health care. You also have the right to name someone else to make those health care decisions for you. This form lets you do either or both of these things. It also lets you express your wishes regarding donation of organs and the designation of your primary physician. If you use this form, you may complete or modify all or any part of it. You are free to use a different form.
Part 1 of this form is a power of attorney for health care. Part 1 lets you name another individual as agent to make health care decisions for you if you become incapable of making your own decisions or if you want someone else to make those decisions for you now even though you are still capable. You may also name an alternate agent to act for you if your first choice is not willing, able, or reasonably available to make decisions for you. (Your agent may not be an operator or employee of a community care facility or a residential care facility where you are receiving care, or your supervising health care provider or employee of the health care institution where you are receiving care, unless your agent is related to you or is a coworker.)
Unless the form you sign limits the authority of your agent, your agent may make all health care decisions for you. This form has a place for you to limit the authority of your agent. You need not limit the authority of your agent if you wish to rely on your agent for all health care decisions that may have to be made. If you choose not to limit the authority of your agent, your agent will have the right to:
(a)Consent or refuse consent to any care, treatment, service, or procedure to maintain, diagnose, or otherwise affect a physical or mental condition.
(b)Select or discharge health care providers and institutions.
(c)For all physical and mental health care, approve or disapprove diagnostic tests, surgical procedures, and programs of medication.
(d)Direct the provision, withholding, or withdrawal of artificial nutrition and hydration and all other forms of health care, including cardiopulmonary resuscitation.
(e)Donate your organs, tissues, and parts, authorize an autopsy, and direct disposition of remains.
However, your agent will not be able to commit you to a mental health facility, or consent to convulsive treatment, psychosurgery, sterilization, or abortion for you.
Part 2 of this form lets you give specific instructions about any aspect of your health care, whether or not you appoint an agent. Choices are provided for you to express your wishes regarding the provision, withholding, or withdrawal of treatment to keep you alive, as well as the provision of pain relief. Space is also provided for you to add to the choices you have made or for you to write out any additional wishes. If you are satisfied to allow your agent to determine what is best for you in making end-of-life decisions, you need not fill out Part 2 of this form.
Part 3 of this form lets you express an intention to donate your bodily organs, tissues, and parts following your death.
Part 4 of this form lets you designate a physician to have primary responsibility for your health care.
After completing this form, sign and date the form at the end. The form shall be signed by two qualified witnesses or acknowledged before a notary public. Give a copy of the signed and completed form to your physician, to any other health care providers you may have, to any health care institution at which you are receiving care, and to any health care agents you have named. You should talk to the person you have named as agent to make sure that they understand your wishes and is willing to take the responsibility.
You have the right to revoke this advance health care directive or replace this form at any time.
* * * * * * * * * * * * * * * * | |||
PART 1 | |||
(1.1)DESIGNATION OF AGENT:I designate the following individual as my agent to make health care
decisions for me: | |||
(name of individual you choose as agent) | |||
(address)(city)(state)(ZIP Code) | |||
(home phone) | (work phone) | ||
| |||
(name of individual you choose as first alternate agent) | |||
(address)(city)(state)(ZIP Code) | |||
(home phone) | (work phone) | ||
| |||
(name of individual you choose as second alternate agent) | |||
(address)(city)(state)(ZIP Code) | |||
(home phone) | (work phone) | ||
| |||
(Add additional sheets if needed.) | |||
| |||
(1.4)AGENTS OBLIGATION:My agent shall make health care decisions for me in accordance with this power of attorney for health care, any instructions I give in Part 2 of this form, and my other wishes to the extent known to my agent. To the extent my wishes are unknown, my agent shall make health care decisions for me in accordance with what my agent determines to be in my best interest. In determining my best interest, my agent shall consider my personal values to the extent known to my agent. | |||
(1.5)AGENTS POSTDEATH AUTHORITY:My agent is authorized to donate my organs, tissues, and parts, authorize an autopsy, and direct disposition of my remains, except as I state here or in Part 3 of this form: | |||
(Add additional sheets if needed.) | |||
(1.6)NOMINATION OF CONSERVATOR: If a conservator of my person needs to be appointed for me by a court, I nominate the agent designated in this form. If that agent is not willing, able, or reasonably available to act as conservator, I nominate the alternate agents whom I have named, in the order designated. | |||
PART 2 | |||
If you fill out this part of the form, you may strike any wording you do not want. | |||
(2.1)ENDOFLIFE DECISIONS: I direct that my health care providers and others involved in my care provide, withhold, or withdraw treatment in accordance with the choice I have marked below: | |||
(a)Choice Not To Prolong Life | |||
I do not want my life to be prolonged if (1) I have an incurable and irreversible condition that will result in my death within a relatively short time, (2) I become unconscious and, to a reasonable degree of medical certainty, I will not regain consciousness, or (3) the likely risks and burdens of treatment would outweigh the expected benefits, OR | |||
(b)Choice To Prolong Life | |||
I want my life to be prolonged as long as possible within the limits of generally accepted health care standards. | |||
(2.2)RELIEF FROM PAIN:Except as I state in the following space, I direct that treatment for alleviation of pain or discomfort be provided at all times, even if it hastens my death: | |||
(Add additional sheets if needed.) | |||
WISHES FOR PHYSICAL AND MENTAL HEALTH CARE: (If you do not agree with any of the optional choices above and wish to write your own, or if you wish to add to the instructions you have given above, you may do so here.) I direct that: | |||
(Add additional sheets if needed.) | |||
PART 3 | |||
(3.1) Upon my death, I give my organs, tissues, and parts (mark box to indicate yes). By checking the box above, and notwithstanding my choice in Part 2 of this form, I authorize my agent to consent to any temporary medical procedure necessary solely to evaluate and/or maintain my organs, tissues, and/or parts for purposes of donation. | |||
My donation is for the following purposes (strike any of the following you do not want): (a)Transplant | |||
(b)Therapy | |||
(c)Research | |||
(d)Education | |||
If you want to restrict your donation of an organ, tissue, or part in some way, please state your restriction on the following lines: If I leave this part blank, it is not a refusal to make a donation. My state-authorized donor registration should be followed, or, if none, my agent may make a donation upon my death. If no agent is named above, I acknowledge that California law permits an authorized individual to make such a decision on my behalf. (To state any limitation, preference, or instruction regarding donation, please use the lines above or in Section 1.5 of this form). | |||
PART 4 | |||
(4.1)I designate the following physician as my primary physician: | |||
(name of physician) | |||
(address)(city)(state)(ZIP Code) | |||
(phone) | |||
| |||
(name of physician) | |||
(address)(city)(state)(ZIP Code) | |||
(phone) | |||
| |||
| |||
(5.1)EFFECT OF COPY:A copy of this form has the same effect as the original. | |||
(5.2)SIGNATURE:Sign and date the form here: | |||
(date) | (sign your name) | ||
(address) | (print your name) | ||
(city)(state) | |||
(5.3)STATEMENT OF WITNESSES:I declare under penalty of perjury under the laws of California (1) that the individual who signed or acknowledged this advance health care directive is personally known to me, or that the individuals identity was proven to me by convincing evidence, (2) that the individual signed or acknowledged this advance directive in my presence, (3) that the individual appears to be of sound mind and under no duress, fraud, or undue influence, (4) that I am not a person appointed as agent by this advance directive, and (5) that I am not the individuals health care provider, an employee of the individuals health care provider, the operator of a community care facility, an employee of an operator of a community care facility, the operator of a residential care facility for the elderly, nor an employee of an operator of a residential care facility for the elderly. | |||
First witness | Second witness | ||
(print name) | (print name) | ||
(address) | (address) | ||
(city)(state) | (city)(state) | ||
(signature of witness) | (signature of witness) | ||
(date) | (date) | ||
(5.4)ADDITIONAL STATEMENT OF WITNESSES:At least one of the above witnesses must also sign the following declaration: | |||
(signature of witness) | (signature of witness) | ||
PART 6 | |||
(6.1)The following statement is required only if you are a patient in a skilled nursing facilitya health care facility that provides the following basic services: skilled nursing care and supportive care to patients whose primary need is for availability of skilled nursing care on an extended basis. The patient advocate or ombudsman must sign the following statement: | |||
STATEMENT OF PATIENT ADVOCATE OR OMBUDSMAN | |||
I declare under penalty of perjury under the laws of California that I am a patient advocate or ombudsman as designated by the State Department of Aging and that I am serving as a witness as required by Section 4675 of the Probate Code. | |||
(date) | (sign your name) | ||
(address) | (print your name) | ||
(city)(state) | |||
(a)Health care decision means a decision made by a patient or the patients agent, conservator, or surrogate, regarding the patients health care, including the following:
(a)(1)Selection and discharge of health care providers and institutions.
(b)(2)Approval or disapproval of diagnostic tests, surgical procedures, and programs of medication, including mental health conditions.
(c)(3)Directions to provide, withhold, or withdraw artificial nutrition and hydration and all other forms of health care, including cardiopulmonary resuscitation.
(b)Health care decision does not include a decision made by a patients agent, conservator, or surrogate to consent to treatments identified in Section 4652.
SEC. 2.Section 4679 is added to the Probate Code, to read:4679.Nothing in this chapter shall prohibit the execution of a voluntary standalone Psychiatric Advance Directive as defined in subdivision (n) of Section 5971 of the Welfare and Institutions Code.
SECTION 1.SEC. 3.Section 4701 of the Probate Code is amended to read:4701.The statutory advance health care directive form is as follows:
ADVANCE HEALTH CARE DIRECTIVE
(California Probate Code Section 4701)
Explanation
You have the right to give instructions about your own physical and mental health care. You also have the right to name someone else to make those health care decisions for you. This form lets you do either or both of these things. It also lets you express your wishes regarding donation of organs and the designation of your primary physician. If you use this form, you may complete or modify all or any part of it. You are free to use a different form.
Part 1 of this form is a power of attorney for health care. Part 1 lets you name another individual as agent to make health care decisions for you if you become incapable of making your own decisions or if you want someone else to make those decisions for you now even though you are still capable. You may also name an alternate agent to act for you if your first choice is not willing, able, or reasonably available to make decisions for you. (Your agent may not be an operator or employee of a community care facility or a residential care facility where you are receiving care, or your supervising health care provider or employee of the health care institution where you are receiving care, unless your agent is related to you or is a coworker.)
Unless the form you sign limits the authority of your agent, your agent may make all health care decisions for you. This form has a place for you to limit the authority of your agent. You need not limit the authority of your agent if you wish to rely on your agent for all health care decisions that may have to be made. If you choose not to limit the authority of your agent, your agent will have the right to:
(a)Consent or refuse consent to any care, treatment, service, or procedure to maintain, diagnose, or otherwise affect a physical or mental condition.
(b)Select or discharge health care providers and institutions.
(c)For all physical and mental health care, approve or disapprove diagnostic tests, surgical procedures, and programs of medication.
(d)Direct the provision, withholding, or withdrawal of artificial nutrition and hydration and all other forms of health care, including cardiopulmonary resuscitation.
(e)Donate your organs, tissues, and parts, authorize an autopsy, and direct disposition of remains.
However, your agent will not be able to commit you to a mental health facility, or consent to convulsive treatment, psychosurgery, sterilization, or abortion for you.
Part 2 of this form lets you give specific instructions about any aspect of your health care, whether or not you appoint an agent. Choices are provided for you to express your wishes regarding the provision, withholding, or withdrawal of treatment to keep you alive, as well as the provision of pain relief. Space is also provided for you to add to the choices you have made or for you to write out any additional wishes. If you are satisfied to allow your agent to determine what is best for you in making end-of-life decisions, you need not fill out Part 2 of this form.
Part 3 of this form lets you express an intention to donate your bodily organs, tissues, and parts following your death.
Part 4 of this form lets you designate a physician to have primary responsibility for your health care.
After completing this form, sign and date the form at the end. The form shall be signed by two qualified witnesses or acknowledged before a notary public. Give a copy of the signed and completed form to your physician, to any other health care providers you may have, to any health care institution at which you are receiving care, and to any health care agents you have named. You should talk to the person you have named as agent to make sure that they understand your wishes and is willing to take the responsibility.
You have the right to revoke this advance health care directive or replace this form at any time.
* * * * * * * * * * * * * * * * | |||
PART 1 | |||
(1.1)DESIGNATION OF AGENT:I
designate the following individual as my agent to make health care decisions for me: | |||
(name of individual you choose as agent) | |||
(address)(city)(state)(ZIP Code) | |||
(home phone) | (work phone) | ||
| |||
(name of individual you choose as first alternate agent) | |||
(address)(city)(state)(ZIP Code) | |||
(home phone) | (work phone) | ||
| |||
(name of individual you choose as second alternate agent) | |||
(address)(city)(state)(ZIP Code) | |||
(home phone) | (work phone) | ||
| OPTIONAL:I choose to have a separate mental health agent for decisions related to mental health. I designate the following individual as my agent to make mental health care decisions for me: | |||
| (name of individual you choose as mental health agent) | |||
| (address)(city)(state)(ZIP Code) | |||
| (home phone) | (work phone) | ||
| |||
(Add additional sheets if needed.) | |||
| |||
(1.4)AGENTS OBLIGATION:My agent shall make health care decisions for me in accordance with this power of attorney for health care, any instructions I give in Part 2 of this form, and my other wishes to the extent known to my agent. To the extent my wishes are unknown, my agent shall make health care decisions for me in accordance with what my agent determines to be in my best interest. In determining my best interest, my agent shall consider my personal values to the extent known to my agent. | |||
(1.5)AGENTS POSTDEATH AUTHORITY:My agent is authorized to donate my organs, tissues, and parts, authorize an autopsy, and direct disposition of my remains, except as I state here or in Part 3 of this form: | |||
(Add additional sheets if needed.) | |||
(1.6)NOMINATION OF CONSERVATOR: If a conservator of my person needs to be appointed for me by a court, I nominate the agent designated in this form. If that agent is not willing, able, or reasonably available to act as conservator, I nominate the alternate agents whom I have named, in the order designated. | |||
PART 2 | |||
If you fill out this part of the form, you may strike any wording you do not want. | |||
(2.1)ENDOFLIFE DECISIONS: I direct that my health care providers and others involved in my care provide, withhold, or withdraw treatment in accordance with the choice I have marked below: | |||
(a)Choice Not To Prolong Life | |||
I do not want my life to be prolonged if (1) I have an incurable and irreversible condition that will result in my death within a relatively short time, (2) I become unconscious and, to a reasonable degree of medical certainty, I will not regain consciousness, or (3) the likely risks and burdens of treatment would outweigh the expected benefits, OR | |||
(b)Choice To Prolong Life | |||
I want my life to be prolonged as long as possible within the limits of generally accepted health care standards. | |||
(2.2)RELIEF FROM PAIN:Except as I state in the following space, I direct that treatment for alleviation of pain or discomfort be provided at all times, even if it hastens my death: | |||
(Add additional sheets if needed.) | |||
WISHES FOR PHYSICAL AND MENTAL HEALTH CARE: (If you do not agree with any of the optional choices above and wish to write your own, or if you wish to add to the instructions you have given above, you may do so here.) I direct that: | |||
(Add additional sheets if needed.) | |||
PART 3 | |||
(3.1) Upon my death, I give my organs, tissues, and parts (mark box to indicate yes). By checking the box above, and notwithstanding my choice in Part 2 of this form, I authorize my agent to consent to any temporary medical procedure necessary solely to evaluate and/or maintain my organs, tissues, and/or parts for purposes of donation. | |||
My donation is for the following purposes (strike any of the following you do not want): (a)Transplant | |||
(b)Therapy | |||
(c)Research | |||
(d)Education | |||
If you want to restrict your donation of an organ, tissue, or part in some way, please state your restriction on the following lines: If I leave this part blank, it is not a refusal to make a donation. My state-authorized donor registration should be followed, or, if none, my agent may make a donation upon my death. If no agent is named above, I acknowledge that California law permits an authorized individual to make such a decision on my behalf. (To state any limitation, preference, or instruction regarding donation, please use the lines above or in Section 1.5 of this form). | |||
PART 4 | |||
(4.1)I designate the following physician as my primary physician: | |||
(name of physician) | |||
(address)(city)(state)(ZIP Code) | |||
(phone) | |||
| |||
(name of physician) | |||
(address)(city)(state)(ZIP Code) | |||
(phone) | |||
| |||
| |||
(5.1)EFFECT OF COPY:A copy of this form has the same effect as the original. | |||
(5.2)SIGNATURE:Sign and date the form here: | |||
(date) | (sign your name) | ||
(address) | (print your name) | ||
(city)(state) | |||
(5.3)STATEMENT OF WITNESSES:I declare under penalty of perjury under the laws of California (1) that the individual who signed or acknowledged this advance health care directive is personally known to me, or that the individuals identity was proven to me by convincing evidence, (2) that the individual signed or acknowledged this advance directive in my presence, (3) that the individual appears to be of sound mind and under no duress, fraud, or undue influence, (4) that I am not a person appointed as agent by this advance directive, and (5) that I am not the individuals health care provider, an employee of the individuals health care provider, the operator of a community care facility, an employee of an operator of a community care facility, the operator of a residential care facility for the elderly, nor an employee of an operator of a residential care facility for the elderly. | |||
First witness | Second witness | ||
(print name) | (print name) | ||
(address) | (address) | ||
(city)(state) | (city)(state) | ||
(signature of witness) | (signature of witness) | ||
(date) | (date) | ||
(5.4)ADDITIONAL
STATEMENT OF WITNESSES:At least one of the above witnesses must also sign the following declaration: | |||
(signature of witness) | (signature of witness) | ||
PART 6 | |||
(6.1)The following statement is required only if you are a patient in a skilled nursing facilitya health care facility that provides the following basic services: skilled nursing care and supportive care to patients whose primary need is for availability of skilled nursing care on an extended basis. The patient advocate or ombudsman must sign the following statement: | |||
STATEMENT OF PATIENT ADVOCATE OR OMBUDSMAN | |||
I declare under penalty of perjury under the laws of California that I am a patient advocate or ombudsman as designated by the State Department of Aging and that I am serving as a witness as required by Section 4675 of the Probate Code. | |||
(date) | (sign your name) | ||
(address) | (print your name) | ||
(city)(state) | |||
The statutory advance health care directive form is as follows:
ADVANCE HEALTH CARE DIRECTIVE
(California Probate Code Section 4701)
Explanation
You have the right to give instructions about your own physical and mental health care. You also have the right to name someone else to make those health care decisions for you. This form lets you do either or both of these things. It also lets you express your wishes regarding donation of organs and the designation of your primary physician. If you use this form, you may complete or modify all or any part of it. You are free to use a different form.
Part 1 of this form is a power of attorney for health care. Part 1 lets you name another individual as agent to make health care decisions for you if you become incapable of making your own decisions or if you want someone else to make those decisions for you now even though you are still capable. You may also name an alternate agent to act for you if your first choice is not willing, able, or reasonably available to make decisions for you. (Your agent may not be an operator or employee of a community care facility or a residential care facility where you are receiving care, or your supervising health care provider or employee of the health care institution where you are receiving care, unless your agent is related to you or is a coworker.)
Unless the form you sign limits the authority of your agent, your agent may make all health care decisions for you. This form has a place for you to limit the authority of your agent. You need not limit the authority of your agent if you wish to rely on your agent for all health care decisions that may have to be made. If you choose not to limit the authority of your agent, your agent will have the right to:
(a)Consent or refuse consent to any care, treatment, service, or procedure to maintain, diagnose, or otherwise affect a physical or mental condition.
(b)Select or discharge health care providers and institutions.
(c)For all physical and mental health care, approve or disapprove diagnostic tests, surgical procedures, and programs of medication.
(d)Direct the provision, withholding, or withdrawal of artificial nutrition and hydration and all other forms of health care, including cardiopulmonary resuscitation.
(e)Donate your organs, tissues, and parts, authorize an autopsy, and direct disposition of remains.
Part 2 of this form lets you give specific instructions about any aspect of your health care, whether or not you appoint an agent. Choices are provided for you to express your wishes regarding the provision, withholding, or withdrawal of treatment to keep you alive, as well as the provision of pain relief. Space is also provided for you to add to the choices you have made or for you to write out any additional wishes. If you are satisfied to allow your agent to determine what is best for you in making end-of-life decisions, you need not fill out Part 2 of this form.
Part 3 of this form lets you express an intention to donate your bodily organs, tissues, and parts following your death.
Part 4 of this form lets you designate a physician to have primary responsibility for your health care.
After completing this form, sign and date the form at the end. The form shall be signed by two qualified witnesses or acknowledged before a notary public. Give a copy of the signed and completed form to your physician, to any other health care providers you may have, to any health care institution at which you are receiving care, and to any health care agents you have named. You should talk to the person you have named as agent to make sure that they understand your wishes and is willing to take the responsibility.
You have the right to revoke this advance health care directive or replace this form at any time.
* * * * * * * * * * * * * * * * | |||
PART 1 | |||
(1.1)DESIGNATION OF AGENT:I designate the following individual as my agent to make health care decisions for me: | |||
(name of individual you choose as agent) | |||
(address)(city)(state)(ZIP Code) | |||
(home phone) | (work phone) | ||
| |||
(name of individual you choose as first alternate agent) | |||
(address)(city)(state)(ZIP Code) | |||
(home phone) | (work phone) | ||
| |||
(name of individual you choose as second alternate agent) | |||
(address)(city)(state)(ZIP Code) | |||
(home phone) | (work phone) | ||
| |||
(name of individual you choose as mental health agent) | |||
(address)(city)(state)(ZIP Code) | |||
(home phone) | (work phone) | ||
| |||
(Add additional sheets if needed.) | |||
| |||
(1.4)AGENTS OBLIGATION:My agent shall make health care decisions for me in accordance with this power of attorney for health care, any instructions I give in Part 2 of this form, and my other wishes to the extent known to my agent. To the extent my wishes are unknown, my agent shall make health care decisions for me in accordance with what my agent determines to be in my best interest. In determining my best interest, my agent shall consider my personal values to the extent known to my agent. | |||
(1.5)AGENTS POSTDEATH AUTHORITY:My agent is authorized to donate my organs, tissues, and parts, authorize an autopsy, and direct disposition of my remains, except as I state here or in Part 3 of this form: | |||
(Add additional sheets if needed.) | |||
(1.6)NOMINATION OF CONSERVATOR: If a conservator of my person needs to be appointed for me by a court, I nominate the agent designated in this form. If that agent is not willing, able, or reasonably available to act as conservator, I nominate the alternate agents whom I have named, in the order designated. | |||
PART 2 | |||
If you fill out this part of the form, you may strike any wording you do not want. | |||
(2.1)ENDOFLIFE DECISIONS: I direct that my health care providers and others involved in my care provide, withhold, or withdraw treatment in accordance with the choice I have marked below: | |||
(a)Choice Not To Prolong Life | |||
I do not want my life to be prolonged if (1) I have an incurable and irreversible condition that will result in my death within a relatively short time, (2) I become unconscious and, to a reasonable degree of medical certainty, I will not regain consciousness, or (3) the likely risks and burdens of treatment would outweigh the expected benefits, OR | |||
(b)Choice To Prolong Life | |||
I want my life to be prolonged as long as possible within the limits of generally accepted health care standards. | |||
(2.2)RELIEF FROM PAIN:Except as I state in the following space, I direct that treatment for alleviation of pain or discomfort be provided at all times, even if it hastens my death: | |||
(Add additional sheets if needed.) | |||
WISHES FOR PHYSICAL AND MENTAL HEALTH CARE: (If you do not agree with any of the optional choices above and wish to write your own, or if you wish to add to the instructions you have given above, you may do so here.) I direct that: | |||
(Add additional sheets if needed.) | |||
PART 3 | |||
(3.1) Upon my death, I give my organs, tissues, and parts (mark box to indicate yes). By checking the box above, and notwithstanding my choice in Part 2 of this form, I authorize my agent to consent to any temporary medical procedure necessary solely to evaluate and/or maintain my organs, tissues, and/or parts for purposes of donation. | |||
My donation is for the following purposes (strike any of the following you do not want): (a)Transplant | |||
(b)Therapy | |||
(c)Research | |||
(d)Education | |||
If you want to restrict your donation of an organ, tissue, or part in some way, please state your restriction on the following lines: If I leave this part blank, it is not a refusal to make a donation. My state-authorized donor registration should be followed, or, if none, my agent may make a donation upon my death. If no agent is named above, I acknowledge that California law permits an authorized individual to make such a decision on my behalf. (To state any limitation, preference, or instruction regarding donation, please use the lines above or in Section 1.5 of this form). | |||
PART 4 | |||
(4.1)I designate the following physician as my primary physician: | |||
(name of physician) | |||
(address)(city)(state)(ZIP Code) | |||
(phone) | |||
| |||
(name of physician) | |||
(address)(city)(state)(ZIP Code) | |||
(phone) | |||
| |||
| |||
(5.1)EFFECT OF COPY:A copy of this form has the same effect as the original. | |||
(5.2)SIGNATURE:Sign and date the form here: | |||
(date) | (sign your name) | ||
(address) | (print your name) | ||
(city)(state) | |||
(5.3)STATEMENT OF WITNESSES:I declare under penalty of perjury under the laws of California (1) that the individual who signed or acknowledged this advance health care directive is personally known to me, or that the individuals identity was proven to me by convincing evidence, (2) that the individual signed or acknowledged this advance directive in my presence, (3) that the individual appears to be of sound mind and under no duress, fraud, or undue influence, (4) that I am not a person appointed as agent by this advance directive, and (5) that I am not the individuals health care provider, an employee of the individuals health care provider, the operator of a community care facility, an employee of an operator of a community care facility, the operator of a residential care facility for the elderly, nor an employee of an operator of a residential care facility for the elderly. | |||
First witness | Second witness | ||
(print name) | (print name) | ||
(address) | (address) | ||
(city)(state) | (city)(state) | ||
(signature of witness) | (signature of witness) | ||
(date) | (date) | ||
(5.4)ADDITIONAL STATEMENT OF WITNESSES:At least one of the above witnesses must also sign the following declaration: | |||
(signature of witness) | (signature of witness) | ||
PART 6 | |||
(6.1)The following statement is required only if you are a patient in a skilled nursing facilitya health care facility that provides the following basic services: skilled nursing care and supportive care to patients whose primary need is for availability of skilled nursing care on an extended basis. The patient advocate or ombudsman must sign the following statement: | |||
STATEMENT OF PATIENT ADVOCATE OR OMBUDSMAN | |||
I declare under penalty of perjury under the laws of California that I am a patient advocate or ombudsman as designated by the State Department of Aging and that I am serving as a witness as required by Section 4675 of the Probate Code. | |||
(date) | (sign your name) | ||
(address) | (print your name) | ||
(city)(state) | |||
|
Date
|
Status
|
|---|---|
| Sep 8, 2023 | Chaptered by Secretary of State - Chapter 171, Statutes of 2023. |
| Sep 8, 2023 | Approved by the Governor. |
| Aug 30, 2023 | Enrolled and presented to the Governor at 2:15 p.m. |
| Aug 24, 2023 | Senate amendments concurred in. To Engrossing and Enrolling. (Ayes 76. Noes 0. Page 2787.). |
| Aug 17, 2023 | In Assembly. Concurrence in Senate amendments pending. May be considered on or after August 19 pursuant to Assembly Rule 77. |
| Aug 17, 2023 | Read third time. Passed. Ordered to the Assembly. (Ayes 38. Noes 0. Page 2138.). |
| Jul 13, 2023 | Read second time. Ordered to Consent Calendar. |
| Jul 12, 2023 | From committee: Do pass. To Consent Calendar. (Ayes 11. Noes 0.) (July 11). |
| Jul 3, 2023 | From committee chair, with author's amendments: Amend, and re-refer to committee. Read second time, amended, and re-referred to Com. on JUD. |
| May 3, 2023 | Referred to Com. on JUD. |
| Apr 20, 2023 | In Senate. Read first time. To Com. on RLS. for assignment. |
| Apr 20, 2023 | Read third time. Passed. Ordered to the Senate. (Ayes 76. Noes 0. Page 1273.) |
| Apr 13, 2023 | Read second time. Ordered to Consent Calendar. |
| Apr 12, 2023 | Read second time and amended. Ordered returned to second reading. |
| Apr 11, 2023 | From committee: Amend, and do pass as amended. To Consent Calendar. (Ayes 11. Noes 0.) (April 11). |
| Mar 21, 2023 | In committee: Set, first hearing. Hearing canceled at the request of author. |
| Mar 2, 2023 | Referred to Com. on JUD. |
| Feb 16, 2023 | From printer. May be heard in committee March 18. |
| Feb 15, 2023 | Read first time. To print. |
|
Date
|
Description
|
Location
|
Votes
|
|
|---|---|---|---|---|
| Aug 24, 2023 | AB 1029 Pellerin Concurrence in Senate Amendments | Assembly Floor |
Passed |
|
| Aug 17, 2023 | Consent Calendar 2nd AB1029 Pellerin | Senate Floor |
Passed |
|
| Jul 11, 2023 | Do pass and be ordered to the Consent Calendar | Senate Standing Committee on Judiciary |
Passed |
|
| Apr 20, 2023 | AB 1029 Pellerin Consent Calendar Second Day | Assembly Floor |
Passed |
|
| Apr 11, 2023 | Do pass as amended. To Consent Calendar. | Assembly Standing Committee on Judiciary |
Passed |
This list shows positions taken on this bill by organizations on the date displayed, which is linked to the original source.
Positions by individuals are not included.
|
Organization
|
Position
|
Date
|
|---|---|---|
| CA Youth Empowerment Network | ** Support | |
| California Advocates for Nursing Home Reform | ** Support | |
| California Assoc. of Mental Health Peer Run Organizations | ** Support | |
| California Association for Nurse Practitioners | ** Support | |
| California Association of Social Rehabilitation Agencies | ** Support | |
| California Catholic Conference | ** Support | |
| California Pan - Ethnic Health Network | ** Support | |
| CAMHPRO | ** Support | |
| County of Santa Clara | ** Support | |
| Dbsa California | ** Support | |
| Depression And Bipolar Support Alliance | ** Support | |
| Disability Rights California | ** Support | |
| Mental Health America of California | ** Support | |
| National Association of Social Workers California Chapter | ** Support | |
| Steinberg Institute | ** Support |
CONCURRENCE IN SENATE AMENDMENTS
CSA1 Bill Id:AB 1029
Author:(Pellerin)
As Amended Ver:July 3, 2023
Majority vote
SUMMARY
Makes a number of helpful clarifications in the law related to mental health care decisions, specifically decisions that can be made by a third party on behalf of another individual.
Major Provisions
- Clarifies that "health care decision" does not include a decision made by a patient's agent, conservator, or surrogate to consent to treatments identified in Probate Section 4652.
- Clarifies, for purposes of the Probate Code dealing with an advance health care directive (AHCD), the following: "This Chapter does not prohibit the execution of a voluntary standalone psychiatric advance directive "
- Defines "psychiatric advance directive" to mean a legal document, executed on a voluntary basis by a person who has the capacity to make medical decisions and in accordance with the requirements for an AHCD, that allows a person with mental illness to protect their autonomy and ability to direct their own care by documenting their preferences for treatment in advance of a mental health crisis.
- States that, "It is the intent of the Legislature to promote the use of a psychiatric advance directive, subject to the requirements of this division, by a person who wants to make sure their health care providers know their treatment preferences in the event of a future mental health crisis."
- Amends the statutory AHCD form to include the following statement: "However, your agent will not be able to commit you to a mental health facility, or consent to convulsive treatment, psychosurgery, sterilization, or abortion for you."
Senate Amendments
- Define "psychiatric advance directive" as described in 3), above.
- Add the intent language in 4), above.
- Add findings and declarations on behalf of the Legislature.
COMMENTS
This bill, co-sponsored by Disability Rights California and Mental Health America of California, makes a number of helpful clarifications in the law related to mental health care decisions, specifically decisions that can be made by a third party on behalf of another individual by means of an advance health care directive (AHCD) or a Psychiatric Advance Directive (PAD).
Background on advance health care directives. An AHCD is a document providing guidance or instructions for making health care decisions that contains either an individual health care instruction, or a power of attorney for health care, or both. The AHCD may assist in guiding inpatient treatment decisions, and is recommended for all adults, regardless of their health status. The advantage of an AHCD is that it can articulate in detail the wishes of the individual for numerous circumstances related to health care treatment, including mental health treatment, and allows the individual to designate an appointed agent to make health care decisions on that person's behalf, should that person ever become incapacitated. An AHCD is generally only applicable when the individual no longer has the capacity to make their own health care decisions.
Existing law establishes the process, and provides a statutory form, for an individual to give instructions for health care decisions. (Probate Code Section 4670 et seq.) The AHCD form was created in 1999 by AB 891 (Alquist), Chapter 658. The form allows an individual, with capacity to make decisions, to select an agent to make health care decisions if the individual is not able to do so. The directive also allows the individual to make end-of-life health care choices, including the choice to prolong, or not prolong, life and to seek relief from pain. Providers also have some discretion in following an AHCD. They may decline to follow an AHCD if it would violate their professional standards of care or for "reasons of conscience." (Probate Code Sections 4734-4735.)
Mental illness and AHCD. Mental illness is prevalent in California. About one in six Californians experience mental illness, and one in 25 experience a serious mental illness. (California Budget & Policy Center, Mental Health in California: Understanding Prevalence, System Connections, Service Delivery, and Funding (March 2020).) Rates of hospitalizations due to mental illness are also increasing. (Ibid.)
Existing law allows individuals to specify advance directives for mental health and treatment using an AHCD. However, the model AHCD form provided under Probate Code Section 4670 only mentions "mental condition" once and contains no questions specific to mental health care or treatment. Existing law also places mental health-related limits on the AHCD. For example, an agent specified in an AHCD may not consent to a person's commitment to, or placement in, a mental health treatment facility, or consent to psychosurgery, or convulsive treatment. (Probate Code Section 4652.)
Psychiatric advance health care directives. Twenty-five states, though not California, have implemented standalone mental-health specific directives known as psychiatric advance directives (PADs). (Disability Rights California, Disability Rights California's Position Statement on the Lanterman-Petris-Short Act (Dec. 2021), available here.) PADs memorialize a person's preferences for future mental health treatment and allow for a proxy in the event of a mental health crisis. Though PADs vary by state, they may contain questions prompting an individual to specify whether, in the event they are incapable of consenting to mental health treatment, they consent to the use of specific psychotropic medications; the administration of electroconvulsive treatment; admission to a facility for mental health treatment; preferences for seclusion and restraint; and preferences for pre-emergency mental health interventions.
Mental health advocates, including Disability Rights of California and NAMI have recommended that California standardize PADs. The Mental Health Services and Oversight and Accountability Commission has begun to spur the use of PADs in California by funding a multi-county innovation program that seeks to understand the barriers to the successful implementation of PADs.
The bill. The bill does not create a standalone PAD. Rather, the bill amends the statutory AHCD form to include the following:
OPTIONAL: I choose to have a separate mental health agent for decisions related to mental health. I designate the following individual as my agent to make mental health care decisions for me: | ||
(name of individual you choose as mental health agent) | ||
_____ (address) _____ (city) _____ (state) _____ (ZIP Code) | ||
(home phone) | (work phone) | |
In addition to defining "health care decision" and "psychiatric advance directive," and making a number of legislative findings, the bill also amends the statutory AHCD form to include the following statement: "However, your agent will not be able to commit you to a mental health facility, or consent to convulsive treatment, psychosurgery, sterilization, or abortion for you."
According to the Author
An Advance Healthcare Directive is a legal document filled out by an individual to express the individual's preferences for medical treatment in the event that the individual is not able to express their preferences. While California law was recently amended to explicitly provide for Advance Health Directives to include mental health services, these provisions make more sense for end of life planning than for addressing mental health crises. By establishing Psychiatric Advance Directives (PADs) in California, AB 1029 will allow individuals to authorize a person to be an agent for mental health decision-making at times when they otherwise may not be able to, express their preferences on matters including psychoactive medication and treatment, and effectively communicate which treatments or interventions are most likely to be successful for that individual. Psychiatric Advance Directives will help facilitate the reduction in mental health crises severity, which will reduce engagements with the civil commitment and conservatorship legal processes, as well as reducing the potential for engagements with law enforcement and the criminal justice system.
Arguments in Support
Co-sponsor Disability Rights California writes the following to explain why the bill is necessary and important:
[W]hile California's statutory template for an AHCD includes questions regarding health care preferences, it does not include questions related to mental health care. Thus, when mental health care decisions are created within Advance Health Care Directives, the result is incomplete and fails to address issues critical to mental health care such as facility choice, provider choice, medication preferences, and emergency interventions.
AB 1029 will significantly increase the use and effectiveness of PADs in California by amending current California Health Care Decisions law to allow an individual to appoint a separate agent for mental health decision making, and thus facilitate discussions and documentation of mental health care preferences.
Arguments in Opposition
No opposition on file.
FISCAL COMMENTS
None
VOTES:
ASM JUDICIARY: 11-0-0
YES: Maienschein, Essayli, Connolly, Dixon, Haney, Kalra, Pacheco, Papan, Reyes, Robert Rivas, Sanchez
ASSEMBLY FLOOR: 76-0-4
YES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner Horvath, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Cervantes, Chen, Connolly, Megan Dahle, Davies, Dixon, Essayli, Flora, Mike Fong, Vince Fong, Friedman, Gipson, Grayson, Haney, Hart, Holden, Hoover, Irwin, Jackson, Jones-Sawyer, Kalra, Lackey, Lee, Low, Lowenthal, Maienschein, Mathis, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Jim Patterson, Joe Patterson, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Sanchez, Santiago, Schiavo, Soria, Ta, Ting, Valencia, Villapudua, Waldron, Wallis, Ward, Weber, Wilson, Wood, Zbur, Rendon
ABS, ABST OR NV: Gabriel, Gallagher, Garcia, Wicks
SENATE FLOOR: 38-0-2
YES: Allen, Alvarado-Gil, Archuleta, Ashby, Atkins, Becker, Blakespear, Bradford, Caballero, Cortese, Dahle, Dodd, Durazo, Glazer, Gonzalez, Grove, Hurtado, Jones, Limón, McGuire, Menjivar, Min, Newman, Nguyen, Niello, Ochoa Bogh, Padilla, Portantino, Roth, Rubio, Seyarto, Skinner, Smallwood-Cuevas, Stern, Umberg, Wahab, Wiener, Wilk
ABS, ABST OR NV: Eggman, Laird
UPDATED
VERSION: July 3, 2023
CONSULTANT: Alison Merrilees / JUD. / (916) 319-2334 FN: 0001233
SENATE RULES COMMITTEE Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 | AB 1029 |
CONSENT
Bill No: AB 1029
Author: Pellerin (D)
Amended: 7/3/23 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE: 11-0, 7/11/23
AYES: Umberg, Wilk, Allen, Ashby, Caballero, Durazo, Laird, Min, Niello, Stern, Wiener
ASSEMBLY FLOOR: 76-0, 4/20/23 (Consent) - See last page for vote
SUBJECT: Advance health care directive form
SOURCE: Disability Rights California
Mental Health America of California
DIGEST:
This bill clarifies that a person’s agent for health care decisions may not consent to certain types of treatment for the patient, and clarifies that a person may execute a standalone psychiatric health care directive.
ANALYSIS:
Existing law:
- Establishes the Health Care Decisions Law, which provides for the execution of advance directives to indicate preferences for health care treatment and/or the appointment of an agent to make health care decisions in the event of the executor’s incapacity. (Prob. Code, div. 4.5, §§ 4600 et seq.)
- Defines the following relative terms:
- An “advance health care directive” or “advance directive” means either an individual health care instruction or a power of attorney for health care. (Prob. Code, § 4605.)
- “Agent” means an individual designated by a power of attorney for health care to make a health care decision for the principal. (Prob. Code, § 4607.)
- “Capacity” means a person’s ability to understand the nature and consequences of a decision and to make and communicate a decision, and in the context of proposed health care, the ability to understand its significant benefits, risks, and alternatives. (Prob. Code, § 4609.)
- A “health care decision” is a decision made by a patient or the patient’s agent, conservator, or surrogate, regarding the patient’s health care, including (i) selection and discharge of health care providers and institutions, (ii) approval or disapproval of diagnostic tests, surgical procedures, and programs of medication, including mental health conditions, and (iii) directions to provide, withhold, or withdraw artificial nutrition and hydration and all other forms of health care, including cardiopulmonary resuscitation. (Prob. Code, § 4617.)
- An “individual health care instruction” or “individual instruction” is a patient’s written or oral direction concerning a health care decision for a patient. (Prob. Code, § 4623.)
- A “power of attorney for health care” is a written instrument designating an agent to make health care decisions for the principle. (Prob. Code, § 4629.)
- States that the Legislature finds all of the following:
- In recognition of the dignity and privacy a person has a right to expect, the law recognizes that an adult has the fundamental right to control the decisions relating to their own health care, including the decision to have life-sustaining treatment withheld or withdrawn.
- Modern medical technology has made possible the artificial prolongation of human life beyond natural limits. In the interest of protecting individual autonomy, this prolongation of the process of dying for a person for whom continued health care does not improve the prognosis for recovery may violate patient dignity and cause unnecessary pain and suffering, while providing nothing medically necessary or beneficial to the person.
- In the absence of controversy, a court is normally not the proper forum in which to make health care decisions, including decisions regarding life-sustaining treatment. (Prob. Code, § 4650.)
- Provides that the Health Care Decisions Law applies to health care decisions for adults who lack capacity to make decisions for themselves, and does not apply to:
- The right of an individual to make health decisions while having the capacity to do so.
- The law governing health care in an emergency.
- The law governing health care for unemancipated minors. (Prob. Code, § 4651.)
- Provides that the Health Care Decisions Law does not authorize consent to any of the following on behalf of a patient:
- Commitment to or placement in a mental health treatment facility.
- Convulsive treatment, as defined.
- Psychosurgery, as defined.
- Sterilization.
- Abortion. (Prob. Code, § 4652.)
- Provides procedures and requirements for the execution and revocation of advance health care directives and powers of attorney for health care, including that a written advance health care directive be either acknowledged before a notary public or signed by at least two witnesses, as specified. (Prob. Code, §§ 4670-4698.)
- Establishes the Community Assistance, Recovery, and Empowerment (CARE) Act, which, beginning October 1, 2023, establishes a process by which a person who is currently experiencing a severe mental illness, as defined, may be brought before a court for the creation of a CARE agreement to provide for their care and to establish and provide supports. (Welf. & Inst. Code, div. 5, pt. 8, §§ 5970 et seq.)
- Defines, within the CARE Act, a psychiatric advance directive as “a legal document, executed on a voluntary basis by a person who has the capacity to make medical decisions, that allows a person with mental illness to protect their autonomy and ability to self-direct care by documenting their preferences for treatment in advance of a mental health crisis,” and encourages the use of psychiatric advance directives throughout the CARE process. (Welf. & Inst. Code, § 5971(n); see generally id., §§ 5970-5987.)
This bill:
- Provides that a “health care decision” under the Health Care Decisions Law does not include a decision made by a patient’s agent, conservator, or surrogate to consent to the treatments.
- Provides that the Health Care Decisions Law’s provisions relating to advance health care directives (Chapter 1 of Part 2 of Division 4.7 of the Probate Code) does not prohibit the execution of a voluntary standalone psychiatric advance directive.
- Defines “psychiatric advance directive” as a legal document, executed on a voluntary basis by a person who has the capacity to make medical decisions and in accordance with the requirements for an advance health care directive, that allows a person with mental illness to protect their autonomy and ability to direct their own care by documenting their preferences for treatment in advance of a mental health crisis.
- States that it is the intent of the Legislature to promote the use of a psychiatric advance directive, subject to the requirements of the Health Care Decisions Law, by a person who wants to make sure their health care providers know their treatment preferences in the event of a future mental health crisis.
- States that the Legislature finds and declares all of the following:
- Research has demonstrated that the use of psychiatric advance directives improves collaboration, which improves outcomes, increases empowerment, and improves medication adherence.
- A psychiatric advance directive is most helpful when it includes reasons for preferring or opposing specific types of treatment.
- Mental health treatment preferences that do not constitute health care instructions or decisions, as defined, may provide valuable information to improve an individual’s mental health care.
Comments
California has long provided means by which a person can take control of their physical health care in the event they lose capacity. The Health Care Decisions Law allows a person to execute documents providing for their health care preferences, to appoint an agent to make health care decisions for them, or both, in the event that they become incapacitated.[1]
The Health Care Decisions Law does place some guardrails on what types of treatment may be consented to through the use of an advance health care directive. Specifically, current law does not consent on behalf of the patient for commitment to, or placement in, a mental health facility; convulsive treatment or psychosurgery; sterilization; or abortion.[2] This bill further clarifies that a “health care decision” made by a patient’s agent, conservator, or surrogate does not include their consent to those treatments. This measure makes clear that a third party may make these highly personal decisions on a patient’s behalf.
Additionally, the Health Care Decisions Law does not clearly set forth boundaries for the use of a psychiatric advance directive, which is akin to an advance health care directive for mental health treatment. The CARE Court procedure implemented last year contemplates that participants in the CARE Court process may execute psychiatric advance directives, but does not provide specifics about how they should be executed or their scope.[3] And modifications to the statutory advance health care directive form made last year in AB 2288 (Choi, Chapter 21, Statutes of 2022) added references to tests, procedures, and medications for mental health conditions, but again did not add any statutory clarity regarding how mental health treatments should be addressed as part of an advance health care directive. Furthermore, seven counties in the state are engaging in a pilot project to develop a user-friendly online tool for psychiatric advance directives, with the goal of expanding access to psychiatric advance directives and making them more accessible.[4]
This bill does not implement a full framework for psychiatric advance directives. The issues presented by mental health treatment options—such as whether a person can give consent in advance to being medicated against their consent later, or whether the current prohibition on allowing an agent to consent to commitment should be kept in place—are nuanced and require special attention. This bill is, however, intended to make clear that individuals can execute standalone psychiatric advance directives, separate from advance health care directives, that allow a person to document their preferences for treatment in advance of a mental health crisis even though they are not expressly provided for in the Health Care Decisions Law. This bill also states that it is the intent of the Legislature to promote the use of psychiatric advance directives.
FISCAL EFFECT: Appropriation: No Fiscal Com.: No Local: No
SUPPORT: (Verified 7/13/23)
Disability Rights California (co-source)
Mental Health America of California (co-source)
California Advocates for Nursing Home Reform
California Association for Nurse Practitioners
California Association of Social Rehabilitation Agencies
California Catholic Conference
CAMHPRO
County of Santa Clara
Depression and Bipolar Support Alliance
National Association of Social Workers – California Chapter
OPPOSITION: (Verified 7/13/23)
None received
ARGUMENTS IN SUPPORT: According to Disability Rights California:
A Psychiatric Advance Directive (PAD) is a legal document created by an individual that specifies that person’s preferences regarding mental health treatment in the event of a future mental health crisis. This can include information about medications known to be effective, an individual’s preferences for emergency care, and more. PADs are demonstrated to reduce the need for coercive interventions during mental health crises and increase participants’ feelings of autonomy, self-determination and empowerment. PADs can also improve mental health outcomes by facilitating conversations between mental health providers and an individual in mental health crisis.
California law currently includes language clarifying that adults may document advance planning for mental health care decision making through an Advance Health Care Directive (AHCD). Yet, while California’s statutory template for an AHCD includes questions regarding health care preferences, it does not include questions related to mental health care. Thus, when mental health care decisions are created within Advance Health Care Directives, the result is incomplete and fails to address issues critical to mental health care such as facility choice, provider choice, medication preferences, and emergency interventions.
AB 1029 will significantly increase the use and effectiveness of PADs in California by amending current California Health Care Decisions law to allow an individual to appoint a separate agent for mental health decision making, and thus facilitate discussions and documentation of mental health care preferences.
ASSEMBLY FLOOR: 76-0, 4/20/23
AYES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner Horvath, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Cervantes, Chen, Connolly, Megan Dahle, Davies, Dixon, Essayli, Flora, Mike Fong, Vince Fong, Friedman, Gipson, Grayson, Haney, Hart, Holden, Hoover, Irwin, Jackson, Jones-Sawyer, Kalra, Lackey, Lee, Low, Lowenthal, Maienschein, Mathis, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Jim Patterson, Joe Patterson, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Sanchez, Santiago, Schiavo, Soria, Ta, Ting, Valencia, Villapudua, Waldron, Wallis, Ward, Weber, Wilson, Wood, Zbur, Rendon
NO VOTE RECORDED: Gabriel, Gallagher, Garcia, Wicks
Prepared by: Allison Whitt Meredith / JUD. / (916) 651-4113
8/7/23 13:32:15
**** END ****
Prob. Code, §§ 4670-4698. ↑
Id., § 4652. ↑
See SB 1338 (Umberg, Ch. 319, Stats. 2022). ↑
See PADSCA.org, https://www.padsca.org/. Link current as of July 13, 2023. ↑
Senator Thomas Umberg, Chair
2023-2024 Regular Session
Bill No: AB 1029 (Author:Pellerin)
Version: July 3, 2023
Hearing Date: July 11, 2023
Fiscal: No
Urgency: No
Consultant: AWM
SUBJECT
Advance health care directive form
DIGEST
This bill clarifies that a person’s agent for health care decisions may not consent to certain types of treatment for the patient, and clarifies that a person may execute a standalone psychiatric health care directive.
EXECUTIVE SUMMARY
An advance health care directive is a document, executed by a person with the capacity to do so, that provides guidance or instructions for treatment preferences, or appointing a power of attorney for health care, or both. Existing law establishes the process, and provides a statutory form, for an individual to give instructions for health care decisions through an advance health care directive. The statutes make clear that certain types of treatments may not be consented to on behalf of a patient, including commitment or placement in a mental health treatment facility, sterilization, and abortion.
The current statutory advance health care directive framework and form make reference to mental health care and treatment decisions, but do not flesh out in detail what treatment decisions may be covered; the form itself does not contain any questions specific to mental health treatment. Additionally, according to the author and sponsors, psychiatric advance directives can be useful for individuals who do not want to execute a full advance health care directive.
This bill is intended to do two things. First, it clarifies that a person’s agent, conservator, or surrogate may not, pursuant to an advance health care directive, consent to commitment or placement in a mental health facility, convulsive treatment, psychosurgery, sterilization, or abortion on behalf of a patient. Second, it clarifies that a person may execute a standalone psychiatric advance directive without executing a full advance health care directive, and states the Legislature’s intent to promote the use of psychiatric advance directives.
This bill is sponsored by Disability Rights California and Mental Health America of California, and is supported by California Advocates for Nursing Home Reform, the California Association of Social Rehabilitation Agencies, the California Association for Nurse Practitioners, the California Catholic Conference, CAMHPRO, the County of Santa Clara, the Depression and Bipolar Support Alliance, and the National Association of Social Workers – California Chapter. There is no known opposition.
PROPOSED CHANGES TO THE LAW
Existing law:
- Establishes the Health Care Decisions Law, which provides for the execution of advance directives to indicate preferences for health care treatment and/or the appointment of an agent to make health care decisions in the event of the executor’s incapacity. (Prob. Code, div. 4.5, §§ 4600 et seq.)
- Defines the following relative terms:
- An “advance health care directive” or “advance directive” means either an individual health care instruction or a power of attorney for health care. (Prob. Code, § 4605.)
- “Agent” means an individual designated by a power of attorney for health care to make a health care decision for the principal. (Prob. Code, § 4607.)
- “Capacity” means a person’s ability to understand the nature and consequences of a decision and to make and communicate a decision, and in the context of proposed health care, the ability to understand its significant benefits, risks, and alternatives. (Prob. Code, § 4609.)
- A “health care decision” is a decision made by a patient or the patient’s agent, conservator, or surrogate, regarding the patient’s health care, including (1) selection and discharge of health care providers and institutions, (2) approval or disapproval of diagnostic tests, surgical procedures, and programs of medication, including mental health conditions, and (3) directions to provide, withhold, or withdraw artificial nutrition and hydration and all other forms of health care, including cardiopulmonary resuscitation. (Prob. Code, § 4617.)
- An “individual health care instruction” or “individual instruction” is a patient’s written or oral direction concerning a health care decision for a patient. (Prob. Code, § 4623.)
- A “power of attorney for health care” is a written instrument designating an agent to make health care decisions for the principle. (Prob. Code, § 4629.)
- States that the Legislature finds all of the following:
- In recognition of the dignity and privacy a person has a right to expect, the law recognizes that an adult has the fundamental right to control the decisions relating to their own health care, including the decision to have life-sustaining treatment withheld or withdrawn.
- Modern medical technology has made possible the artificial prolongation of human life beyond natural limits. In the interest of protecting individual autonomy, this prolongation of the process of dying for a person for whom continued health care does not improve the prognosis for recovery may violate patient dignity and cause unnecessary pain and suffering, while providing nothing medically necessary or beneficial to the person.
- In the absence of controversy, a court is normally not the proper forum in which to make health care decisions, including decisions regarding life-sustaining treatment. (Prob. Code, § 4650.)
- Provides that the Health Care Decisions Law applies to health care decisions for adults who lack capacity to make decisions for themselves, and does not apply to:
- The right of an individual to make health decisions while having the capacity to do so.
- The law governing health care in an emergency.
- The law governing health care for unemancipated minors. (Prob. Code, § 4651.)
- Provides that the Health Care Decisions Law does not authorize consent to any of the following on behalf of a patient:
- Commitment to or placement in a mental health treatment facility.
- Convulsive treatment, as defined.
- Psychosurgery, as defined.
- Sterilization.
- Abortion. (Prob. Code, § 4652.)
- Provides procedures and requirements for the execution and revocation of advance health care directives and powers of attorney for health care, including that a written advance health care directive be either acknowledged before a notary public or signed by at least two witnesses, as specified. (Prob. Code, §§ 4670-4698.)
- Establishes the Community Assistance, Recovery, and Empowerment (CARE) Act, which, beginning October 1, 2023, establishes a process by which a person who is currently experiencing a severe mental illness, as defined, may be brought before a court for the creation of a CARE agreement to provide for their care and to establish and provide supports. (Welf. & Inst. Code, div. 5, pt. 8, §§ 5970 et seq.)
- Defines, within the CARE Act, a psychiatric advance directive as “a legal document, executed on a voluntary basis by a person who has the capacity to make medical decisions, that allows a person with mental illness to protect their autonomy and ability to self-direct care by documenting their preferences for treatment in advance of a mental health crisis,” and encourages the use of psychiatric advance directives throughout the CARE process. (Welf. & Inst. Code, § 5971(n); see generally id., §§ 5970-5987.)
This bill:
- Provides that a “health care decision” under the Health Care Decisions Law does not include a decision made by a patient’s agent, conservator, or surrogate to consent to the treatments.
- Provides that the Health Care Decisions Law’s provisions relating to advance health care directives (chapter 1 of part 2 of division 4.7 of the Probate Code) does not prohibit the execution of a voluntary standalone psychiatric advance directive.
- Defines “psychiatric advance directive” as a legal document, executed on a voluntary basis by a person who has the capacity to make medical decisions and in accordance with the requirements for an advance health care directive, that allows a person with mental illness to protect their autonomy and ability to direct their own care by documenting their preferences for treatment in advance of a mental health crisis.
- States that it is the intent of the Legislature to promote the use of a psychiatric advance directive, subject to the requirements of the Health Care Decisions Law, by a person who wants to make sure their health care providers know their treatment preferences in the event of a future mental health crisis.
- States that the Legislature finds and declares all of the following:
- Research has demonstrated that the use of psychiatric advance directives improves collaboration, which improves outcomes, increases empowerment, and improves medication adherence.
- A psychiatric advance directive is most helpful when it includes reasons for preferring or opposing specific types of treatment.
- Mental health treatment preferences that do not constitute health care instructions or decisions, as defined, may provide valuable information to improve an individual’s mental health care.
COMMENTS
- Author’s comment
According to the author:
Last year, AB 2288 (Choi), Chapter 21, Statutes of 2022), added to Advance Health Care Directive laws by including specific references to mental health treatment. AB 2288 had good intentions but there are unfortunate consequences to simply adding “mental health” without tailoring the law to include treatment preferences appropriate for a person in a mental health crisis. AB 1029 further establishes advance directives specific to psychiatric treatment by defining the term in statute as a tool to help communicate mental health patients’ treatment preferences to providers during a mental health crisis.
2. This bill clarifies that an advance health care directive may not give a patient’s agent the authority to consent to certain types of procedures
California has long provided means by which a person can take control of their physical health care in the event they lose capacity. The Health Care Decisions Law allows a person to execute documents providing for their health care preferences, to appoint an agent to make health care decisions for them, or both, in the event that they become incapacitated.[1]
The Health Care Decisions Law does place some guardrails on what types of treatment may be consented to through the use of an advance health care directive. Specifically, current law does not consent on behalf of the patient for commitment to, or placement in, a mental health facility; convulsive treatment or psychosurgery; sterilization; or abortion.[2] This bill further clarifies that a “health care decision” made by a patient’s agent, conservator, or surrogate does not include their consent to those treatments. This measure makes clear that a third party may make these highly personal decisions on a patient’s behalf.
3. This bill clarifies that a person may execute a psychiatric advance directive and states the intent of the Legislature to promote such directives
A psychiatric advance directive is akin to an advance health care directive for mental health treatment. Psychiatric advance directives set out in advance, at a time when the person has the capacity to do so, a person’s mental health treatment preferences; the psychiatric advance directive can then help guide mental health professionals if and when the person’s mental illness deteriorates to a point that they are no longer capable of giving consent to treatment. According to stakeholders, psychiatric advance directives can be particularly useful when they provide information about the patient’s prior medication history and which medications are, or are not, effective; a mental health professional with this information is less likely to prescribe a medication that will be less effective or have negative side effects, which in turn can increase treatment adherence.
Although many states have codified statutes for the implementation of psychiatric advance directives, California has not formally done so. The CARE Court procedure implemented last year contemplates that participants in the CARE Court process may execute psychiatric advance directives, but does not provide specifics about how they should be executed or their scope.[3] And modifications to the statutory advance health care directive form made last year in AB 2288 (Choi, Ch. 21, Stats. 2022) added references to tests, procedures, and medications for mental health conditions, but again did not add any statutory clarity regarding how mental health treatments should be addressed as part of an advance health care directive. Additionally, seven counties in the state are engaging in a pilot project to develop a user-friendly online tool for psychiatric advance directives, with the goal of expanding access to psychiatric advance directives and making them more accessible.[4]
This bill does not implement a full framework for psychiatric advance directives. The issues presented by mental health treatment options—such as whether a person can give consent in advance to being medicated against their consent later, or whether the current prohibition on allowing an agent to consent to commitment should be kept in place—are nuanced and require special attention. This bill is, however, intended to make clear that individuals can execute standalone psychiatric advance directives, separate from advance health care directives, that allow a person to document their preferences for treatment in advance of a mental health crisis even though they are not expressly provided for in the Health Care Decisions Law. The bill also states that it is the intent of the Legislature to promote the use of psychiatric advance directives.
4. Arguments in support
According to Disability Rights California, one of the co-sponsors of the bill:
A Psychiatric Advance Directive (PAD) is a legal document created by an individual that specifies that person’s preferences regarding mental health treatment in the event of a future mental health crisis. This can include information about medications known to be effective, an individual’s preferences for emergency care, and more. PADs are demonstrated to reduce the need for coercive interventions during mental health crises and increase participants’ feelings of autonomy, self-determination and empowerment. PADs can also improve mental health outcomes by facilitating conversations between mental health providers and an individual in mental health crisis.
California law currently includes language clarifying that adults may document advance planning for mental health care decision making through an Advance Health Care Directive (AHCD). Yet, while California’s statutory template for an AHCD includes questions regarding health care preferences, it does not include questions related to mental health care. Thus, when mental health care decisions are created within Advance Health Care Directives, the result is incomplete and fails to address issues critical to mental health care such as facility choice, provider choice, medication preferences, and emergency interventions.
AB 1029 will significantly increase the use and effectiveness of PADs in California by amending current California Health Care Decisions law to allow an individual to appoint a separate agent for mental health decision making, and thus facilitate discussions and documentation of mental health care preferences.
SUPPORT
Disability Rights California (co-sponsor)
Mental Health America of California (co-sponsor)
California Advocates for Nursing Home Reform
California Association of Social Rehabilitation Agencies
California Association for Nurse Practitioners
California Catholic Conference
CAMHPRO
County of Santa Clara
Depression and Bipolar Support Alliance
National Association of Social Workers – California Chapter
OPPOSITION
None known
RELATED LEGISLATION
Pending Legislation: SB 35 (Umberg, 2023) modifies the definition of “psychiatric advance directive” within the CARE Act to clarify that a psychiatric advance directive must be executed in accordance with the requirements of the Health Care Decision law and clarifies that it allows a person to direct their own care. SB 35 is pending before the Assembly Judiciary Committee.
Prior Legislation: SB 1338 (Umberg, Ch. 319, Stats. 2022) established the CARE Act, which included the use of psychiatric advance directives.
AB 2288 (Choi, Ch. 21, Stats. 2022) clarified that advance health care directives may include mental health treatment preferences, modified the statutory advanced health care directive form accordingly, and made more prominent the requirement that an advanced health care directive be either notarized or witnessed by two qualified individuals
PRIOR VOTES:
Assembly Floor (Ayes 76, Noes 0)
Assembly Judiciary Committee (Ayes 11, Noes 0)
**************
Prob. Code, §§ 4670-4698. ↑
Id., § 4652. ↑
See SB 1338 (Umberg, Ch. 319, Stats. 2022). ↑
See PADSCA.org, https://www.padsca.org/. Link current as of July 6, 2023. ↑
Date of Hearing: April 11, 2023
ASSEMBLY COMMITTEE ON JUDICIARY
Brian Maienschein, Chair
ABPCA Bill Id:AB 1029
Author:(Pellerin) – As Introduced Ver:February 15, 2023
PROPOSED CONSENT (As Proposed to be Amended)
SUBJECT: Advance health care directive form: MENTAL HEALTH
KEY ISSUE: SHOULD THE LAW FURTHER CLARIFY, by AMENDING THE STATUTORY ADVANCE HEALTH CARE DIRECTIVE FORM, THAT A PATIENT’S HEALTH CARE AGENT CANNOT CONSENT TO CERTAIN TREATMENTS, SUCH AS COMMITMENT TO A MENTAL HEALTH FACILITY, PSYSHOSURGERY AND convulsive treatment?
SYNOPSIS
An advance health care directive (AHCD) is a document providing guidance or instructions for making health care decisions that contains either an individual health care instruction, or a power of attorney for health care, or both. Existing law establishes the process, and provides a statutory form, for an individual to give instructions for health care decisions through an AHCD. Existing law allows individuals to use an AHCD to specify directives pertaining to mental health and treatment. However, the model AHCD form only mentions “mental condition” once and contains no questions specific to mental health care or treatment.
Mental illness is prevalent in California. About one in 25 Californians experience a serious mental illness. Twenty-five states, though not California, have implemented standalone mental-health specific directives known as Psychiatric Advance Directives (PADs). PADs offer several advantages, including facilitating conversations between health care providers and a patient in the event of a psychiatric emergency. The completion of PADs with a mental health care provider may lead to improved outcomes, including experiencing fewer crisis interventions, such as police transport, involuntary commitment, seclusions, and restraints.
The bill in print seeks to amend the AHCD form that is codified in the Probate Code to include more information about designating a third party to make mental health care decisions. Several stakeholders have expressed concern about this approach, believing that it would create further confusion in the law. As proposed to be amended, the bill would do three things: 1) clarify that “health care decision” does not include a decision made by a patient’s agent, conservator, or surrogate to consent to specified medical treatments; (2) clarify, for purposes of the Chapter of the Probate Code dealing with an AHCD, the following: “Nothing in this Chapter shall prohibit the execution of a voluntary standalone Psychiatric Advance Directive as defined in Subdivision (n) of Section 5971 of the Welfare and Institutions Code”; and (3) amend the statutory AHCD form to include the following statement: “However, your agent will not be able to commit you to a mental health facility, or consent to convulsive treatment, psychosurgery, sterilization, or abortion for you.” The amendments are included in the summary of the bill, below, and explained in the analysis. Co-sponsored by Disability Rights California and Mental Health American of California, the bill is also supported by a number of mental health, health, and disability advocacy organizations. It has no opposition on file.
SUMMARY: Makes a number of helpful clarifications in the law related to mental health care decisions, specifically decisions that can be made by a third party on behalf of another individual. Specifically, this bill:
- Clarifies that “health care decision” does not include a decision made by a patient’s agent, conservator, or surrogate to consent to treatments identified in Probate Section 4652.
- Clarifies, for purposes of the Chapter of the Probate Code dealing with an AHCD, the following: “Nothing in this Chapter shall prohibit the execution of a voluntary standalone Psychiatric Advance Directive as defined in Subdivision (n) of Section 5971 of the Welfare and Institutions Code.”
- Amends the statutory AHCD form to include the following statement: “However, your agent will not be able to commit you to a mental health facility, or consent to convulsive treatment, psychosurgery, sterilization, or abortion for you.”
EXISTING LAW:
- Provides that an AHCD is either an individual health care instruction or a power of attorney for health care. (Probate Code Section 4605. All further statutory references are to the Probate Code, unless otherwise indicated.)
- Defines “health care” as any care, treatment, services, or procedure to maintain, diagnose, or otherwise affect a patient's physical or mental condition. (Section 4615.)
- Defines “individual health care instruction” as an individual’s authorized written or oral direction concerning a health care decision for the individual. (Section 4623.)
- Defines “health care decision” as a decision made by an individual or an individual’s agent, conservator, or surrogate, regarding that individual’s health care, including selection and discharge of health care providers and institutions, approval or disapproval of diagnostic tests, surgical procedures, and programs of medication, and directions to provide, withhold, or withdraw artificial nutrition and hydration and all other forms of health care, including cardiopulmonary resuscitation. (Section 4617.)
- Provides that an adult having capacity may execute a power of attorney for health care, which may authorize the agent to make health care decisions. (Section 4671.)
- States that consent to any of the following on behalf of a patient is not authorized:
- Commitment to or placement in a mental health treatment facility.
- Convulsive treatment (as defined in Section 5325 of the Welfare and Institutions Code).
- Psychosurgery (as defined in Section 5325 of the Welfare and Institutions Code).
- Sterilization.
- Abortion. (Section 4652.)
- Creates a statutory advance health care directive form that includes instructions for completion, allows an individual to choose a power of attorney for health care (an agent), provide instructions for end-of-life decisions, and specifies preferences related to donations of organs at death. (Section 4701.)
- Institutes specified requirements for the legal sufficiency of a written advance health care directive, including that the advance directive is either acknowledged before a notary public or signed by at least two witnesses who satisfy specified requirements. (Section 4673 (a).)
- Defines “Psychiatric advance directive” to mean a legal document, executed on a voluntary basis by a person who has the capacity to make medical decisions, that allows a person with mental illness to protect their autonomy and ability to self-direct care by documenting their preferences for treatment in advance of a mental health crisis. (Welfare & Institutions Code Section 5971 (n).)
FISCAL EFFECT: As currently in print this bill is keyed non-fiscal.
COMMENTS: This bill, co-sponsored by Disability Rights California and Mental Health American of California, makes a number of helpful clarifications in the law related to mental health care decisions, specifically decisions that can be made by a third party on behalf of another individual by means of an Advanced Health Care Directive (AHCD) or a Psychiatric Advance Directive (PAD). According to the author:
An Advance Healthcare Directive is a legal document filled out by an individual to express the individual’s preferences for medical treatment in the event that the individual is not able to express their preferences. While California law was recently amended to explicitly provide for Advance Health Directives to include mental health services, these provisions make more sense for end of life planning than for addressing mental health crises. By establishing Psychiatric Advance Directives (PADs) in California, AB 1029 will allow individuals to authorize a person to be an agent for mental health decision-making at times when they otherwise may not be able to, express their preferences on matters including psychoactive medication and treatment, and effectively communicate which treatments or interventions are most likely to be successful for that individual. Psychiatric Advance Directives will help facilitate the reduction in mental health crises severity, which will reduce engagements with the civil commitment and conservatorship legal processes, as well as reducing the potential for engagements with law enforcement and the criminal justice system.
Background on advance health care directives. An AHCD is a document providing guidance or instructions for making health care decisions that contains either an individual health care instruction, or a power of attorney for health care, or both. The AHCD may assist in guiding inpatient treatment decisions, and is recommended for all adults, regardless of their health status. The advantage of an AHCD is that it can articulate in detail the wishes of the individual for numerous circumstances related to health care treatment, including mental health treatment, and allows the individual to designate an appointed agent to make health care decisions on that person's behalf, should that person ever become incapacitated. An AHCD is generally only applicable when the individual no longer has the capacity to make their own health care decisions.
Advance care directive statutes began in California in 1976 with the adoption of the first living will statute. Following California, all states enacted some sort of advance directive, such as a living will, power of attorney, or both. (Sabatino, The Evolution of Health Care Advance Planning Law and Policy (June 2010) The Milbank Quarterly.) On a federal level, the origin of advance health directives legislation began with the decision in the case Cruzan v. Director, Missouri Department of Health (1990) 497 U.S. 261. In this case, the parents of Nancy Cruzan, who was in a persistent vegetative state following a car accident, sought to remove her feeding tube. The state refused, arguing that they did not have evidence of her end-of-life wishes. The Court concurred with the state’s decision, arguing that clear and convincing evidence of a patient’s preferences was required for the removal of life support. Following that decision, Congress passed the federal Patient Self-Determination Act of 1990 (PSDA) to promote the use of written AHCDs by health care institutions, though private doctors were exempt.
Existing law establishes the process, and provides a statutory form, for an individual to give instructions for health care decisions. (Probate Code Section 4670 et seq.) The AHCD form was created in 1999 by AB 891 (Alquist), Chap. 658. The form allows an individual, with capacity to make decisions, to select an agent to make health care decisions if the individual is not able to do so. The directive also allows the individual to make end-of-life health care choices, including the choice to prolong, or not prolong, life and to seek relief from pain. Providers also have some discretion in following an AHCD. They may decline to follow an AHCD if it would violate their professional standards of care or for “reasons of conscience.” (Probate Code Sections 4734-4735.)
Mental illness and AHCD. Mental illness is prevalent in California. About one in six Californians experience mental illness, and one in 25 experience a serious mental illness. (California Budget & Policy Center, Mental Health in California: Understanding Prevalence, System Connections, Service Delivery, and Funding (March 2020).) Rates of hospitalizations due to mental illness are also increasing. (Ibid.) Moreover, California has one of the highest rates of involuntary detentions due to mental illness among the 25 states who report such data. (Lee and Cohen, Incidences of Involuntary Psychiatric Detentions in 25 U.S. States (2021) Psychiatric Services.)
Existing law allows individuals to specify advance directives for mental health and treatment using an AHCD. However, the model AHCD form provided under Section 4670 only mentions “mental condition” once and contains no questions specific to mental health care or treatment. Existing law also places mental health-related limits on the AHCD. For example, an agent specified in an AHCD may not consent to a person’s commitment to, or placement in, a mental health treatment facility, or consent to psychosurgery, or convulsive treatment. (Probate Code Section 4652.)
Psychiatric advance health care directives. Twenty-five states, though not California, have implemented standalone mental-health specific directives known as Psychiatric Advance Directives (PADs). (Disability Rights California, Disability Rights California's Position Statement on the Lanterman-Petris-Short Act (Dec. 2021), available here.) PADs memorialize a person’s preferences for future mental health treatment and allow for a proxy in the event of a mental health crisis. Though PADs vary by state, they may contain questions prompting an individual to specify whether, in the event they are incapable of consenting to mental health treatment, they consent to the use of specific psychotropic medications; the administration of electroconvulsive treatment; admission to a facility for mental health treatment; preferences for seclusion and restraint; and preferences for pre-emergency mental health interventions.
These forms offer several advantages. First, similar to an AHCD, a PAD may allow an individual to retain autonomy over treatment choices in psychiatric emergencies. Second, in the event of a psychiatric crisis resulting in hospitalization, a PAD may facilitate a conversation with the patient about their treatment. An overburdened emergency room is a non-ideal context to learn about a patient’s wishes, and this facilitation may get a patient the care they need more quickly, reducing their time to stability. (Substance Abuse and Mental Health Services Administration, A Practical Guide to Psychiatric Advance Directives (2019).) Third, PADs may address inequities in mental health care. People of color are hospitalized for psychiatric reasons at a higher rate than whites, and PADs could be a mechanism to reduce the likelihood of unnecessary involuntary treatment and help ensure that any treatment provided is what the patient has previously requested. (Ibid.)
The completion of PADs with a mental health care provider may also have pre-crisis benefits. The conversation around completing a PAD between a provider and a patient specifically has been found to provide therapeutic benefits. In one randomized control trial, individuals who had completed PADS through a conversation with a facilitator (versus those who did not complete a PAD) demonstrated significant improvement in their relationship with their mental health care provider and experienced fewer crisis interventions, such as police transport, involuntary commitment, seclusions, and restraints. (Swanson, et al., Psychiatric advance directives and reduction of coercive crisis interventions (2008) Journal of Mental Health.)
Mental health advocates, including Disability Rights of California and NAMI have recommended that California standardize Psychiatric Advanced Directives. The Mental Health Services and Oversight and Accountability Commission has begun to spur the use of PADs in California by funding a multi-county innovation program that seeks to understand the barriers to the successful implementation of PADs. As explained below, this goal is particularly pressing given that last year’s legislation, SB 1338, authorizing the creation of CARE Courts, specifically referenced PADs, and AB 2288, authorizing an agent to make psychiatric health care decisions on behalf of a person who signs an AHCD.
CARE Court legislation referenced PADS. Last year, SB 1338 (Umberg), Chap. 319, Stats. 2022, enacted the Community Assistance, Recovery, and Empowerment (CARE) Court Program. CARE Court was intended to “provide a vital solution to ensure access to comprehensive services and supports for some of the most ill and most vulnerable Californians.” SB 1338 codified the term “psychiatric advance directive” (PAD) for the first time, and uses it at several points in its language. SB 1338 defined the term itself (WIC Section 5971 (n)); defined “graduation plan” in a manner that may include a PAD (Id. at (h), WIC Section 5977.3 (a)(3)(A)); allowed a supporter to be present in any “meeting, judicial proceeding, status hearing, or communication related to . . .[e]stablishing a [PAD]” (WIC Section 5981 (a)(3)); required the department State Department of Health Care Services to provide training and technical assistance to county behavioral health agencies regarding PADs (WIC Section 5983 (b)); required annual CARE Act data from the trial courts to include the number, rates, and trends of PADs created for participants with active CARE plans (WIC Section 5985 (e)(15)); and included the number of PADs in the annual metrics to determine the effectiveness of the CARE Act model. (Id. at (f)(1)).
SB 1338 defined “psychiatric advance directive” to mean “a legal document, executed on a voluntary basis by a person who has the capacity to make medical decisions, that allows a person with mental illness to protect their autonomy and ability to self-direct care by documenting their preferences for treatment in advance of a mental health crisis.” (Welfare & Institutions Code Section 5971 (n).) The definition does not, however, put any limitations on what “preferences” a person can and cannot document in a PAD. Arguably, the definition should take into account that a third party cannot agree to certain treatments related to mental health, such as commitment to or placement in a mental health treatment facility; convulsive treatment; and psychosurgery. (Section 4652.)
Given that PAD is now defined in the law, it would seem to make sense to further clarify that a person’s preference documented in a PAD are subject to the limitations of Section 4652. As the bill moves forward, the author may wish to consider amending the definition of a PAD.
AB 2288 and the confusion in the law that it arguably created or furthered. Last year, AB 2288 (Choi), Chapter 21, Statutes of 2022, was signed into law. As of January 1, 2023, the power to make a “health care decision” can be delegated to a third party, and is defined to include the power for, “Approval or disapproval of diagnostic tests, surgical procedures, and programs of medication, including mental health conditions.” (Section 4617 (b).) AB 2288 also made relatively minor amendments to the statutory AHCD form, codified at Section 4701, to inform signatories that they “have the right to name someone to make [physical and mental health care] decisions for you.” (Section 4701.) However, AB 2288 did not seek to clarify how its provisions—and the authority it created (or arguable just clarified) intersected with other provisions of existing law that limit the ability of an agent to make mental health care decisions on behalf of another person, such as the limitations set forth in Section 4652 specified above.
This Committee’s analysis of AB 2288 pointed out that AB 2288 did not address the full panoply of mental health care decisions and issues that should be addressed by a PAD. It stated:
Though existing law includes mental health and treatment within the AHCD statute, Psychiatric Advance Directives offer distinct advantages for individuals at risk of mental health crises. If this bill moves forward, the author may wish to consider creating a standalone Psychiatric Advance Directive statutory form and promoting its use. [Emphasis in original.]
The bill. The bill in print does not create a standalone PAD, as the Committee suggested in its analysis of AB 2288. Rather, the bill in print amends the statutory AHCD form to include the following:
OPTIONAL: I choose to have a separate mental health agent for decisions related to mental health. I designate the following individual as my agent to make mental health care decisions for me: | ||
(name of individual you choose as mental health agent) | ||
_____ (address) _____ (city) _____ (state) _____ (ZIP Code) | ||
(home phone) | (work phone) | |
Several stakeholders have expressed concern about inserting this language within the statutory AHCD form. First, not all patients who need or want an AHCD need or want a PAD. Second, the language above does not take into account the limitations of Section 4652 explained above. While it is possible that more information could be added to the statutory AHCD form to further explain the rights that it does and does not confer related to mental health care, the more information that is added, the more confusing (and less relevant) it becomes to those wishing to execute an AHCD, but not wanting or needing a PAD. The concerns were summed up by California Advocates for Nursing Home Reform, who write the following in their letter expressing Support for the bill “if amended.”
While we have concerns that the current bill language could lead to AHCDs that are confusing to health care consumers and providers, we are hopeful the bill will evolve to provide more statutory support for psychiatric advance directives in California.
Author’s amendments. The author has wisely opted to remove the statutory changes to the AHCD, above, from the bill. Instead, as proposed to be amended, the bill would do the following:
- Clarify that “health care decision” does not include a decision made by a patient’s agent, conservator, or surrogate to consent to treatments identified in Probate Section 4652.
This is a helpful clarification of the limitations in existing law on the ability of third parties to make health care decisions, including decisions about mental health care, as explained in detail above.
- Clarify, for purposes of the Chapter of the Probate Code dealing with an AHCD, the following: “Nothing in this Chapter shall prohibit the execution of a voluntary standalone Psychiatric Advance Directive as defined in Subdivision (n) of Section 5971 of the Welfare and Institutions Code.”
This is a helpful clarification of the law which aligns with the preference of stakeholders (and the Committee) that if existing law is going to be amended to include statutory language creating a PAD template, it should be separate and distinct from an AHCD.
- Amend the statutory AHCD form to include the following statement: “However, your agent will not be able to commit you to a mental health facility, or consent to convulsive treatment, psychosurgery, sterilization, or abortion for you.”
This is a helpful clarification of the limitations in existing law on the ability of third parties to make health care decisions, including decisions about mental health care, as explained in detail above.
As this important bill moves forward, it is hoped that stakeholders will work together to create a standalone Psychiatric Advance Directive statutory form and promote its use.
ARGUMENTS IN SUPPORT: Co-sponsor Disability Rights California writes the following to explain why the bill is necessary and important:
[W]hile California’s statutory template for an AHCD includes questions regarding health care preferences, it does not include questions related to mental health care. Thus, when mental health care decisions are created within Advance Health Care Directives, the result is incomplete and fails to address issues critical to mental health care such as facility choice, provider choice, medication preferences, and emergency interventions.
AB 1029 will significantly increase the use and effectiveness of PADs in California by amending current California Health Care Decisions law to allow an individual to appoint a separate agent for mental health decision making, and thus facilitate discussions and documentation of mental health care preferences.
REGISTERED SUPPORT / OPPOSITION:
Support
Disability Rights California (co-sponsor)
Mental Health America of California (co-sponsor)
CA Youth Empowerment Network
California Assoc. of Mental Health Peer Run Organizations (CAMHPRO)
California Association of Social Rehabilitation Agencies
California Catholic Conference
California Pan - Ethnic Health Network
DBSA California
National Association of Social Workers, California Chapter
Steinberg Institute
Support If Amended
California Advocates for Nursing Home Reform
Opposition
None on file
Analysis Prepared by: Alison Merrilees / JUD. / (916) 319-2334
Bill Author
Bill Co-Author(s):