Overview
In your advance directive you can set out specific advance instructions regarding care that you authorize, and care that you refuse, if you require care in the future and are incapable of making informed decisions about your care at that time. If you have an agent you trust, and who understands your values and preferences regarding health care, you may not see any need to include such additional instructions. However, for those persons who do not have a health care agent, and for those who have very specific directions that they wish to give regarding their care, even if they have an agent, this section can be very important. This may be particularly true for individuals who have a mental illness, and have experienced problems in dealing with health care providers and who therefore want to set out clear guidance on what they feel is acceptable for them and what is not.
Your Instructions vs. Treatment Authorized by Other Laws
The instructions that you set out establish what health care you accept and what health care you do not accept. Your agent cannot authorize or refuse treatment contrary to what you set out in your instructions, and health care providers cannot treat you in a way that is contrary to what you set out in your instructions UNLESS there is a separate legal authority to treat you differently. For example, you may set out in your instructions that you refuse to consent to inpatient psychiatric treatment. This instruction does not prevent someone from seeking, and a court (after the procedures required by statute) from ordering, your involuntary commitment to a psychiatric facility and your treatment in that facility. (See Section 54.1-2983.3(C) regarding this.)
Your Instructions vs. Physician’s Judgment on Appropriate Treatment
A doctor is not required to treat you in the manner that you direct in advance if the doctor finds that your instructions are medically or ethically inappropriate. In such a case, the physician is required to make reasonable efforts to inform you or your agent of the doctor’s finding and the reasons for it. If you or your agent and the doctor are unable to find an agreeable resolution, the doctor must make a “reasonable effort” to transfer you to another physician who is willing to comply with your instructions. During that effort, the doctor must continue to provide care, within the bounds of what the doctor finds to be medically and ethically appropriate. (See Section 54.1-2990 regarding this.)
Getting More Specific - Attachments to the Advance Directive
Most advance directive forms do not provide a lot of space for your instructions. For people with particular physical or mental health conditions, who want to provide more specific directions about particular aspects of their care, more space may be needed. It is perfectly acceptable for you to attach documents to your Advance Directive, but you should sign any such attachment, and have 2 adult witnesses sign it, in the same way that the advance directive is signed, to ensure that it is honored by health care providers. If you have a mental health condition, and want to give more specific information and instructions about your treatment, especially in crisis situations, the “extended” advance directive form, which is discussed on the “Forms” and “The Basics” pages of this website, provides additional space, and guidance, to help you set out those instructions.
The “Psychiatric Advance Directive” (PAD)
The concept of the PAD: The advance directive can be a particularly powerful planning tool for a person who has mental illness and who may experience episodes of incapacity due to that illness. Some states have established in their statutes a separate legal document known as a “Psychiatric Advance Directive” (PAD), which is devoted exclusively to the issue of a person’s mental health care in the event of incapacity. PAD’s are unlike general health care advance directives in two key respects: (1) they provide (at the option of the individual) very specific instructions to health care providers on how best to respond when that individual has a mental health crisis, including the individual’s advance consent to and refusal of certain medications and other treatments (at the individual’s option); (2) they do not address physical health issues, end-of-life issues, organ donation, or appointment of an agent, which require use of a separate form or forms.
Virginia’s inclusion of psychiatric care in the advance directive: Unlike the approach taken by most states, Virginia has specifically incorporated mental health care, including psychiatric hospitalization, into the “suggested” advance directive form. The advance directive’s list of powers that are granted to the agent in the event of your incapacity specifically includes the power of the agent to give consent for your mental health care, and for your psychiatric hospitalization (for up to 10 days, after which a commitment hearing would be required to decide whether further hospital care should be authorized). You may, at your option, delete these powers from the list of powers you give to your agent. (Given the possibility of future dementia and the resulting need for mental health care that we all face, you should think carefully about the consequences before removing such powers from the authority of your agent. See more discussion of this on the “Agent Powers” page of this website.) You may also, at your option, give specific instructions about your mental health care, in addition to your general health care, to guide your agent and your providers in the event you become incapacitated.
Virginia’s “Extended” Advance Directive Form for Persons with Mental Illness: An “extended” advance directive form has been developed in Virginia which incorporates many of the specific provisions for handling mental health crises that are found in the PAD’s used in other states. The extended form, however, also includes the other components of a standard advance directive form: appointment of an agent for all forms of health care decision-making, instructions about other kinds of health care, and organ donation. While this form is long, it is comprehensive. For more discussion about the extended form, go to the “Forms” page of this website.
Limits of the Advance Directive and the Importance of Collaboration with Your Treatment Provider
While you can give instructions through your advance directive regarding the treatments to which you do and do not give consent, you do not have limitless authority to dictate in your advance directive the treatment that your treatment providers must provide, any more than you can dictate such treatment when you are fully competent. Doctors are not obligated to provide treatment that they determine is medically or ethically inappropriate, or that is contrary to law. (See Section 54.1-2990 regarding this.) In addition, treatment that is contrary to your instructions may be provided in certain emergency circumstances, or when authorized by the order of a court or special justice, following a petition and hearing (such as involuntary commitment or judicial authorization of treatment), or as otherwise authorized by law. See Section 54.1-2983.3(C) regarding this. However, as Section 54.1-2983.3(C) also sets out, your advance directive “shall be given full effect to the extent that it does not conflict with such provisions, or any other provision of law”. Given this, it’s important that you collaborate with your treatment provider in filling out your instructions for mental health care, to better ensure that your treatment providers can and will respond to your instructions in the way that you want.