Health Care Directives
in Minnesota
Patricia M. Siebert
Minnesota Disability Law Center,
Federal Protection and Advocacy
System for Minnesota
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Your Right to Bodily Integrity
“ No right is held more sacred, or is more
carefully guarded by the common law, then
the right of every individual to the possession
and control of his own person, free from all
restraint or interference of others, unless by
clear and unquestionable authority of law.”
Minnesota Supreme Court,1976
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What is an “Advance” Directive?
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A legal document with instructions/ directives on
medical care, written in advance of the anticipated
need
A person can name a decision-making agent to carry
out instructions (in Minnesota)
Directive usually goes into effect when a person
lacks the mental capacity to make informed
decisions about medical care
Incapacity decision is usually made by doctor
Minnesota has two types:
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The Advance Psychiatric Directive (or
“declaration”) applies only to ECT and
antipsychotic medications
The Health Care Directive applies to health
care decisions, including other mental health
decisions, and end of life decisions.
Advance Psychiatric Directive (APD)
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“A competent adult may make a written
declaration of preferences or instructions
regarding intrusive MH tx”. Minnesota
Statute §253B.03, Subd. 6d.
Applies only to decisions about treatment
with neuroleptic medications and ECT
Courts have extended it to newer
antipsychotics, such as Risperdol, Zyprexa
Health Care Directive (HCD)
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Minnesota Statutes Chapter 145C
Much broader in scope than APD; APD is
incorporated by reference into the HCD
HCD can direct physical and mental health
care, and end of life decisions
May give agent the authority to make health
care decisions, even while having capacity
APD and HCD Legal Basics
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Executed by a person with capacity to do so
(legal presumption of capacity)
In writing, signed and dated, two witnesses
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APD: “the declarant understands the nature and
significance of the declaration”
HCD alternate execution-- signature before notary
Both may designate a proxy or agent
Both can be made part of the medical record
Legal basics, continued:
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A directive may be revoked at any time while
a person has the capacity to do so
(destruction, written revocation, verbally
before 2 witnesses, later directive)
In Minnesota, a directive cannot be revoked
during a time of incapacity
“Inactivates” when person regains capacity
Definitions of Note
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“Decision-making capacity” is ability to understand
the significant risks, benefits, and alternatives to
proposed health care and to make and communicate
a health care decision.” 145C.02, Subd 1b
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“Health care” means any care, treatment , service or
procedure to maintain, diagnose or otherwise affect
a person’s physical or mental condition”, including
one’s abode. 145C.02, Subd. 4
Other Requirements
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Witness may not be the agent/proxy and at least one
witness may not be a provider at the time of signing
Agent/proxy cannot be one’s attending provider at
time of execution or activation
A directive from another state that meets these basic
requirements is viewed as a legally sufficient, valid
directive (145C.04)
Obligations of Providers
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Provider must obtain informed consent if the person
is capable of giving it
HCD: provider must act in good faith per applicable
standards of care (145C.11)
APD: comply to the “fullest extent possible,
consistent with reasonable medical practice, the
availability of treatments requested, and applicable
law.” (253B.03, Subd 6d(c))
If unwilling at any time to comply, the provider must
promptly notify the person and document in record.
Legal Presumptions (145C.10)
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Person is presumed to have the capacity to
execute a HCD/APD absent clear and
convincing evidence to the contrary
Presumption that HCD is valid absent clear
and convincing evidence to the contrary
Providers are presumed to be acting in good
faith absent clear and convincing evidence to
the contrary
Legal Immunity for:
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Agent acting in good faith reliance on directive
Provider relying on directive in good faith and within
standards of care is not subject to criminal
prosecution, civil liability or professional discipline
Ditto for provider relying on decisions made by an
agent the provider believes is acting in good faith
A provider administering intrusive MH treatment in
“good faith reliance” on an APD is held harmless
from liability if later finding of invalidity
Life Sustaining Care (145C.15)
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HCD can (should!) have instructions
regarding nutrition, hydration and other end
of life decisions
The provider must provide the directed care
or transfer the care to another provider
willing to provide care.
Provider must notify the agent if unwilling to
comply and document notification in record
Other Instructions may include:
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Instructions/ authorization of agent to make
decisions regarding intrusive MH tx
Instructions about physical and other mental health
treatment, including hospitalization, nursing home
Authorizing agent to act even though the person
retains decision-making capacity
Note--naming an agent also acts as a nomination of
guardian unless otherwise stated in HCD, but final
decision on guardian is up to judge.
Other instructions may include:
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Instructions as to how pregnancy will affect
health care decisions
Instructions as to when someone other than
the attending physician may activate the
directive, if the principal depends on prayer
for care of disease, or the principal is in a
health care facility
Record Access
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HCD may permit or limit the agent to review
and disclose medical records and may have
instructions regarding disclosure.
HIPAA promotes the use of HCD’s.
Provisions facilitate record access
“consistent with prior expressed wishes
known to the provider”. 45 CFR §164.510
Penalties
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Gross misdemeanor for willfully
concealing/canceling HCD, withholding
knowledge of a revocation, falsifying a HCD,
coercing execution of a HCD or
requiring/prohibiting HCD as a condition of
receiving services
Felony if one of the above actions results in
bodily harm to the person
Court Orders and Medications
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The provider “may subject a declarant to intrusive
treatment in a manner contrary to the declarant’s
expressed wishes only upon order of the court”.
253B.03, Subd.6d(d)
But court must follow valid directive. 253B.092
Emergency medication by physician (“necessary to
prevent serious, immediate physical harm to the
patient or others”) is limited to 14 days or through the
first court hearing. 253B.092, Subd. 3
Court cases about directives
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Vermont law allowed directive of committed
MI patient to be superseded after 45 days, if
“no significant improvement”. This standard
was not applied to others with HCDs
2nd Circuit found that Vermont law violated
the ADA: cannot treat HCD differently
because person is later committed.
Hargrave v. Vermont, 340 F.3d 27 (2nd Cir. 2003)
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MN cases focus on agent/guardian issues
Duke Study on Directives (Psychiatric
News, July 15, 2005)
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1,000 persons in outpatient MH care in 5
locations throughout the country
4-13% with HCDs; 65-77% wanted one
Those completing HCDs were more likely to
have “high insight” (1.9), a rep payee (3.0),
had been transported by police to treatment
(2.3), or faced pressure to keep their
appointments (1.8)
What did the directives say?
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121actual HCDs randomized from publicsector settings
98% alerted doctors to at least one crisis
symptom
88% named a hospital they would go to;
62% named hospitals they would refuse
50% instructed staff on how to avoid
seclusion and restraint
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94% gave advance consent for at least
one medication; 77% also rejected at least
one medication
“No one refused all medications, but no one
liked Haldol.” Dr. Eric Elbogen
75% listed side effects experienced on
particular medications
62% refused to consent to ECT
Psychiatrists in NC surveyed:
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2/3 said they would honor a HCD, but
believed HCDs would be used for refusal
70% would follow a HCD if the patient had
concerns about drug side effects
Only 40% would follow one if the HCD “as
written” sounded “psychotic” and the patient
had a history of violence
http://pad.duhs.duke.edu
Why have an Advance Directive?
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Operationalizes patient choice
Opportunity to have your best idea of a crisis
prevention plan that works
Opportunity to authorize in advance who you
want to receive/release information
Can incorporate your legal arrangements for
care of your children, finances, pets
Everyone needs to think about end of life
decisions.
Give me an idea of what some good
instructions might be.
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Get me help if I start to bounce checks and order
lots of stuff from TV ads.
I do not want any injections because I am afraid
of shots but am OK with pills.
If I’m hospitalized, I want to be at Abbott, where I
know and trust the staff.
Because of past abuse, I cannot be put into
restraints. This would worsen my condition.
What might a “suspect”
directive look like?
I will not eat any hospital food because I know
it’s poisoned
 I will not take any medications because doctors
are really CIA agents
 I want Oprah Winfrey to be my proxy
An irrational directive will raise questions
about validity!!
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Why have a proxy/agent?
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To see that your instructions are carried out
To work with care providers at a time when it
is very hard for you to do so
A proxy means a more flexible directive
A proxy can be anyone you trust (with some
exceptions)
How long is a directive in effect?
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When your condition is such that you have
regained the capacity to make informed
decisions, your directive is no longer in effect
In the health care directive, you can authorize
your Proxy/Agent to make decisions for you
even at a time when you have the capacity to
make your own decisions
Can I prepare a directive in the hospital or
under commitment?
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Under the law a person is assumed competent –
even if committed
If you are under a Jarvis order, you are legally
incompetent to make medication decisions.
Directives should not be filled out when your
judgment is impaired
Directives CAN be filled out as part of a
discharge plan if you are doing well
Who should have a copy of my
directive?
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Federal law requires that health care providers
make the directive you give them a part of your
medical chart
Those involved with your care/treatment
Your Agent/Proxy
Case Manager? Hospital? Family/Friends?
Keep your copy of the directive in a safe,
accessible spot and carry a wallet card with you
What if I refuse to go along with things I
put in my directive?
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A Proxy/Agent can work with providers to
implement your instructions and make other
decisions as needed
Treatment providers have an obligation to follow
your directive, but may defer to the courts
Providers can file a petition for commitment and
to administer medications, but a directive can
have an affect on what the court decides
Tips for a successful directive:
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Complete a draft or two before filling out the real
thing
Sign and date the directive in front of two witnesses,
age 18 or older
At least one witness must be someone who does
NOT provide care/services to you on the day you
sign the directive
Your witnesses should be able to confirm your
capacity at the time of signing
Important considerations
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A directive can be an effective relapse
prevention/crisis intervention plan, including
hospitalization and medication
An agent given flexibility can address contingencies
not in the directive
Directives can coordinate other aspects of
incapacity—children, finances, etc.
A directive does not give a person different or more
rights than otherwise entitled to, but can help you get
what you do have a right to.
REMEMBER
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A directive is a tool for you to make decisions
now about things that may happen in the future
A directive does not give you more than you are
otherwise entitled to, so be realistic in the
instructions you put in the directive
Make sure those who need to know have a copy
Update your directive regularly, especially when
there are changes in your life!!!
Resources
LawMoose has various MN forms for living wills and
HCDs:
http://www.lawmoose.com/index.cfm?Action=Library.
&Topic=mn180116
 Minnesota Disability Law Center:
Intake: 1-800-292-4150 or 612-334-5790; may
answer questions but cannot draft directives for you.
Directive: http://www.mylegalaid.org/wpcontent/uploads/2009/01/minnesota-advancepsychiatric-directive-and-health-care-directive.pdf
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