In its last legislative session, the Georgia General Assembly enacted a new set of laws known as the Psychiatric Advance Directive Act (the “Act”). O.C.G.A. § 37-11-1 et seq. The Act is a formal recognition of an individual’s fundamental right to have power over decisions relating to his or her mental healthcare and intended to close gaps in Georgia’s existing advance directive laws, which did not expressly address mental health treatment. At the bottom, psychiatric advance directives (“PADs”) allow individuals with mental health disorders to state their treatment preferences and make decisions about the mental healthcare they may receive in the future when they are not capable of making informed or rational decisions. When used effectively, PADs can be a valuable tool to build trust and improve communication between providers and patients. While the Act includes numerous provisions that insulate providers from civil and criminal liability in relation to a provider’s decision to adhere to or disregard PAD directives, the Act also places affirmative obligations on providers to document certain events and interactions with patients who have created PADs. Accordingly, providers should ensure that they adhere to the Act’s documentation requirements.
Like other types of advance directives (e.g.,, healthcare advance directives, durable powers of attorney, or living wills), a PAD is a written document that must be signed and appropriately witnessed. The General Assembly included within the Act a standard form that individuals may (but are not required to) use to create a PAD. PADs are highly customizable, meaning individuals may include as much or as little information in their PADs as they deem appropriate. Among other things, PADs may identify:
- the individual’s mental health diagnosis and common symptoms;
- prior situations that have caused the individual to experience a mental health crisis;
- historical treatments that have been successful or unsuccessful;
- certain treatments or medication regimes that should be avoided;
- a particular provider who should be contacted or consulted in the event of a mental health crisis;
- a preferred treatment provider or facility; and
- other individuals who should be contacted in the event of a mental health crisis.
Individuals may also appoint a mental healthcare agent. If a mental healthcare agent is appointed, the agent typically is empowered to make all mental healthcare decisions that the individual would be able to make for himself or herself when capable. Importantly, the agent’s powers spring into effect only when the individual is incapable. An agent may make different or contrary decisions with PAD directives only in certain limited circumstances, as outlined in the Act.
Once effective, the PAD will remain active until revoked. An individual may revoke his or her PAD only when capable. Revocation can occur in several ways, including the creation of a subsequent inconsistent PAD, physical destruction, and written or oral revocation that clearly expresses the individual’s intent to revoke. Importantly, if the individual is receiving mental healthcare in a facility, revocation becomes effective only once communicated to the attending provider by the individual or a person acting at the individual’s direction. Absent specific knowledge of revocation or invalidity, a provider may presume that the PAD is valid. Providers are not subject to criminal or civil liability for good-faith compliance with PAD directives even if the PAD was revoked, absent the provider’s actual knowledge of such revocation.
The Need to Document
Once a provider becomes aware of the existence of a PAD, the provider or facility must make the PAD part of the individual’s medical record. Any revocation of a PAD also should be documented in the medical record, including the time and manner in which the provider learned of such revocation.
Even for those individuals who have created a valid PAD, providers should continue to obtain the individual’s consent to all mental healthcare decisions if the individual is capable of providing consent or refusal. If, however, the individual is incapable, providers are then authorized to act consistent with the PAD directives. Thus, providers should clearly document the basis for all mental healthcare treatment decisions, including whether the provider’s treatment decisions are based on the PAD and/or the agent’s directives during times when the individual is incapable, or alternatively are based on the individual’s stated preferences during times when he or she is capable.
When acting under the authority of a PAD, providers are required to comply with PAD directives to the fullest extent possible unless the mental health are is: (1) unavailable; (2) medically contraindicated in a manner that would result in substantial harm to the patient if administered; or (3) in the opinion of the provider, the care is inconsistent with reasonable medical standards to benefit the individual or has proven ineffective in treating the individual’s condition. Thus, PADs do not unilaterally override providers’ clinical judgment. Nevertheless, if a provider determines not to follow the PAD’s (or an agent’s) directives, the provider should: (1) clearly document the reason for not following the directive in the individual’s medical record; and (2) promptly notify the individual (and agent if one is appointed) of the provider’s refusal to follow the PAD (or agent’s instructions), and document in the medical record that the notification was provided and when such notification was provided.
In sum, providers should document the existence, modification, and/or revocation of PADs, and this documentation should be included within the individual’s medical record. Providers also should document those instances when treatment decisions are based on PAD or agent directives, and providers would be well-served to document that the provider decided at the time treatment is provided or withheld whether the individual was capable or incapable. Finally, in those instances where the provider refuses to follow or otherwise deviates from PAD and/or agent directives, the provider should clearly document the reason(s) for not following the directive and that the provider notified the individual or individual’s agent of such refusal. Providers who adhere to these documentation steps will be in the best position to benefit from the Act’s baked-in liability protections.