Guide for Family & Whanau
- Legal Information
- The Form
- Talk about these things
- Advance directives and the Mental Health Act
- General issues of competence
- Diminished competence
- Involving the medical profession
- More information
"Advance directives provide another safety net for the person you love and care about"
Maxine Gay, Family Reference Group, Mental Health Commission.
For families, there is nothing to fear in advance directives, because they are a useful tool for recovery.
Families and friends may be involved in developing an advance directive, if they are asked by a service user. A service user, like anyone else, does not have to tell his or her family about their advance directive. However, many do involve their families and, in most cases, advance directives work well for families.
Families may feel they are in a difficult position if they find out when treatment they disagree with is being provided. Health providers may also feel they are put in a difficult position if this occurs. For this reason, the Mental Health Commission advises service users to talk about their ideas with family, whÄnau and friends, when developing an advance directive.
Talk about these things
Families and friends can then discuss the treatment preferences with the service user. This is an opportunity to talk about:
- the circumstances the advance directive is intended to apply to
- the implications for the service user, of the choices they are making
- the implications for the family of the choices that are made
- alternative treatment possibilities
- alternative ways of expressing those preferences
- when the directive will be reviewed or revised
- the circumstances when it might be cancelled or changed
- how it will be cancelled or changed
- whether it will have an automatic expiry date.
An advance directive can be valid even if the family or the doctor does not agree with the treatment choices.
A hospital cannot refuse to follow an advance directive simply because a service user has been unwell since it was first written.
Advance directives and the Mental Health Act
The Mental Health Act (MH Act) forces people with mental illness to be assessed and treated. It is only supposed to be used if someone is a danger to themselves or others. Under the MH Act, health professionals are obliged to try to gain consent for assessment and treatment from all service users. Being under the MH Act, does not automatically mean that your family member lacks the competence to make treatment decisions.
General issues of competence
If family members have reasonable grounds to question the competence of a service user to make this particular decision, or to question whether the service user is making this decision of his or her own free will, then these concerns should be raised with the person. If you cannot resolve these issues, then you could record your concerns and the reasons for them. These notes may become useful if the validity of the advance directive is later questioned by another provider or the courts.
Family members and caregivers must be careful not to draw conclusions about a service user’s competence, or their susceptibility to undue influence, based solely on personal feelings about the service user’s choices. Right 7(2) of the Health and Disability Code states that:
"Every consumer must be presumed competent to make an informed choice and give informed consent, unless there are reasonable grounds for believing that the consumer is not competent."
Diminished competence
Depending on the nature of the health-care choice, diminished competency will not necessarily invalidate an advance directive. Certain choices may still be valid.
Example
An advance directive might instruct future providers not to administer any medication to a service user, or it might refuse to allow students to be present during any procedure. While it might be shown later that the service user was not competent at the time to make decisions regarding medication, s/he might still have been competent to make decisions about participating in teaching programmes. Right 7(3) of the Health and Disability Code states:
"Where a consumer has diminished competence, that consumer retains the right to make informed choices and give informed consent, to the extent appropriate to his or her level of competence."
Involving the medical profession
Families are advised to encourage their family member to include the medical professional who is most familiar with them in the process, to help ensure that decisions are informed and workable. That also provides:
- a witness to your family member’s competence to make the decision
- some protection from the possibility of undue influence
- safeguards to ensure that the decision is made with the relevant medical information
- a source of advice for other providers as to whether any new medical information would have affected the service user’s decision
- a means of regularly reviewing and updating the decision
- a witness as to the types of situation your family member intended the directive to cover
- a means of ensuring that the directive contains sufficiently accurate instructions for other providers.
More Information
The Mental Health Commission and the Health and Disability Commission have a pamphlet ‘Advance directives in mental health care and treatment: Information for mental health service users’. You can download the document here or www.hdc.govt.nz, or you can get a copy from the Mental Health Commission.
Contributors
The Mental Health Commission thanks the Family Reference Group for their advice and comments on the material on this page.
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