Health Choices for the Future
- Most people are competent
- Discuss with family/whānau
- Write it down
- Get it signed
- When to make an advance directive
- How to make an advance directive
- A valid advance directive
- Informed consent
- Consent and refusals
- Legal status
- People who ARE NOT under the Mental Health Act
- People who ARE under the Mental Health Act
- How to make an advance directive
- What is an enduring power of attorney?
- Recovery plans, crisis plans and advance directives - what’s the difference?
- More information
Everyone has the right to make choices about their future health care. An advance directive says what treatment is acceptable before it is needed. It spells out what treatment a person agrees to, and what treatment they do not consent to receive if they become unwell in the future.
An advance directive only applies when a person is not competent to make all the decisions that are needed about their health care. When the person is competent again, an advance directive does not apply, because they can make their own decisions.
All competent people have the right to make an advance directive – and most people with mental illness are competent.
To make an advance directive, people must:
- be competent to make health treatment decisions
- have enough information to decide about their treatment
- make decisions of their own free will.
Most people are competent
Most people with mental illness are competent all of the time, and almost everyone is competent most of the time. Bring competent means a person:
- understands their diagnosis and previous treatment (even if they do not agree with that diagnosis)
- can make choices by weighing up different options
- understands the consequences of their decisions.
A person can be competent even if they are under the Mental Health (Compulsory Assessment and Treatment) Act 1992 (MH Act). Compulsory treatment does not make people legally incompetent.
Discuss with family/whānau
We suggest that people discuss their plans with family/whānau so they understand what treatment is wanted, and and why. If a person wants someone to have a specific role in their treatment, they should talk to them first to get their agreement.
Write it down
An advance directive is more likely to be followed if it written down, so that doctors who are involved in a consumer’s treatment can read it and know what treatment was agreed to and what treatment was refused.
Get it signed
We recommend that people discuss their treatment choices with their doctor, and ask him or her to sign the advance directive to confirm that they are:
- competent, and
- free from undue influence, and
- sufficiently informed about the treatment choices they are making.
This will increase the chance that the people caring for a service user will follow the directive.
If a doctor or other professional does not sign to say the person is competent, then other doctors and nurses won’t know if they should follow it later on, because they won’t know if the person was competent when it was written.
Right 7(2) of the Health and Disability Code states:
"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."
We recommend that people get a doctor to confirm that they are competent by signing their advance directives.
A doctor does not have to agree with the choices that are made to sign an advance directive. A signature simply confirms that the service user was competent at the time the advance directive was made.
When to make an advance directive
People are advised to make advance directives when they are well, so there is no doubt about their competence. If an advance directive is given when a person is very unwell, their competence to make the directive is more likely to be challenged, and the advance directive may not be followed.
How to make an advance directive
You can make an advance directive by completing the FORM for an Advance Directive on this website. You don’t need a lawyer to make an advance directive.
A valid advance directive
To be valid, an advance directive depends on:
- competence - whether the person was competent to make the directive when they made it; and
- freedom from undue influence – whether the person who made the directive was free from undue influence; and
- sufficient information – whether the person had sufficient information to make the particular directive they made; and
- application to current circumstances – whether the person intended their directive to apply to the present circumstances.
If an advance directive meets all these criteria, it is valid, even if clinicians or family disagree with the choices it makes.
Informed consent
Informed consent is a process that comprises competence, disclosure, understanding, voluntariness and consent. The process of informed consent is embodied in three essential elements under the Health and Disability Code:
- effective communication between the parties (Right 5)
- provision of all necessary information to the consumer, including information about options, risks and benefits (Right 6)
- the consumer's freely given and competent consent (Right 7).
Consent and refusals
Advance directives can have both advance consents to treatment and advance refusals. Advance consents state what treatment may be given. Advance refusals name the treatments that are not wanted. Refusing life-saving treatment raises difficult issues, because it brings into conflict:
- a person’s fundamental right to refuse medical treatment under the New Zealand Bill of Rights Act; and
- the ethical and legal obligations on doctors (including the MH Act) to provide the necessaries of life.
Legal status
Advance directives are allowed in New Zealand under common law. This means that while there is no law that specifically allows advance directives, people have always had the right to make choices about the treatment they receive. The Health and Disability Code supports that right. Advance directives have not yet been tested in New Zealand courts.
People who ARE NOT under the Mental Health Act
If a mental health service user is not under the MH Act, clinicians should follow an advance directive unless they have good evidence of at least one of the following conditions:
- The person was not competent when they made the advance directive.
- The person did not have enough information to make decisions about treatment.
- The treatment they consented to is not useful ("clinically indicated") for treating their condition.
- The treatment that was refused is the only good treatment, if that person is a danger to him or herself, or others.
- The treatment they want is not provided by the public health system, or cannot be provided at the time when the advance directive would apply.
- The person did not make the advance directive of his or her own free will.
- The person did not intend the advance directive to cover the present situation.
- The advance directive has expired.
If a doctor does not follow an advance directive, ask them to explain their decision, in person and in writing. If you do not accept the explanation, you can complain to the Health and Disability Commissioner.
People who ARE under the Mental Health Act
People can be competent even if they are under the MH Act.
Doctors can override an advance directive if someone is under the MH Act, but they must still seek the person’s agreement to each aspect of treatment, as they would at any other time.
The Commission recommends that people make an advance directive, even if they may be put under the MH Act in the future. At the very least, this advance directive will tell others what treatment is preferred.
How to make an advance directive
Anyone can make an advance directive by printing out the form on this website. A lawyer is not needed to make an advance directive.
Ending an advance directive
An advance directive is valid until:
- the person changes it; or
- the person cancels it; or
- it expires and is not renewed. (You can include an expiry date in your advance directive.)
Because circumstances can change, an advance directive should be reviewed at least once a year.
Where to keep an advance directive
Copies of an advance directive should be given to the service or people most involved in the person’s mental health care, including the doctor and/or case manager. A copy should be put at the front of the person’s medical file.
Copies can also be given to:
- members of family/whanau
- anyone named as having a specific role in crisis treatment
- anyone who has an enduring power of attorney for a person’s care when they are not competent.
What is an Enduring Power of Attorney?
An enduring power of attorney lets people choose someone to make decisions about their care and/or property if they become "mentally incapable". The person might be a partner, close friend or relative. They must be over 20. Talk to a lawyer to find out more about this option. We recommend that people attach a copy of their advance directive to the enduring power of attorney document, if they have one.
Recovery plans, crisis plans and advance directives – what’s the difference?
A wellness recovery plan addresses a wide range of things that help recovery. Wellness recovery plans are usually developed in discussion with a mental health service provider.
A crisis plan is mainly for when things are not going well, though it can also be about avoiding crises. Crisis plans normally cover things such as warning signs, actions to prevent a crisis from getting worse, and important information about care of children, or pets or property. A crisis plan may include information about treatment preferences. Crisis plans are usually developed closely with mental health service providers.
An advance directive is only about health care and it only applies when a person is not competent to make all the decisions that are needed about their health care.
An advance directive does not need the approval of a service provider, but it is better to have a doctor sign that the person is competent.
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’. To obtain a copy you can download the document by clicking here or go to www.hdc.govt.nz, or you can get a copy from the Mental Health Commission.
The Health and Disability Commission has information about the Health and Disability Code of Rights, which applies to all health services.
Contributors
The Mental Health Commission thanks all of the people who gave advice or comments on the material in these pages, including:
- the Royal Australia and New Zealand College of Psychiatrists
- family members
- the Health and Disability Commission
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