| Declaration For Mental Health Treatment
The declaration for mental health treatment lets a person make some choices about the treatment the person may want to receive at some future time when the person is not capable of giving consent. It also lets a person appoint a friend or relative to make these choices for him or her. A completed mental health declaration allows a doctor to treat a person even though the person cannot give consent. As long as a person is able to give informed consent, the person makes the mental health decisions he or she wants to make. If the person becomes incapable of making decisions, then the mental health declaration can be used. A person is incapable of making decisions when the person’s "ability to receive and evaluate information effectively or communicate decisions is impaired to such an extent that the person currently lacks the capacity to make mental health treatment decisions." Either two doctors or a judge in a guardianship proceeding must make the determination. ORS 127.700(5). AREAS COVERED BY THE MENTAL HEALTH DECLARATION A person can decide in advance what he or she wants in three areas:
The form also has a space to list other information and references, such as a doctor’s name and number. The person can list treatments that work really well and treatments that do not work. For example, a person can say that when he or she is really agitated, sitting in a dark room with the door open is calming, but that closing and locking the door makes things much worse. The doctor does not have to follow these instructions, but if the doctor is aware of what works and what does not, he or she may be willing to try the suggestions. Also, a person can list allergies and other health problems. MEDICATIONS In this section, a person can make choices regarding medications. A person can consent to certain medications and refuse consent for other medications. A person can specify doses of drugs or refuse consent for all medications. A person can consent to any medications the doctor recommends. ELECTROCONVULSIVE TREATMENT (ECT) In this section, a person can consent or refuse to consent to shock treatment. If a person consents to shock treatment, he or she can set limits of how often and how much. HOSPITALIZATION this section, a person can consent to being admitted to a hospital or other mental health treatment facility. If a person agrees to being admitted, he or she can limit the number of days in the hospital. The most days a person can agree to stay in the hospital or mental health facility is 17 days. If the doctor thinks a person needs to stay longer and the person cannot or will not agree to stay, then the only way the doctor can force the person to stay in the hospital is through the civil commitment process. In addition to consenting or refusing hospitalization, a person also can consent to admission to some facilities and refuse consent to enter other facilities. APPOINTMENT OF AN ATTORNEY-IN-FACT A person can appoint a person to be an "attorney-in-fact". An attorney-in-fact can make decisions for the person if he or she cannot make decisions. An attorney-in-fact does not mean a lawyer. It is just a name for a friend, relative or other person who can be trusted to make important treatment decisions. The person chosen as attorney-in-fact has to sign to show he or she agrees to be the attorney-in-fact. A second person can be appointed as an alternate attorney-in-fact. This person acts as the attorney-in-fact if the first person refuses, is unable to act or his or her authority to act has been revoked. The attorney-in-fact must follow the directions given in the mental health declaration. If the mental health declaration does not give specific directions, the attorney-in-fact should do what the person has said he or she wants done. If the attorney-in-fact has not been told what to do, the attorney-infact should act in the best interests of the person. The attorney-in-fact has access to the medical records concerning treatment decisions. An attorney-in-fact can be very helpful because he or she can act as an advocate. An attorney-infact may be able to get things to happen that the person cannot. A doctor or provider may pay more attention to the attorney-in-fact than to the person being treated for mental illness. COMPLETION AND DISTRIBUTION OF THE MENTAL HEALTH DECLARATION After filling out the mental health declaration form, the person must sign it and have it signed by two witnesses. The doctor, the mental health care provider or their relatives cannot be witnesses. The owner or operator of a facility of which the person is a resident or the relatives of the owner or operator cannot be witnesses. No one to whom the person is related can be a witness. If an attorney-in-fact is appointed, he or she also must sign the declaration. When the declaration is finished, the person should give it to his or her doctor and other mental health care providers. A person should carry the declaration so it can be shown to anyone who might be going to give treatment. A doctor does not have to follow the mental health declaration if the doctor does not know about it. REVOCATION OF THE MENTAL HEALTH DECLARATION The mental health declaration can be revoked or changed. To revoke the declaration, the person must tell his or her doctor, provider, attorney-in-fact and anyone else who has the declaration that it is being revoked or changed. To be safe, this should be done in writing or all the copies of the declaration should be retrieved and destroyed. Also, the declaration cannot be revoked or changed during a time when the person has been found incapable. ORS 127.722. LENGTH OF TIME THE MENTAL HEALTH DECLARATION IS VALID A mental health declaration stays in effect for three years unless revoked. After three years, it is no longer valid. A new declaration must be signed every three years. If a person is incapable at the end of the three years, the declaration stays in effect until he or she is capable again. ORS 127.702(2). MENTAL HEALTH DECLARATION CANNOT BE REQUIRED No one can force a person to have a mental health declaration and no one can prevent a person from having one. The law specifically says that a person cannot be required to execute or refrain from executing a declaration as a criterion for insurance, as a condition of receiving mental health treatment or as a condition of discharge from a health care facility. ORS 127.715. PRECAUTIONS The mental health declaration is not something everyone will want to do. The main advantage c the mental health declaration is that it lets a doctor treat a person at a time when usually the doctor could not provide treatment because the person is not able to consent. The mental health declaration can help a person get treatment without going through the commitment process and without delay. Also, a person can use the mental health declaration to give a doctor information and to plan and think about how he or she would like to be treated in the future. The disadvantage is that a person can be treated and hospitalized without agreeing at the time it happening. If the mental health declaration provides consent for hospitalization, then the doctor can hold a person in the hospital even though he or she does not want to be there. No attorney will be appointed and no hearing will be held. If a person has a mental health care declaration and is incapable of making decisions, the doctor can treat by following the instructions. But, this does not mean the person will get the treatment requested and authorized. The doctor still has to agree that the treatment requested is medically appropriate. The mental health declaration form asks a person to make important decisions about medications, hospitalization and shock treatment. The form does not provide any information about the benefits or side effects of medications, the appropriate uses of specific medications or alternative types of treatment available. Anyone filling out a mental health declaration should find out about specific medications and about shock treatment before agreeing to receive them. A person considering whether to complete a mental health declaration should talk to his or her doctor or mental health provider about the possible choices. SITUATIONS IN WHICH THE MENTAL HEALTH DECLARATION IS NOT VALID In some situations, the doctor can provide treatment contrary to the directions in the mental health declaration. These situations are:
WHERE TO GET THE MENTAL HEALTH DECLARATION FORMS AND EXPLANATIONS MHDDSD has booklets that contain the forms and provide explanations of the forms and the law.
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