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The Psyciatric Living Will

by By Douglas A. Crowder and Cindy S. Bamforth Wednesday, Feb. 20, 2002 at 9:47 PM
dcrowder@crowderlaw.com 818-240-0484 5900 San Fernando Rd, Suite A, Glendale, CA 91201

With the growing recognition that psychiatric treatment causes more harm than good, people should take every available precaution to decrease the likelihood that they are subjected to incarceration, deadly drugs, electro-shock and other forms of brutality that pass for “treatment” in psychiatry. One legal technique that may increase one’s safety is the “psychiatric living will.”

errorWith the growing recognition that psychiatric treatment causes more harm than good, people should take every available precaution to decrease the likelihood that they are subjected to incarceration, deadly drugs, electro-shock and other forms of brutality that pass for treatment in psychiatry. One legal technique that may increase ones safety is the psychiatric living will.

WHAT IS A LIVING WILL?

A will is a document by which a person specifies what is to be done with ones property upon ones death. It does not take effect until one dies, and can be revoked at any time prior to death.

A living will, on the other hand, is a document by which a person specifies what is to be done with ones body while one is still alive. It takes effect when one is unable to make or communicate ones own decisions about what type of health care one receives.

THE CALIFORNIA ADVANCE HEALTH CARE DIRECTIVE

In California, a living will is called the California Advance Health Care Directive (the Directive). The Directive was designed to protect ones right to refuse medical treatment that one would not want to undergo, or to request the sort of treatment that one would want if one were incapable of making such decisions at some point in the future. The Directive also gives an individual the right to name someone else to make health care decisions for that individual.

SUMMARY OF THE LAW REGARDING THE CALIFORNIA ADVANCE HEALTH CARE DIRECTIVE

In California, the Advance Health Care Directive was enacted by the state legislature in July 2000 [California Probate Code Sections 4700-4701]. The Directive replaced the Durable Power of Attorney for Health Care and the Declaration pursuant to the Natural Death Act (commonly known as the Living Will). Durable Powers of Attorney for Health Care and Living Wills that were executed before July 2000 remain valid under the new laws. However, Durable Powers of Attorney for Health Care that were executed prior to 1992 have expired and should be replaced with an Advance Health Care Directive.

The Directive actually consists of 4 parts: (1) Power of Attorney for Health Care; (2) Instructions for Health Care; (3) Donation of Organs at Death; and (4) Primary Physician.

(1) The Power of Attorney for Health Care allows one to name someone else to make decisions about the signers medical care (including, but not limited to, decisions involving the use of life support). The signer has the option to choose to name alternate agents if the primary agent is not willing, able or available to make these sorts of decisions for the signer. The signer also can specify what decisions the agent is authorized to make and when the agents authority becomes effective. So long as the signer does not specifically limit the authority of the agent, the agent will be deemed to have the right, among other things, to: (a) consent or refuse to consent to any care, treatment, service, or procedure to maintain, diagnose, or otherwise affect a physical or mental condition; (b) select or discharge health care providers and institutions; and (c) approve or disapprove diagnostic tests, surgical procedures, and programs of medication. [California Probate Code Section 4701].

(2) The Instructions for Health Care allow one to give specific instructions about any aspect of ones health care even if an agent is not appointed by the individual. For example, choices regarding when to prolong ones life, when to be given treatment for alleviation of pain and any other wishes can be specifically written in this section of the Directive. Space is also provided for one to add to the choices one has made or to write out any additional wishes regarding medical treatment. In other words, one could express ones desire that one not be subject to psychiatric treatment of any form.

(3) The Donation of Organs at Death section of the Directive is an optional part of the form that allows the individual to express an intention to donate bodily organs and tissues upon the individuals death.

(4) The Primary Physician section of the Directive is also an optional part of the form that allows the individual to designate a specific physician (and an alternate physician) to have primary responsibility for the individuals health care.

HOW TO MAKE AN ADVANCE HEALTH CARE DIRECTIVE LEGALLY BINDING

Under California law, only a competent adult over the age of eighteen may sign a binding Directive. The Directive must be signed by two qualified witnesses or signed by the individual before a notary public. By law, copies of the Directive are as valid as the original. Copies of the Directive should be given to ones physician, family, friends, clergy and the individuals named as the health care agents. The Directive may be revoked or replaced at any time.

THE PRACTICAL EFFECT OF ADVANCE HEALTH CARE DIRECTIVES

There are many laws in California regarding what a health care provider can and cannot do once the provider is aware of the existence of such a Directive. For example, once a supervising health care provider knows of the existence of a Directive, the provider must record its existence in the patients health care record and shall request a copy of the Directive. [California Probate Code Section 4731(a)].

However, the California legislature has also enacted some laws that could dilute the effectiveness of a Directive. Although health care providers and health care institutions are required to comply with a Directive and comply with the agents decision(s), the providers may nevertheless refuse to comply with these instructions for reasons of conscience or if the instruction or health care decision is contrary to a policy of the institution that is expressly based on reasons of conscience and if the policy was timely communicated to the patient or to a person then authorized to make health care decisions for the patient. [California Probate Code Section 4734].

Additionally, a provider or institution may refuse to comply with an instruction or decision that requires medically ineffective health care or health care contrary to generally accepted health care standards applicable to the health care provider or institution. [California Probate Code Section 4735]. If the provider or institution refuses to so comply, at the very least the provider or institution must inform the patient or the patients agent and immediately make reasonable efforts to transfer the patient to another provider or institution that is willing to comply with the instruction or decision in dispute.

Another way that the effectiveness of the Directive is weakened somewhat is that certain individuals may petition the courts to determine whether the patient has capacity to make health care decisions or whether the agents authority should be terminated, etc. These individuals include the patients spouse and relatives. [California Probate Code Sections 4765 and 4766]. One way to circumvent such litigation would be to have the individuals lawyer sign a certificate at the time the Directive is executed stating that the lawyer advised his or her client concerning his or her rights in connection with the Directive and the applicable law and the consequences of signing the Directive. If this certificate is so executed, then by law the individuals spouse and/or relatives cannot petition the courts to contest the Directive or the agents authority, etc. [California Probate Code Section 4753].

SUGGESTED PROVISIONS REGARDING PSYCHIATRIC TREATMENT

One should include in the Directive provisions that state ones wishes not to be subjected to incarceration, psycho-surgery, drugs, or shocks; that psychiatric treatment and diagnosis has no scientific validity; that it violates ones philosophical and/or religious convictions; and that ones attorneys are authorized to proceed with any criminal or civil action necessary to prevent one from being subject to such treatments.

There can be no guarantee that a psychiatric living will would prevent one from being subject to involuntary psychiatric treatment it should, however, reduce the odds.

HOW TO OBTAIN AN ADVANCE HEALTH CARE DIRECTIVE

This office is offering a basic Advance Health Care Directive form free of charge. This fill-in-the-blank form includes the statutory language and our suggested language regarding psychiatric treatment. As with any free offer, a few restrictions and conditions apply, and there will be a charge for preparation of anything above the basic form.

CONCLUSION

As our society becomes more knowledgeable with the advances of medical care and technology, having an Advance Health Care Directive is a wise decision. With the power to make directives in advance, one can make more informed choices about artificially prolonged life, the refusal to undergo psychiatric treatment, etc. Thus, by taking control over these decisions while competent and healthy, one can be more in control of ones life.

Douglas A. Crowder is a 1977 graduate of the University of Iowa College of Law, and has been practicing in California since 1989. Cindy S. Bamforth is a 1996 graduate of the Seattle University School of Law.
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