Legislature(1995 - 1996)
03/18/1996 01:05 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 318 - MENTAL HEALTH TREATMENT DECLARATIONS Number 1180 CHAIRMAN PORTER then introduced HB 318 and invited Representative Toohey to paraphrase her sponsor statement regarding this legislation into the record. REPRESENTATIVE TOOHEY stated that this bill would allow an individual to make advanced directives regarding his or her mental health treatment. The person would need to be of sound mind when making the declaration which would designate an "attorney in fact" who would act only when the individual was determined to be incapable. The directives would address use of psychotropic medications, electroconvulsive therapy and the length of short-term admission up to 17 days to a treatment facility. REPRESENTATIVE TOOHEY continued that this declaration would be in effect for three years unless the individual became incapable, in this case it would continue in effect until the individual is no longer incapable. While an individual is capable he or she can revoke the declaration in whole or in part at any time. This declaration gives the individual the opportunity to make his or her wishes known about the treatments. Ones that have worked in the past and ones that he or she desires in the future as well as, treatment that has not worked in the past and would not be desired in the future. REPRESENTATIVE TOOHEY noted that this legislation provides for a substitute decision maker with whom the doctors would consult should the declaration not be specific enough or should the doctors recommend a treatment not specified. House Bill 318 is similar to an Oregon law. In Oregon they found that individuals who had fought hospitalization and medication in the past, now were more willing to go to the hospital because they had a declaration in place and they thought their decisions would be heard. REPRESENTATIVE TOOHEY summed up by stating that HB 318 is supported by the Charter North Hospital, the Alaska State Hospital and Nursing Home Association, Southcentral Counseling Center, the Alaska Psychological Association, the Mental Health Association in Alaska, and the Mental Health Consumers of Alaska, as well as the Department of Health and Social Services. Number 1335 LEONARD ABEL, PhD, Mental Health Services Program, Department of Health & Social Services, stated that he thought this was an important piece of legislation. He said that the department strongly supports this bill. Personally he became interested in this issue about 12 years ago when he was working at the Southcentral Counseling Center in Anchorage. He had a client with schizophrenia, someone who came under the diagnosis of individuals who have one or two psychotic episodes in their lifetime and spend most of their time stabilized. The patient spoke to him on one occasion and asked if there some kind of document she could sign in case she had another episode, a document which could direct her to go to the hospital and get medications. At that time as a clinician, he had to tell her that no, there was no such vehicle. This woman knew that if she had another psychotic episode, she would lose the ability to think logically and rationally. She would lose the ability to make good decisions about her care and treatment. She knew that it was likely that she would become paranoid, that she would be frightened of anyone who tried to help her. MR. ABEL continued that once she had a breakdown without this declaration someone would have to decide that she was a danger to herself or others, greatly disabled due to this illness and put her in a hospital against her will. Once at API the staff would possibly go through days and days of trying to convince her to take her medication. Eventually she would stabilize. A declaration of this type says in essence that if someone gets sick and looses their ability to deal reasonably with a caregiver, that person would still want to receive help. This person would want to be given medication or do whatever that would make them stable. At the same time this would give someone a chance to say, for example, that thorazine makes them sick and they'd rather not take this medication. This could be applied to electric shock as well, among other treatments. It would also be an opportunity to designate what methods of treatment work and what ones don't. MR. ABEL added there should be no added cost for this legislation to the system. It was pointed out that there actually might be a negative fiscal note. If people can be put into treatment quickly a lot of the costs associated with commitment hearings and side trips to local community hospitals enroute to API could be avoided. He strongly urged the committee to pass this bill. Number 1609 REPRESENTATIVE GREEN asked about another bill because of it's possible effect on this legislation now before the committee. He asked if there was any way that if this legislation was passed it could be construed into a possible bill that gives the right of an individual to terminate their own life. If a person is incapacitated could the "attorney in fact" act in this person's stead for other things besides treatment of mental illness. MR. ABEL noted that the title of the bill, "An Act relating to advance directives for mental health treatment," and the language throughout the bill states that persons who sign the declaration are making decisions about mental health treatment. He didn't think that life or death was mentioned anywhere in this statute. Number 1686 REPRESENTATIVE VEZEY stated that this was the third time he had heard this bill and he still didn't understand what they're really trying to accomplish with this legislation. He pointed out that anybody can assign a power of attorney to somebody. It seemed that they were requiring that there be an outside judgment involved if this feared event happened. Until it's been diagnosed or confirmed by independent parties the person who holds a power of attorney can counsel caregivers because they have intimate knowledge of the intent of their custodial person, but these powers wouldn't go into effect until there is confirmation that this mental illness has set in. This was his interpretation of this legislation. MR. ABEL stated that a person may have a guardian or a conservator which are different types of appointments for different reasons. He didn't see this legislation affecting these other types of relationships. This legislation would appoint a very specific "attorney in fact" for the narrow purposes of acting on the person's behalf to acquire mental health treatment. Number 1850 REPRESENTATIVE VEZEY responded that he understood this "attorney in fact" can not stand in and act as the individual's guardian until such time as some independent party makes a determination that mental illness has set in and the person is not capable of making decisions. He wasn't sure they were making a big step here. Without this law a determination is necessary that mental illness is involved and medical help is needed. Anybody can make a list of things which outlines their medical history and those treatments which they don't respond well to. He asked what they were gaining with a custodian or power of attorney to tell the medical professionals what the wishes of the patient are when these professionals are capable of reading a document. MR. ABEL said that the intent of this statute allows for a lesser level of disability which grants the "attorney in fact" the power to direct the treatment lesser than would be necessary for a commitment hearing. Number 2030 DOROTHY PEAVEY, Executive Director, Mental Health Consumers of Alaska, testified by teleconference from Anchorage. She noted that this legislation was a response to a lot of need which they have seen for a long time. It gives consumers a means to make their wishes known and to have some legal validity to these choices at a time when their decision making is poor and when their ability to be a good historian is also poor. Currently, there is a standard of competency which is determined by a court after a hearing. This legislation provides for a lower standard. This legislation was designed so that a person would be found incapable by either two physicians, one of whom has to be a psychiatrist or a physician in a professional mental health clinic or someone with a master's degree or higher in the mental health services, especially in the bush communities. This person would authorize a hospital stay up to 17 days. The declaration does have a fill in the blank format, so a person who fills out the declaration could designate that they only want to be hospitalized for four days before they would have to go to a commitment hearing, if they desired not to be in the hospital. MS. PEAVEY stated that currently, if a person does not wish to be in the hospital and they have to go to court to be committed, if they still refuse to take their medication, they have to go to a medication hearing. Both of these hearings tie up a lot of state resources, such as a judge, a physiatrist, the attorney general and a public defender. This can take quite a lot of time before these hearing may take place. If a declaration is filled out the patient has already designated the medication they're willing to take in the event of a relapse. If these drugs are not appropriate, the doctor has choices, first they can go to the "attorney in fact" and then make a decision about the medication or if they can't get permission at this point they can decline to provide services unless it's an emergency situation. Then they would have to use good medical judgment. Number 2333 RICHARD RAINERY, Executive Director, Alaska Mental Health Board stated that the board supports this legislation. They feel it provides consumers with an instrument of control over their own treatment which is currently lacking. CHAIRMAN PORTER asked about the absence of the definition of "sound mind" in the bill. He didn't know if there should or shouldn't be, but it seemed to him that there's an automatic suggestion of a way to circumvent the intent of this legislation by trying to establish that the person was not of sound mind when they completed the form, i.e. they had previous mental health problems. (Additional comments made by Representative Davies were incomplete due to the end of tape.) TAPE 96-37, SIDE A Number 063 CHAIRMAN PORTER noted that in these situations there was probably some previous concern about the mental health of the principle, so to then say at some point subsequent to treatment, but looking forward to the fact that there may be an episode, is there one strike against the determination that this person is of sound mind already. He stated that maybe this issue wasn't worth dealing with. Number 122 REPRESENTATIVE BUNDE concurred with Representative Davis and her point regarding this legislation deals with a mental health professional and they need to be willing to accept this professional's definition that this person at one time was competent to make this judgment through a declaration. CHAIRMAN PORTER said he didn't intend to create a problem that makes this more difficult, but to recognize this might happen, so maybe they should negate an avenue of attack. Number 225 TERRI LAUTERBACH, Esq., Legislative Legal and Research Services testified regarding Chairman Porter's question. The declaration of being of sound mind is in many types of other legal documents, such as a will. This type of document is not only applied to people with mental illness episodes, but someone might craft similar language in a living will for a possible car accident for example. The restitution of "being of sound mind" is normal, and could be crafted by a person who has never had a mental illness episode. She stated that hopefully these people would consult a lawyer. The form does allow for a disclaimer which states that these are important decisions and the person should consult a lawyer. CHAIRMAN PORTER pointed out for the sake of consistency on page 8, which deals with the affirmation of witnesses and the provision that witnesses state they know the principle. On the bottom of page 2, the witnesses again must attest that the principle is known to them and for consistency he suggested adding the word "personally" known to both sections. Ms. Lauterbach said that this couldn't hurt. Number 485 CHAIRMAN PORTER outlined this change by outlining the following amendment that on page 3, line 1, insert the word "personally" before the word known. This amendment would read, "...must attest that the principal is personally known to them,..." REPRESENTATIVE VEZEY objected. He stated that the traditional, customary manner of witnessing a signature in the state of Alaska is to have a signature notarized. For a person to travel to a state medical center in Anchorage if they live 400 miles away, it would be difficult or impossible to find two people who would sign a statement saying that they personally know the principle. This why we have notary publics to authenticate such signatures. He understood what the intent of the motion was, but he's had time to think and worry about this issue. Number 609 REPRESENTATIVE BUNDE said he didn't see a problem with this. If he had to travel to a facility he would bring his declaration with him which would be already signed by family members or people who know him. There's a difference between proving who he is and proving that when he's making decisions about medical care that he really was in his right mind. REPRESENTATIVE DAVIS noted that, yes, this declaration would be signed in advance. MS. LAUTERBACH understood that what they were attempting to do is to make two sections of the legislation consistent. If Representative Vezey had a concern about using these two witnesses rather than a notary, this is a different kind of amendment which would deal with different issues. Number 761 REPRESENTATIVE VEZEY withdrew his objection. CHAIRMAN PORTER stated that without further objection this amendment passed. REPRESENTATIVE DAVIS made a motion to move CSHB 318 (A) with individual recommendations and the attached fiscal note as amended. There being no objection it was so moved.
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