Legislature(1995 - 1996)

03/18/1996 01:05 PM JUD

Audio Topic
* first hearing in first committee of referral
+ 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            
 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               
 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                
 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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