Engrossed Substitute Senate Bill 5370 as Recommended by Subcommittee on Behavioral Health

Source

Section 1

This section modifies existing section 71.32.010. Here is the modified chapter for context.

  1. The legislature declares that an individual with capacity has the ability to control decisions relating to his or her own behavioral health care. The legislature finds that:

    1. Some behavioral health disorders cause individuals to fluctuate between capacity and incapacity;

    2. During periods when an individual's capacity is unclear, the individual may be unable to access needed treatment because the individual may be unable to give informed consent;

    3. Early treatment may prevent an individual from becoming so ill that involuntary treatment is necessary; and

    4. Individuals with behavioral health disorders need some method of expressing their instructions and preferences for treatment and providing advance consent to or refusal of treatment.

  2. The legislature recognizes that a mental health advance directive can be an essential tool for an individual to express his or her choices at a time when the effects of a behavioral health disorder have not deprived him or her of the power to express his or her instructions or preferences.

  3. The legislature further finds that:

    1. A mental health advance directive must provide the individual with a full range of choices;

    2. Individuals with behavioral health disorders have varying perspectives on whether they want to be able to revoke a directive during periods of incapacity;

    3. For a mental health advance directive to be an effective tool, individuals must be able to choose how they want their directives treated during periods of incapacity; and

    4. There must be clear standards so that treatment providers can readily discern an individual's treatment choices.

Consequently, the legislature affirms that, pursuant to other provisions of law, a validly executed mental health advance directive is to be respected by agents, guardians, and other surrogate decision makers, health care providers, professional persons, and health care facilities.

Section 2

This section modifies existing section 71.32.020. Here is the modified chapter for context.

The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.

  1. "Adult" means any individual who has attained the age of majority or is an emancipated minor.

  2. "Agent" has the same meaning as an attorney-in-fact or agent as provided in chapter 11.125 RCW.

  3. "Capacity" means that a person has not been found to be incapacitated pursuant to this chapter or RCW 11.88.010(1)(e).

  4. "Court" means a superior court under chapter 2.08 RCW.

  5. "Health care facility" means a hospital, as defined in RCW 70.41.020; an institution, as defined in RCW 71.12.455; a state hospital, as defined in RCW 72.23.010; a nursing home, as defined in RCW 18.51.010; or a clinic that is part of a community mental health service delivery system, as defined in RCW 71.24.025.

  6. "Health care provider" means an osteopathic physician or osteopathic physician's assistant licensed under chapter 18.57 or 18.57A RCW, a physician or physician's assistant licensed under chapter 18.71 or 18.71A RCW, or an advanced registered nurse practitioner licensed under RCW 18.79.050.

  7. "Incapacitated" means a person who: (a) Is unable to understand the nature, character, and anticipated results of proposed treatment or alternatives; understand the recognized serious possible risks, complications, and anticipated benefits in treatments and alternatives, including nontreatment; or communicate his or her understanding or treatment decisions; or (b) has been found to be incompetent pursuant to RCW 11.88.010(1)(e).

  8. "Informed consent" means consent that is given after a person: (a) Is provided with a description of the nature, character, and anticipated results of proposed treatments and alternatives, and the recognized serious possible risks, complications, and anticipated benefits in the treatments and alternatives, including nontreatment, in language that the person can reasonably be expected to understand; or (b) elects not to be given the information included in (a) of this subsection.

  9. "Long-term care facility" has the same meaning as defined in RCW 43.190.020.

  10. "Mental disorder" means any organic, mental, or emotional impairment which has substantial adverse effects on an individual's cognitive or volitional functions.

  11. "Mental health advance directive" or "directive" means a written document in which the principal makes a declaration of instructions or preferences or appoints an agent to make decisions on behalf of the principal regarding the principal's mental health treatment, or both, and that is consistent with the provisions of this chapter.

  12. "Mental health professional" means a psychiatrist, psychologist, psychiatric nurse, or social worker, and such other mental health professionals as may be defined by rules adopted by the secretary pursuant to the provisions of chapter 71.05 RCW.

  13. "Principal" means a person who has executed a mental health advance directive.

  14. "Professional person" means a mental health professional and shall also mean a physician, registered nurse, and such others as may be defined by rules adopted by the secretary pursuant to the provisions of chapter 71.05 RCW.

  15. "Social worker" means a person with a master's or further advanced degree from a social work educational program accredited and approved as provided in RCW 18.320.010.

  16. "Behavioral health disorder" means a mental disorder, a substance use disorder, or a co-occurring mental health and substance use disorder.

  17. "Substance use disorder" means a cluster of cognitive, behavioral, and physiological symptoms indicating that an individual continues using the substance despite significant substance-related problems. The diagnosis of a substance use disorder is based on a pathological pattern of behaviors related to the use of the substances.

Section 3

This section modifies existing section 71.32.020. Here is the modified chapter for context.

The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.

  1. "Adult" means any individual who has attained the age of majority or is an emancipated minor.

  2. "Agent" has the same meaning as an attorney-in-fact or agent as provided in chapter 11.125 RCW.

  3. "Capacity" means that a person has not been found to be incapacitated pursuant to this chapter or subject to a guardianship under RCW 11.130.265.

  4. "Court" means a superior court under chapter 2.08 RCW.

  5. "Health care facility" means a hospital, as defined in RCW 70.41.020; an institution, as defined in RCW 71.12.455; a state hospital, as defined in RCW 72.23.010; a nursing home, as defined in RCW 18.51.010; or a clinic that is part of a community behavioral health service delivery system, as defined in RCW 71.24.025.

  6. "Health care provider" means an osteopathic physician or osteopathic physician's assistant licensed under chapter 18.57 or 18.57A RCW, a physician or physician's assistant licensed under chapter 18.71 or 18.71A RCW, or an advanced registered nurse practitioner licensed under RCW 18.79.050.

  7. "Incapacitated" means a person who: (a) Is unable to understand the nature, character, and anticipated results of proposed treatment or alternatives; understand the recognized serious possible risks, complications, and anticipated benefits in treatments and alternatives, including nontreatment; or communicate his or her understanding or treatment decisions; or (b) has been found to be subject to a guardianship under RCW 11.130.265.

  8. "Informed consent" means consent that is given after (a) person: (a) Is provided with a description of the nature, character, and anticipated results of proposed treatments and alternatives, and the recognized serious possible risks, complications, and anticipated benefits in the treatments and alternatives, including nontreatment, in language that the person can reasonably be expected to understand; or (b) elects not to be given the information included in (a) of this subsection.

  9. "Long-term care facility" has the same meaning as defined in RCW 43.190.020.

  10. "Mental disorder" means any organic, mental, or emotional impairment which has substantial adverse effects on an individual's cognitive or volitional functions.

  11. "Mental health advance directive" or "directive" means a written document in which the principal makes a declaration of instructions or preferences or appoints an agent to make decisions on behalf of the principal regarding the principal's mental health treatment, or both, and that is consistent with the provisions of this chapter.

  12. "Mental health professional" means a psychiatrist, psychologist, psychiatric nurse, or social worker, and such other mental health professionals as may be defined by rules adopted by the secretary pursuant to the provisions of chapter 71.05 RCW.

  13. "Principal" means a person who has executed a mental health advance directive.

  14. "Professional person" means a mental health professional and shall also mean a physician, registered nurse, and such others as may be defined by rules adopted by the secretary pursuant to the provisions of chapter 71.05 RCW.

  15. "Social worker" means a person with a master's or further advanced degree from a social work educational program accredited and approved as provided in RCW 18.320.010.

  16. "Behavioral health disorder" means a mental disorder, a substance use disorder, or a co-occurring mental health and substance use disorder.

  17. "Substance use disorder" means a cluster of cognitive, behavioral, and physiological symptoms indicating that an individual continues using the substance despite significant substance-related problems. The diagnosis of a substance use disorder is based on a pathological pattern of behaviors related to the use of the substances.

Section 5

This section modifies existing section 71.32.030. Here is the modified chapter for context.

  1. The definition of informed consent is to be construed to be consistent with that term as it is used in chapter 7.70 RCW.

  2. The definitions of mental disorder, behavioral health disorder, mental health professional, and professional person are to be construed to be consistent with those terms as they are defined in RCW 71.05.020.

Section 6

This section modifies existing section 71.32.040. Here is the modified chapter for context.

For the purposes of this chapter, an adult is presumed to have capacity. A person who is at least 13 years of age but under the age of majority is considered to have capacity for the purpose of executing a mental health advance directive if the person is able to demonstrate that they are capable of making informed decisions related to behavioral health care.

Section 7

This section modifies existing section 71.32.050. Here is the modified chapter for context.

  1. A person with capacity may execute a mental health advance directive.

  2. A directive executed in accordance with this chapter is presumed to be valid. The inability to honor one or more provisions of a directive does not affect the validity of the remaining provisions.

  3. A directive may include any provision relating to behavioral health treatment or the care of the principal or the principal's personal affairs. Without limitation, a directive may include:

    1. The principal's preferences and instructions for behavioral health treatment;

    2. Consent to specific types of behavioral health treatment;

    3. Refusal to consent to specific types of behavioral health treatment;

    4. Consent to admission to and retention in a facility for behavioral health treatment for up to 14 days;

    5. Descriptions of situations that may cause the principal to experience a behavioral health crisis;

    6. Suggested alternative responses that may supplement or be in lieu of direct behavioral health treatment, such as treatment approaches from other providers;

    7. Appointment of an agent pursuant to chapter 11.125 RCW to make behavioral health treatment decisions on the principal's behalf, including authorizing the agent to provide consent on the principal's behalf to voluntary admission to inpatient behavioral health treatment; and

    8. The principal's nomination of a guardian or limited guardian as provided in RCW 11.125.080 for consideration by the court if guardianship proceedings are commenced.

  4. A directive may be combined with or be independent of a nomination of a guardian or other durable power of attorney under chapter 11.125 RCW, so long as the processes for each are executed in accordance with its own statutes.

Section 8

This section modifies existing section 71.32.060. Here is the modified chapter for context.

  1. A directive shall:

    1. Be in writing;

    2. Contain language that clearly indicates that the principal intends to create a directive;

    3. Be dated and signed by the principal or at the principal's direction in the principal's presence if the principal is unable to sign;

    4. Designate whether the principal wishes to be able to revoke the directive during any period of incapacity or wishes to be unable to revoke the directive during any period of incapacity; and

    5. Have the signature acknowledged before a notary public or other individual authorized by law to take acknowledgments, or be witnessed in writing by at least two adults, each of whom shall declare that he or she personally knows the principal, was present when the principal dated and signed the directive, and that the principal did not appear to be incapacitated or acting under fraud, undue influence, or duress.

  2. A directive that includes the appointment of an agent pursuant to a power of attorney under chapter 11.125 RCW shall contain the words "This power of attorney shall not be affected by the incapacity of the principal," or "This power of attorney shall become effective upon the incapacity of the principal," or similar words showing the principal's intent that the authority conferred shall be exercisable notwithstanding the principal's incapacity.

  3. A directive is valid upon execution, but all or part of the directive may take effect at a later time as designated by the principal in the directive.

  4. A directive may:

    1. Be revoked, in whole or in part, pursuant to the provisions of RCW 71.32.080; or

    2. Expire under its own terms.

Section 9

This section modifies existing section 71.32.070. Here is the modified chapter for context.

A directive may not:

  1. Create an entitlement to behavioral health or medical treatment or supersede a determination of medical necessity;

  2. Obligate any health care provider, professional person, or health care facility to pay the costs associated with the treatment requested;

  3. Obligate any health care provider, professional person, or health care facility to be responsible for the nontreatment personal care of the principal or the principal's personal affairs outside the scope of services the facility normally provides;

  4. Replace or supersede the provisions of any will or testamentary document or supersede the provisions of intestate succession;

  5. Be revoked by an incapacitated principal unless that principal selected the option to permit revocation while incapacitated at the time his or her directive was executed; or

  6. Be used as the authority for inpatient admission for more than 14 days in any 21 day period.

Section 10

This section modifies existing section 71.32.100. Here is the modified chapter for context.

  1. If a directive authorizes the appointment of an agent, the provisions of chapter 11.125 RCW and RCW 7.70.065 shall apply unless otherwise stated in this chapter.

  2. The principal who appoints an agent must notify the agent in writing of the appointment.

  3. An agent must act in good faith.

  4. An agent may make decisions on behalf of the principal. Unless the principal has revoked the directive, the decisions must be consistent with the instructions and preferences the principal has expressed in the directive, or if not expressed, as otherwise known to the agent. If the principal's instructions or preferences are not known, the agent shall make a decision he or she determines is in the best interest of the principal.

  5. A person authorized to act as an agent during periods when the principal is incapacitated may act as the principal's personal representative pursuant to the health insurance portability and accountability act, sections 1171 through 1179 of the social security act, 42 U.S.C. Sec. 1320d, as amended, and applicable regulations, to obtain access to the principal's health care information and communicate with the principal's health care provider. This subsection shall be construed to be consistent with chapters 70.02, 70.24, 71.05, and 71.34 RCW, and with federal law regarding health care information.

  6. Unless otherwise provided in the appointment and agreed to in writing by the agent, the agent is not, as a result of acting in the capacity of agent, personally liable for the cost of treatment provided to the principal.

  7. An agent may resign or withdraw at any time by giving written notice to the principal. The agent must also give written notice to any health care provider, professional person, or health care facility providing treatment to the principal. The resignation or withdrawal is effective upon receipt unless otherwise specified in the resignation or withdrawal.

  8. If the directive gives the agent authority to act while the principal has capacity, the decisions of the principal supersede those of the agent at any time the principal has capacity.

  9. Unless otherwise provided in the durable power of attorney, the principal may revoke the agent's appointment as provided under other state law.

Section 11

This section modifies existing section 71.32.110. Here is the modified chapter for context.

  1. For the purposes of this chapter, a principal, agent, professional person, or health care provider may seek a determination whether the principal is incapacitated or has regained capacity.

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    1. For the purposes of this chapter, no adult may be declared an incapacitated person except by:

      1. A court, if the request is made by the principal or the principal's agent;

      2. One mental health professional or substance use disorder professional and one health care provider; or

      3. Two health care providers.

    2. One of the persons making the determination under (a)(ii) or (iii) of this subsection must be a psychiatrist, physician assistant working with a supervising psychiatrist, psychologist, or a psychiatric advanced registered nurse practitioner.

  3. When a professional person or health care provider requests a capacity determination, he or she shall promptly inform the principal that:

    1. A request for capacity determination has been made; and

    2. The principal may request that the determination be made by a court.

  4. At least one mental health professional**, substance use disorder professional,** or health care provider must personally examine the principal prior to making a capacity determination.

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    1. When a court makes a determination whether a principal has capacity, the court shall, at a minimum, be informed by the testimony of one mental health professional or substance use disorder professional familiar with the principal and shall, except for good cause, give the principal an opportunity to appear in court prior to the court making its determination.

    2. To the extent that local court rules permit, any party or witness may testify telephonically.

  6. When a court has made a determination regarding a principal's capacity and there is a subsequent change in the principal's condition, subsequent determinations whether the principal is incapacitated may be made in accordance with any of the provisions of subsection (2) of this section.

Section 12

This section modifies existing section 71.32.130. Here is the modified chapter for context.

  1. An initial determination of capacity must be completed within 48 hours of a request made by a person authorized in RCW 71.32.110. During the period between the request for an initial determination of the principal's capacity and completion of that determination, the principal may not be treated unless he or she consents at the time or treatment is otherwise authorized by state or federal law.

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      1. When an incapacitated principal is admitted to inpatient treatment pursuant to the provisions of his or her directive, his or her capacity must be reevaluated within 120 hours or when there has been a change in the principal's condition that indicates that he or she appears to have regained capacity, whichever occurs first.

      2. When an incapacitated principal has been admitted to and remains in inpatient treatment for more than 120 hours pursuant to the provisions of his or her directive, the principal's capacity must be reevaluated when there has been a change in his or her condition that indicates that he or she appears to have regained capacity.

      3. When a principal who is being treated on an inpatient basis and has been determined to be incapacitated requests, or his or her agent requests, a redetermination of the principal's capacity the redetermination must be made within 120 hours.

    2. When a principal who has been determined to be incapacitated is being treated on an outpatient basis and there is a request for a redetermination of his or her capacity, the redetermination must be made within five days of the first request following a determination.

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    1. When a principal who has appointed an agent for behavioral health treatment decisions requests a determination or redetermination of capacity, the agent must make reasonable efforts to obtain the determination or redetermination.

    2. When a principal who does not have an agent for behavioral health treatment decisions is being treated in an inpatient facility and requests a determination or redetermination of capacity, the mental health professional or health care provider must complete the determination or, if the principal is seeking a determination from a court, must make reasonable efforts to notify the person authorized to make decisions for the principal under RCW 7.70.065 of the principal's request.

    3. When a principal who does not have an agent for behavioral health treatment decisions is being treated on an outpatient basis, the person requesting a capacity determination must arrange for the determination.

  4. If no determination has been made within the time frames established in subsection (1) or (2) of this section, the principal shall be considered to have capacity.

  5. When an incapacitated principal is being treated pursuant to his or her directive, a request for a redetermination of capacity does not prevent treatment.

Section 14

This section modifies existing section 71.32.170. Here is the modified chapter for context.

  1. For the purposes of this section, "provider" means a private or public agency, government entity, health care provider, professional person, health care facility, or person acting under the direction of a health care provider or professional person, health care facility, or long-term care facility.

  2. A provider is not subject to civil liability or sanctions for unprofessional conduct under the uniform disciplinary act, chapter 18.130 RCW, when in good faith and without negligence:

    1. The provider provides treatment to a principal in the absence of actual knowledge of the existence of a directive, or provides treatment pursuant to a directive in the absence of actual knowledge of the revocation of the directive;

    2. A health care provider or mental health professional determines that the principal is or is not incapacitated for the purpose of deciding whether to proceed according to a directive, and acts upon that determination;

    3. The provider administers or does not administer behavioral health treatment according to the principal's directive in good faith reliance upon the validity of the directive and the directive is subsequently found to be invalid;

    4. The provider does not provide treatment according to the directive for one of the reasons authorized under RCW 71.32.150; or

    5. The provider provides treatment according to the principal's directive.

Section 15

This section modifies existing section 71.32.180. Here is the modified chapter for context.

  1. Where an incapacitated principal has executed more than one valid directive and has not revoked any of the directives:

    1. The directive most recently created shall be treated as the principal's behavioral health treatment preferences and instructions as to any inconsistent or conflicting provisions, unless provided otherwise in either document.

    2. Where a directive executed under this chapter is inconsistent with a directive executed under any other chapter, the most recently created directive controls as to the inconsistent provisions.

  2. Where an incapacitated principal has appointed more than one agent under chapter 11.125 RCW with authority to make behavioral health treatment decisions, RCW 11.125.400 controls.

  3. The treatment provider shall inquire of a principal whether the principal is subject to any court orders that would affect the implementation of his or her directive.

Section 16

This section modifies existing section 71.32.210. Here is the modified chapter for context.

The fact that a person has executed a directive does not constitute an indication of behavioral health disorder or that the person is not capable of providing informed consent.

Section 17

This section modifies existing section 71.32.220. Here is the modified chapter for context.

A person shall not be required to execute or to refrain from executing a directive, nor shall the existence of a directive be used as a criterion for insurance, as a condition for receiving behavioral or physical health services, or as a condition of admission to or discharge from a health care facility or long-term care facility.

Section 18

This section modifies existing section 71.32.250. Here is the modified chapter for context.

  1. If a principal who is a resident of a long-term care facility is admitted to inpatient behavioral health treatment pursuant to his or her directive, the principal shall be allowed to be readmitted to the same long-term care facility as if his or her inpatient admission had been for a physical condition on the same basis that the principal would be readmitted under state or federal statute or rule when:

    1. The treating facility's professional staff determine that inpatient behavioral health treatment is no longer medically necessary for the resident. The determination shall be made in writing by a psychiatrist, physician assistant working with a supervising psychiatrist, or a psychiatric advanced registered nurse practitioner, or (i) one physician and a mental health professional or substance use disorder professional; (ii) one physician assistant and a mental health professional or substance use disorder professional; or (iii) one psychiatric advanced registered nurse practitioner and a mental health professional or substance use disorder professional; or

    2. The person's consent to admission in his or her directive has expired.

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    1. If the long-term care facility does not have a bed available at the time of discharge, the treating facility may discharge the resident, in consultation with the resident and agent if any, and in accordance with a medically appropriate discharge plan, to another long-term care facility.

    2. This section shall apply to inpatient behavioral health treatment admission of long-term care facility residents, regardless of whether the admission is directly from a facility, hospital emergency room, or other location.

    3. This section does not restrict the right of the resident to an earlier release from the inpatient treatment facility. This section does not restrict the right of a long-term care facility to initiate transfer or discharge of a resident who is readmitted pursuant to this section, provided that the facility has complied with the laws governing the transfer or discharge of a resident.

  3. The joint legislative audit and review committee shall conduct an evaluation of the operation and impact of this section. The committee shall report its findings to the appropriate committees of the legislature by December 1, 2004.

Section 20

This section adds a new section to an existing chapter 71.32. Here is the modified chapter for context.

Nothing in this chapter restricts the right of a parent to seek behavioral health evaluation and treatment for a nonconsenting adolescent using family-initiated treatment laws under chapter 71.34 RCW.

Section 21

This section modifies existing section 71.34.755. Here is the modified chapter for context.

  1. Less restrictive alternative treatment, at a minimum, must include the following services:

    1. Assignment of a care coordinator;

    2. An intake evaluation with the provider of the less restrictive alternative treatment;

    3. A psychiatric evaluation;

    4. A schedule of regular contacts with the provider of the less restrictive alternative treatment services for the duration of the order;

    5. A transition plan addressing access to continued services at the expiration of the order;

    6. An individual crisis plan;

    7. Consultation about the formation of a mental health advance directive under chapter 71.32 RCW; and

    8. Notification to the care coordinator assigned in (a) of this subsection if reasonable efforts to engage the client fail to produce substantial compliance with court-ordered treatment conditions.

  2. Less restrictive alternative treatment may include the following additional services:

    1. Medication management;

    2. Psychotherapy;

    3. Nursing;

    4. Substance abuse counseling;

    5. Residential treatment; and

    6. Support for housing, benefits, education, and employment.

  3. If the minor was provided with involuntary medication during the involuntary commitment period, the less restrictive alternative treatment order may authorize the less restrictive alternative treatment provider or its designee to administer involuntary antipsychotic medication to the person if the provider has attempted and failed to obtain the informed consent of the person and there is a concurring medical opinion approving the medication by a psychiatrist, physician assistant working with a supervising psychiatrist, psychiatric advanced registered nurse practitioner, or physician or physician assistant in consultation with an independent mental health professional with prescribing authority.

  4. Less restrictive alternative treatment must be administered by a provider that is certified or licensed to provide or coordinate the full scope of services required under the less restrictive alternative order and that has agreed to assume this responsibility.

  5. The care coordinator assigned to a minor ordered to less restrictive alternative treatment must submit an individualized plan for the minor's treatment services to the court that entered the order. An initial plan must be submitted as soon as possible following the intake evaluation and a revised plan must be submitted upon any subsequent modification in which a type of service is removed from or added to the treatment plan.

  6. For the purpose of this section, "care coordinator" means a clinical practitioner who coordinates the activities of less restrictive alternative treatment. The care coordinator coordinates activities with the designated crisis responders that are necessary for enforcement and continuation of less restrictive alternative treatment orders and is responsible for coordinating service activities with other agencies and establishing and maintaining a therapeutic relationship with the individual on a continuing basis.


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