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P.L.2005, c.233 Advance Mental Health Directive

September 22, 2005

New Jersey Advance Directives for Mental Health Care Act.

This bill, which is designated the "New Jersey Advance Directives for Mental Health Care Act," provides explicit statutory authorization for a competent adult to execute an advance directive for mental health care that specifies preferences for mental health services in the event that the declarant is subsequently determined to lack decision-making capacity.

Specifically, the bill provides as follows:

  • An advance directive for mental health care may include:
    • a proxy directive for mental health services, which designates a competent adult to act as the declarant's mental health care representative; or
    • an instruction directive, which specifies preferences for mental health services in the event that the declarant is subsequently determined to lack decision-making capacity (and which may, but need not, be executed contemporaneously with, or be attached to, a proxy directive).
  • An advance directive is to be signed and dated by, or at the direction of, the declarant in the presence of at least one subscribing adult witness, who must attest that the declarant is of sound mind and free of duress and undue influence.
  • A declarant may state in an advance directive for mental health care, including a proxy directive or an instruction directive, or both, whether the declarant wishes to be able to modify, revoke or suspend the advance directive after it has become operative. If a declarant does not include such a statement in the advance directive, the advance directive is not subject to the patient's modification, revocation or suspension after it becomes operative.
  • A competent adult designated by a declarant to act as the declarant's mental health care representative, by means of a proxy directive, may include any person of the declarant's choosing; except that an operator, administrator or employee of a psychiatric facility in which the declarant is a patient or resident is prohibited from serving as the declarant's mental health care representative unless the operator, administrator or employee is related to the declarant by blood, marriage, domestic partnership or adoption.
  • An instruction directive may include: a statement of the declarant's general mental health care philosophy and objectives; the declarant's specific wishes regarding the provision, withholding or withdrawal of any form of mental health care; or both.
  • An advance directive for mental health care becomes operative:
    • when it is transmitted to the attending mental health care professional or the psychiatric facility; and it is determined pursuant to the bill that the patient lacks capacity to make a particular mental health care decision; or
    • at an earlier date if stipulated by the declarant in the advance directive.
  • The attending mental health care professional is to determine in writing whether the patient lacks the capacity to make a particular mental health care decision. The determination is to: include the attending mental health care professional's opinion concerning the nature, cause, extent and probable duration of the patient's incapacity; be made a part of the patient's medical records; and be confirmed in writing by one or more mental health care professionals.
  • A determination of lack of decision-making capacity under the bill is solely for the purpose of implementing an advance directive for mental health care, and is not to be construed as a determination of a patient's incapacity or incompetence for any other purpose.
  • If it has been determined that the patient lacks decision-making capacity, a mental health care representative is to have authority to make health care decisions on behalf of the patient pursuant to the provisions of the advance directive for mental health care and this bill.
  • The conferral of legal authority on the mental health care representative is not to be construed to impose liability upon that person for any portion of the patient's health care costs.
  • The mental health care representative is to seek to make the mental health care decision that the patient would have made if the patient possessed decision-making capacity under the circumstances, or, when the patient's wishes cannot adequately be determined, to make a mental health care decision in the best interests of the patient.
  • The attending mental health care professional is required to:
    • make an affirmative inquiry of the patient, the patient's family or others, as appropriate under the circumstances, concerning the existence of an advance directive for mental health care and
    • include this information in the patient's medical records.
  • If a mental health care representative is authorized to consent to the patient's admission to a psychiatric facility pursuant to the bill and the attending mental health care professional has obtained informed consent for admission from the mental health care representative, the attending mental health care professional may admit the patient based upon the attending mental health care professional's findings and recommendations.
  • If the instruction directive, in conjunction with other evidence of the patient's wishes, does not provide, in the exercise of reasonable judgment, clear direction as applied to the patient's mental health condition and the treatment alternatives, the mental health care representative is to exercise reasonable discretion, in good faith, to effectuate the provisions, intent and spirit of the instruction directive and other evidence of the patient's wishes.
  • A psychiatric facility is required to adopt policies and practices as necessary to: provide for routine inquiry, at the time of admission, and at other times as appropriate under the circumstances, concerning the existence and location of an advance directive for mental health care; and provide appropriate informational materials concerning advance directives for mental health care to all interested patients and their families and mental health care representatives.
    • adopt policies and practices as necessary to inform mental health care professionals of their rights and responsibilities under the bill.

The provisions of the bill are not to be construed to supersede any court order relating to, or the provisions of any other statute governing, commitment or admission to a psychiatric facility or the provision of mental health care treatment. Any conflict between a court order or the provisions of another statute and the provisions of an advance directive for mental health care, which renders those provisions of the advance directive invalid, is not to be deemed to invalidate any other provisions of the advance directive that do not conflict with the court order or statute.

The Commissioners of Health and Senior Services and Human Services, in consultation with each other, are to adopt rules and regulations, with regard to the psychiatric facilities under their respective regulatory jurisdictions, to provide for the annual reporting by psychiatric facilities to the Department of Health and Senior Services, and the gathering of such additional data, as is reasonably necessary to oversee and evaluate the implementation of the bill.

The Departments of Health and Senior Services and Human Services are to jointly evaluate the implementation of the bill and report to the Governor and the Legislature, including recommendations for any changes deemed necessary, within five years after its effective date.

The bill provides immunity from criminal or civil liability to a mental health care representative, mental health care professional or psychiatric facility for actions performed in good faith and in accordance with the provisions of the bill.

Nothing in the bill is to be construed to impair the legal force and effect of an advance directive for health care executed pursuant to the New Jersey Advance Directives for Health Care Act (N.J.S.A.26:2H-53 et seq.) either prior to or after the enactment of this bill.

An advance directive for mental health care that is validly executed under the laws of another jurisdiction and complies with New Jersey law is validly executed for the purposes of this bill.

The bill provides for penalties for a violation of its provisions by a mental health care professional or psychiatric facility, and makes it a crime of the fourth degree (punishable by imprisonment for up to 18 months or a fine of up to $10,000, or both) for a person to: willfully conceal, cancel, deface or obliterate an advance directive for mental health care without the declarant's consent; falsify an advance directive for mental health care; coerce or fraudulently induce the execution of an advance directive; or require or prohibit the execution of an advance directive as a condition of coverage under an insurance policy or government program, or as a condition of providing health care.

The bill takes effect on the 180th day after enactment, but authorizes the Commissioners of Health and Senior Services and Human Services to take anticipatory administrative action in advance as necessary for its implementation.

Resources

  • Identical Bill Number: A3833
  • Legislative Action:
    • 3/1/2005 Introduced in the Senate, Referred to Senate Health, Human Services and Senior Citizens Committee
    • 5/23/2005 Reported from Senate Committee with Amendments, 2nd Reading
    • 6/23/2005 Senate Amendment (37-0)(Cardinale)
    • 6/27/2005 Passed by the Senate (37-0)
    • 6/27/2005 Received in the Assembly without Reference,2nd Reading
    • 6/30/2005 Substituted for A3833 (2R)
    • 6/30/2005 Passed Assembly (Passed Both Houses)(79-0-0)
    • 9/22/2005 Approved P.L.2005, c.233
  • Associated Documents

Posted by Stephen J. Hyland at September 22, 2005 8:35 AM

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