May 14, 2021

Recent legislative changes (ESSB 5370) to the Washington Mental Health Advance Directive law should broaden its use in behavioral health and provide an important and updated decision-making model form for individuals experiencing a behavioral health crisis.  

Background: A mental health advance directive allows competent individuals to express their preferences about future medical treatment in the event the individual becomes incapacitated and unable to make such decisions. Washington’s law is based on the fundamental premise that an individual with capacity has the ability to control decisions related to the individual’s behavioral health and is intended to provide a legal mechanism to express preferences for behavioral health treatment during periods of incapacity. Directives can be valuable planning tools and are typically used to specify the types of medical treatment to be provided and the circumstances in which the individual would want medical treatment withdrawn or withheld. Advance directives often incorporate or accompany a durable power of attorney for health care, which authorizes an attorney-in-fact to provide informed consent for health care decisions on the incompetent principal’s behalf, or the nomination of a guardian for consideration by the court if guardianship proceedings are commenced. Washington’s original law (RCW 71.32) was adopted in 2003.     

2021 Changes: The statute was modified to make several substantive changes:

  • Expanded Definitions. The Legislature created new definitions for behavioral health disorders and substance use disorders in addition to the existing definition of mental disorders. These definitional changes are an important step in expanding the scope and usefulness of directives to provide preferences and instructions in the event of an individual’s incapacity resulting from a breadth of behavioral health disorders, not just mental disorders and aligning with other existing statutory definitions. Pursuant to these changes, “behavioral health disorder” is defined as a mental disorder, a substance use disorder, or a co-occurring mental health and substance use disorder. The existing term “mental disorder” includes any organic, mental, or emotional impairment that has substantial adverse impact on an individual’s cognitive or volitional functions. The new “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.
  • Role for Substance Use Disorder Professionals. Consistent with the new definitions to explicitly encompass substance use disorders, determinations of capacity may be made by one mental health professional or substance use disorder professional and one health care provider.
  • Application to Persons. The scope of the law has expanded from applying to “adults” to “persons” and including within the definition of “persons” those who are at least 13 years of age but under the age of majority, provided that the person is able to demonstrate that they are capable of making informed decisions related to behavioral health care.
  • Refreshed Model Form. Importantly, the model form has been substantially revised to make it more understandable and focused on key information for clinicians and the wishes of those who want to execute an advance directive.
  • Other Changes. Lastly, the amendments clarify that:
    • A notary may acknowledge the directive as an alternative to two witnesses; that the agent appointed during periods of incapacity may also act as the individual’s personal representative under HIPAA;
    • Nothing in the statute is intended to restrict the right of a parent to seek behavioral health evaluation and treatment using the family-initiated treatment laws;
    • An agent’s authority terminates when an action is filed for the dissolution, annulment or legal separation of the agent’s marriage or domestic partnership with the principal;
    • Reevaluation of incapacitated individuals admitted to inpatient treatment must now occur within 120 rather than 72 hours of a request by the agent or a change of condition indicates that capacity may have been regained; and
    • In evaluating less restrictive treatment alternatives under RCW 71.34.755, consultation about a mental health advance directive is required.

Recommended Actions: Organizations that have existing mental health advance directive policies should review and revise their policies to incorporate the changes in law and those organizations now required to discuss mental health advance directives should assure they have policies and training in place to guide their staff.