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Q & A About Advance Directives for Psychiatric Care

Vermont law authorizes people to create Advance Directives in order for the person to have control over their medical care when they lack capacity by having previously documented their preferences regarding medical treatment.  There is no special Advance Directive for psychiatric care in Vermont;  Vermont’s Advance Directive law covers any person, with any medical condition, that wishes to execute an Advance Directive.

Below are some commonly asked questions and answers about Vermont’s Advance Directive Law:

Q: Must Medical Providers Determine if I have an Advance Directive and Must They Abide By My Advance Directive?

A: Generally Vermont law requires all medical providers to honor Advance directives.   Providers are required to investigate whether a patient has an Advance Directive unless there is a medical emergency needing immediate treatment.  Advance Directives must be consulted if the medical provider determines that the patient lacks capacity to make medical decisions.

Q:  When  Do Medical Providers Not Have to Honor an Advance Directive and What Must the Provider  Do in Such a Case?   

Vermont Law does allow medical providers to NOT follow an Advance Directive in limited circumstances.   Providers are allowed to disregard a decision by an Agent if the decision is clearly contrary to the plain language of the principal’s Advance Directive.  A provider is allowed to disregard medical direction from an Agent or an Advance Directive if to follow the direction would require the provider to commit a crime or act in a way that violates professional standards of conduct. In that case the provider must alert the Agent or the Principal about the reasons for not complying with the Advance Directive.

Vermont law also allows a medical provider to refuse to follow an Advance Directive if the provider is unwilling to follow the Advance Directive due to an ethical, moral or other conflict with the Advance Directive.  In this circumstance, the provider must alert the Agent and the Principle to their concern and must assist the patient to find a provider that will honor the Advance Directive.

Q:  What happens to the medical provider if s/he does not honor an Advance Directive and no Exception to the Duty to Honor the AD exists?

A:  If a medical provider knowingly fails to abide by an Advance Directive they are subject to review and disciplinary action by the relevant licensing entity (for example the medical practice board would review and discipline a doctor for failing to abide by an Advance Directive).  Such disciplinary action could result in suspension or loss of license.  Individual patients who are harmed by a provider’s failure to abide by an Advance Directive may also be able to bring a claim against the provider in civil court for medical malpractice.

Q: How does my Advance Directive Relate to Involuntary Psychiatric Hospitalization?

A:  Under Vermont law, a person can be involuntarily hospitalized if a doctor  and another interested person, or a judge, finds that the person has a mental illness that puts them at imminent risk of serious harm to themselves or others.  Having an Advance Directive does not prevent you from being involuntarily hospitalized under these psychiatric emergency statutes.  Your Advance Directive can include preferences for where you would rather be treated if an order for involuntary hospitalization occurs.  However your preference for which hospital you would rather be treated in acts only as a suggestion as to where you  want treatment, it does not give you a right to be treated in one hospital instead of another one.

Q:  How does My Advance Directive Relate to Psychiatric Emergency Involuntary Procedures ?

A:  Under Vermont law, if a person is being treated in a hospital psychiatric unit, the hospital is allowed to use emergency involuntary procedures (seclusion, restraint, or involuntary emergency medication) if the patient is a threat of serious imminent harm to themselves or others and no less restrictive alternative to the emergency involuntary procedures is able to significantly reduce the threat of harm. Your Advance Directive can include identification of your preferences regarding the order various emergency procedures should be used if the facility has a right to use emergency involuntary procedures  at all (ie. you are an imminent threat of serious harm to yourself or others).  Your Advance Directive does not prevent the hospital staff from using emergency involuntary procedures against you if such use of force is needed.  Identifying in your Advance Directive f what your preferences are for the order in which the involuntary procedures are used can be important to help identify if the least restrictive alternatives, as indicated in your Advance Directive, were actually employed.

Q:  How Does My Advance Directive Relate to Psychiatric Involuntary Non-Emergency Medication ?

A:  Under Vermont law hospitals are allowed to petition the court in order to obtain an order to involuntarily medicate a patient on a non-emergency basis.  The law allows the court to order such non-emergency involuntary medication for a patient who has been found to require hospitalization because their mental illness makes them an imminent danger to themselves or others and who has refused to accept the non-emergency medication deemed necessary for treatment by the doctor.  Any petition filed to get an Order for non-emergency medication must include information about the patient’s Advance Directive and their Agent, if applicable. Based on a recent Federal Court decision, if a valid Advance Directive indicates that a patient’s competently expressed preference is to refuse medications, Vermont Courts must honor that preference and deny the hospital’s request for non-emergency involuntary medication. 

Q:  How Does My Advance Directive Relate to the Powers of a Guardian if One is Appointed by a Court to Make Medical Decisions on My Behalf?

A:  Vermont law states that the directions in a valid Advance Directive must be honored, even if a guardian has been appointed.  In this case the Agent identified in the Advance Directive, and not the court-appointed guardian, will make medical decisions on your behalf.

Q:  Does my Agent Need a Special “HIPAA” Release to obtain information about my health?

A:  An Agent appointed by a validly executed Advance Directive has legal authority to access medical information about the Principal without a requirement for an additional HIPAA-compliant release.

Q: What is Part Five A Waiver of Right to Request or Object to Treatment?

A:  This Part is often referred to as the “Ulysses Clause”. It is a waiver of the right to request or object to a specific type of treatment in the future. For the principal’s protection there are additional signatures and assurances required by law. You must have an agent to fill out this section.

If you have questions about this information or have additional questions not identified above, please contact DRVT at 1-800 834 7890

Download your own Advance Directive for Health Care – Long Form (pdf)

Download your own Advance Directive for Health Care – Short Form (pdf)

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