Section 22-A105. ADVANCE DIRECTIVES AND INSTRUCTIONS

 

105.1Each consumer has the right to make health care decisions for himself or herself, including the right to accept or refuse life-sustaining medical treatment if such treatment becomes necessary, unless certified as incapacitated pursuant to D.C. Code § 21-2204. In addition, each mental health consumer has the right to execute advance directives to be used if a determination is made that the consumer lacks the capacity to make a health care decision.

 

105.2An advance directive is a written document signed by a consumer that indicates the consumer's preferences regarding medical treatment decisions, including mental health treatment, and may be in the form of:

 

(a)A validly executed and current living will prepared in accordance with the requirements of § 3 of the Natural Death Act of 1981, effective February 25, 1982 (D.C. Law 4-69; D.C. Official Code § 7-622);

 

(b)A validly executed and current durable power of attorney for health care prepared in accordance with the requirements of § 6 of the HCDA (D.C. Official Code § 21-2205), which may include an advance directive for health or mental health treatment; or

 

(c)A validly executed declaration of advance instructions for mental health treatment prepared in accordance with the requirements of § 105.7 of this chapter.

 

105.3The existence of a living will, durable power of attorney for health care, advance directive or declaration of advance instructions for mental health treatment shall not affect a consumer's right to make decisions about the receipt of particular mental health services or mental health supports when the consumer is capable of making such decisions.

 

105.4Each MH provider shall establish a system to verify whether each consumer receiving mental health services from the MH provider has prepared a living will, a durable power of attorney for health care or a declaration of advance instructions (Advance Directive Verification System). The Advance Directive Verification System shall include the following elements:

 

(a)An explanation of advance directives and advance instructions in language the consumer can understand;

 

(b)An opportunity for the consumer to give the MH provider a copy of the consumer's current living will, durable power of attorney for health care or declaration of advance instructions; and

 

(c)An opportunity for the consumer to execute a living will, durable power of attorney for health care or declaration of advance instructions.

 

105.5Each MH provider shall ensure that the living will, durable power of attorney for health care or declaration of advance instructions executed by each consumer receiving mental health services from the MH provider becomes part of the consumer's clinical record.

 

105.6Each MH provider shall establish a system to ensure that the clinical record for each consumer receiving mental health services from the MH provider is updated to reflect any changes to the consumer's living will, durable power of attorney for health care, or declaration of advance instructions.

 

105.7A valid declaration of advance instructions shall:

 

(a)Be written;

 

(b)Include the signature of at least one adult witness who is not related to the consumer by blood or marriage, who is not employed by DMH or the MH provider, and who is not the consumer's attending physician;

 

(c)Include acknowledgment that the witness believes the consumer is able to express the preferences set forth in the declaration of advance instructions; and

 

(d)Be signed and dated by the consumer.

 

105.8A consumer may be capable of executing a durable power of attorney for health care even though a determination has been made, pursuant to the HCDA, that the consumer lacks the capacity to make a treatment decision. In the absence of a durable power of attorney for health care, the MH provider will rely on a substitute decision maker as identified in § 11 of the HCDA (D.C. Official Code § 21-2210).

 

source

New by emergency and proposed rulemaking at 49 DCR 3058(July 19, 2002)[EXPIRED]; as amended by emergency and proposed rulemaking at 49 DCR 8768(September 20, 2002)[EXPIRED]; Final Rulemaking published at 49 DCR 11245 (December 13, 2002).