The Declaration for Mental Health Treatment (“Declaration”) lets a person make some choices about the mental health treatment the person may want to receive at some future time when the person is not capable of giving consent. It also lets a person appoint a friend or relative to make these choices for him or her.  A completed Declaration form allows a doctor to treat a person even though the person cannot give consent.

AREAS COVERED BY THE DECLARATION FOR MENTAL HEALTH TREATMENT

A person can decide in advance what he or she wants for future mental health care, including his or her wishes regarding medications, admission and staying at a mental health treatment facility (for no longer than 17 days), convulsive treatment as well as outpatient services.  The Declaration form is divided into 3 areas:

1.      Mental health treatments that you consent to;

2.      Mental health treatment that you do not consent to; and

3.      Additional information about your mental health.

  On the form, a person can list his or her preferences for mental health care.  A person can list treatments that work really well and treatments that do not work.  For example, a person can say that when he or she is highly agitated, sitting in a dark room with the door open is calming, but that closing and locking the door makes things much worse.  A person may identify support people he or she wants to be notified as well as people he or she does not agree to provide notice to when the person is in crisis.

  A person can make choices regarding medications.  A person can consent to certain medications and refuse consent for other medications.  A person can specify dosages of drugs or refuse consent for all medications.  A person can consent to any medications the doctor recommends. A person could list medications he or she refuses to take and corroborate each refusal by documenting the adverse side effects and/ or allergies the person has experienced from a particular medication.  A person can consent or refuse to consent to shock treatment. If a person consents to shock treatment, he or she can set limits of how often and how much.

  A person can refuse to or consent to being admitted to a hospital or other mental health treatment facility.  If a person agrees to being admitted, he or she can limit the number of days in the hospital.  The most days a person can agree to stay in the hospital or mental health facility is 17 days.  If the doctor thinks a person needs to stay longer and the person cannot or will not agree to stay, then the only way the doctor can force the person to stay in the hospital is through the civil commitment process.  In addition to consenting or refusing hospitalization, a person also can consent to admission to some specific facilities and refuse consent to enter other specific facilities.

It is important to know that the doctor does not have to follow these instructions.  However, if the doctor is aware of what works and what does not work, he or she may be willing to try the suggestions. 

APPOINTMENT OF A REPRESENTATIVE

A person can appoint a person to be a “Representative”.  A Representative can make decisions for the person if he or she cannot make decisions.  A Representative may be a friend, relative or other person who can be trusted to make important treatment decisions.  The person chosen as Representative has to sign the Declaration form to show he or she agrees to be the Representative.

A second person can be appointed as an alternate Representative.  This person acts as the Representative if the first person refuses, is unable to act or his or her authority to act has been revoked.

The Representative must follow the directions given in the Declaration.  If the Declaration does not give specific directions, the Representative should do what the person has said he or she wants done. If the Representative has not been told what to do, the Representative should act in the best interests of the person.  The Representative has access to the medical records concerning treatment decisions.

  A Representative can be very helpful because he or she can act as an advocate.  A Representative may be able to get things to happen that the person cannot.  A doctor or provider may pay more attention to the Representative than to the person being treated for mental disability.

COMPLETION AND DISTRIBUTION OF THE MENTAL HEALTH DECLARATION

After filling out the Declaration  form, the person must sign it and have it signed by two witnesses.

The person’s appointed Representative, alternate Representative, doctor, mental health care provider, and counselor cannot be witnesses.  In addition, the owner or operator of a facility of which the person is a resident or the relatives of the owner or operator cannot be witnesses. No one to whom the person is related can be a witness.  The witnesses in signing the form acknowledge that: the person signed the Declaration; the person is believed to be mentally competent at the time of signing the form; and the person is not believed to be under duress, fraud or undue influence at the time of signing the form.

Any Representative as well as any alternate Representative who is appointed must sign the Declaration form.

When the Declaration is completed and signed, the person should give it to his or her doctor and other mental health care providers.  A person should carry the Declaration so it can be shown to anyone who might be going to give treatment.  If a doctor does not know about the Declaration, then the doctor does not have the information necessary to follow the terms of the Declaration.

REVOCATION OF THE MENTAL HEALTH DECLARATION

The Declaration can be revoked or changed.  To revoke the Declaration, the person must tell his or her doctor, provider, Representative and anyone else who has the Declaration that it is being revoked or changed.  To be safe, this should be done in writing or all the copies of the Declaration  should be retrieved and destroyed.  Also, the Declaration cannot be revoked or change during a time when the person has been found incapable.  ORS 127.722.

LENGTH OF TIME THE DECLARATION FOR MENTAL HEALTH TREATMENT IS VALID

A Declaration stays in effect for three years unless revoked.  After three years, it is no longer valid. A new declaration must be signed every three years.  If a person is incapable at the end of the three years, the declaration stays in effect until he or she is capable again.  ORS 127.702(2).

DECLARATION FOR MENTAL HEALTH TREATMENT CANNOT BE REQUIRED

No one can force a person to have a Declaration and no one can prevent a person from having one.  The law specifically says that a person cannot be required to execute or refrain from executing a declaration as a criterion for insurance, as a condition of receiving mental health treatment or as a condition of discharge from a health care facility.  ORS 127.715.

PRECAUTIONS

The Declaration is not something everyone will want to do.  The main advantage of the Declaration is that it lets a doctor treat a person at a time when usually the doctor could not provide treatment because the person is not able to consent.  The Declaration can help a person get treatment without going through the commitment process and without delay. Also, a person can use the Declaration to give a doctor information and to plan and think about how he or she would like to be treated in the future.

The disadvantage is that a person can be treated and hospitalized without agreeing at the time it is happening.  If the Declaration provides consent for hospitalization, then the doctor can hold a person in the hospital even though he or she does not want to be there.  No attorney will be appointed and no hearing will be held.

If a person has a Declaration and is incapable of making decisions, the doctor can treat by following the instructions.  But, this does not mean the person will get the treatment requested and authorized.  The doctor still has to agree that the treatment requested is medically appropriate.

The Declaration form asks a person to make important decisions about their mental health treatment, including mental health treatments that the person consents to; mental health treatment that the person does not consent to; and additional information about the person’s mental health treatment needs.  This information may include, but is not necessarily limited to, medications, hospitalization and mental health history, religious concerns, people to notify.

  The form does not provide any information about the benefits or side effects of medications, the appropriate uses of specific medications or alternative types of treatment available.  Anyone filling out a Declaration should find out about specific medications and about shock treatment before agreeing to receive them.  A person considering whether to complete a Declaration should talk to his or her doctor or mental health provider about the possible choices.

SITUATIONS IN WHICH THE DECLARATION FOR  MENTAL HEALTH TREATMENT IS NOT VALID

  In some situations, the doctor can provide treatment contrary to the directions in the Declaration. These situations are:

1.      Commitment -A person who is civilly committed can be hospitalized without consent. The doctor can give drugs and/or administer shock treatment without consent under some circumstances. See pages 28-29, “Involuntary Treatment Outside the State Hospital”, for a discussion of involuntary medications.  The doctor has to follow certain rules before a doctor can treat a person who cannot consent. ORS 127.720(1)(a).

2.      Emergency - In an emergency situation where life or health is endangered, a doctor can treat without consent. ORS 127.720(1)(b).

3.      Precommitment hold - A person who has a mental disability and is dangerous to self or others can be held in a hospital without consent.  A person held on a precommitment hold will be released or have a hearing within five working days.  ORS 127.720(2)

WHERE TO GET THE DECLARATION FOR MENTAL HEALTH TREATMENT FORMS AND EXPLANATIONS

The Mental Health and Developmental Disability Services Division (MHDDSD) has booklets that contain the forms and provide explanations of the forms and the law.  To obtain this booklet, write to:  Mental Health and Developmental Disability Services Division, P.O. Box 14250, Salem, Oregon 97309-0740 or call MHDDSD at (503) 945-9700; or call the Oregon Advocacy Center at (503) 243-2081 (toll free at 1-800-452-1694) or TTY (503) 323-9161 (toll free at 1-800-556-5351).