Advance Directives

PURPOSE: This rule defines terms and establishes policies and procedures to be followed by all facilities operated by the Department of Mental Health and by other department-related facilities for assuring the rights of residents and patients to participate in and direct health care decisions affecting them. (1) Terms defined in sections 630.005, 631.005, 632.005 and 633.005, RSMo are incorporated by reference for use in this rule. Also, as used in this rule, unless the context clearly indicates otherwise, the following terms shall mean: (A) Adult—an individual eighteen (18) years of age or older; (B) Advance directive—a written instrument, such as a living will or durable power of attorney for health care, relating to the provision of health care for an individual when that individual is in a terminal condition or is incapacitated; (C) Attending physician—the physician selected by or assigned to an individual and who has primary responsibility for the treatment and care of the individual. If more than one (1) physician shares that responsibility, any of those physicians may act as the attending physician; (D) Attorney-in-fact—an individual or corporation appointed to act as an agent of a principal (resident or patient) in a written power of attorney for health care allowed under law; (E) Competent—not having been adjudicated incapacitated; (F) Death-prolonging procedure—any medical procedure or intervention that, when applied to an individual, would serve only to artificially prolong the dying process and where, in the judgment of the attending physician pursuant to usual and customary medical standards, death will occur within a short time whether the procedure or intervention is used. Deathprolonging procedures shall not include administration of medication or performance of a medical procedure considered necessary to provide comfort or care or to alleviate pain, or the performance of any procedure to provide nutrition or hydration; (G) Decision-making capacity—ability to make choices that reflect an understanding of the nature and effect of treatment options as well as the consequences of choices; (H) Department facilities—facilities operated by the department; (I) Durable power of attorney for health care—a written instrument executed by a competent adult, notarized and expressly giving an agent or attorney-in-fact the authority to consent to or to prohibit any type of health care, medical care, treatment or procedures to the extent authorized in sections 404.800–404.865, RSMo; (J) Health care—any treatment, service or procedure to diagnose or treat the physical or mental condition of a resident or patient; (K) Health care facility—an individual or agency licensed, certified or otherwise authorized or permitted by law to administer health care in the ordinary course of business or professional practice; (L) Incapacitated—unable by reason of any physical or mental condition to receive and evaluate information or to communicate decisions to an extent that an individual lacks capacity to meet essential requirements for food, clothing, shelter, safety or other care such that serious physical injury, illness or disease is likely to occur; (M) Living will—a written instrument executed by a competent adult under sections 459.010–459.055, RSMo and declaring direction for the withholding or withdrawal of death-prolonging procedures and becoming operative if the adult is in a terminal condition; (N) Patient—an individual under observation, care, treatment or rehabilitation by any hospital or other mental health facility pursuant to the provisions of Chapter 632, RSMo; (O) Resident—a person receiving residential services from a facility, other than a mental health facility, operated by the department; (P) Terminal condition—an incurable or irreversible condition that, in the opinion of the attending physician, is such that death will occur within a short time, regardless of the application of medical procedures; and (Q) Voluntary resident or patient—a person who has willingly chosen or consented to receive services from the department and who is receiving services in a department facility, or a person for whom a guardian has been appointed under Chapter 475, RSMo and the guardian has been authorized to admit the resident or patient for services from the department. (2) The department shall honor the right of all competent adult voluntary residents and patients to make decisions regarding their health care, including the right to accept or refuse medical or surgical treatment, except that if a Division of Comprehensive Psychiatric Services facility’s clinical staff determines that an emergency exists because a resident or patient is likely to do physical harm or present life-threatening behavior to him/herself or other residents or patients, the staff may administer psychotropic medication without the resident’s or patient’s consent. All competent adult residents and patients shall have the right to execute advance directives without regard to their voluntary or involuntary status. No department facility shall condition the provision of care or treatment, or otherwise discriminate against a resident or patient based on whether the individual has executed an advance directive. (3) Using materials prepared by the department, all department facilities shall provide staff and community education about advance directives and the department’s policy on carrying out those directives by department facilities. (4) Except as provided in sections (5) and (6), at the time an adult resident or patient is admitted to a department facility, the facility’s staff shall— (A) Provide written information about resident’s or patient’s rights to accept or refuse death-prolonging procedures and to execute advance directives; (B) Provide written information about the department’s policy on advance directives; (C) Ask the resident or patient if s/he has executed an advance directive; and (D) At his/her request, refer a competent adult resident or patient without an advance directive for assistance in completing one. (5) If, at time of admission, department facility staff determine that a competent adult resident or patient lacks decisionmaking capacity, for example, due to intoxication or an acute episode of mental illness, the staff shall— (A) If the resident or patient is accompanied by a friend, relative or guardian, discuss health care decisions and advance directives with that person as set out in section (4) of this rule; and (B) Document the lack of decision-making capacity in the resident’s or patient’s medical record and the discussion of health care decisions and advance directives with the friend, relative or guardian rather than the resident or patient; or (C) If the resident or patient is unaccompanied, delay a discussion of health care decisions and advance directives; and (D) Document the lack of decision-making capacity in the resident’s or patient’s medical record and that a discussion of health care decisions and advance directives was delayed. (6) For a resident or patient with whom department facility staff did not discuss health care decisions and advance directives at the time of admission as set out in section (4) because the resident or patient lacked decision-making capacity, when the staff determine that the resident or patient has regained decision-making capacity, the staff shall hold the discussion and document it in the resident’s or patient’s medical record, regardless of whether the resident or patient was accompanied at time of admission. (7) Staff of department facilities shall document in each adult resident’s or patient’s medical record whether the resident or patient has executed an advance directive. If a resident or patient has executed an advance directive, staff shall presume the resident or patient was competent when the advance directive was executed and that the advance directive was properly executed unless a court determines otherwise. Upon permission of the resident or patient, guardian or attorneyin-fact, and if a copy of the advance directive is provided by the resident or patient, guardian or attorney-in-fact, staff shall place a copy of the advance directive in the resident’s or patient’s medical record. (8) Because the department has a statutory mission to habilitate, treat or rehabilitate its residents and patients in department facilities, it shall not withhold or withdraw— (A) Food, hydration, antibiotics or antiseizure medication for the purpose of ending life; (B) Psychotropic drugs essential to treatment of mental illness that are otherwise authorized by law or department rule; or (C) Any medication, medical procedure or intervention that, in the opinion of facility staff, is necessary to prevent the suicide of a resident or patient. (9) When it is determined that a resident or patient is incapacitated or in a terminal condition and that the resident or patient has an advance directive, department facility staff shall carry out the advance directive in the facility where the resident or patient resides unless— (A) The resident’s or patient’s advance directive specifies procedures prohibited under the department policy set out in section (8); (B) The resident’s or patient’s attorney-in-fact under a durable power of attorney for health care requests procedures prohibited under the department policy set out in section (8); (C) The resident or patient is pregnant and has a living will that calls for withdrawing or withholding treatment; or (D) The head of the facility determines that the facility is not equipped to provide acute and specialized medical care needed by the resident or patient. (10) If based upon section (9) of this rule, the head of a department facility determines that the facility shall not carry out a resident’s or patient’s advance directive in the facility, the department facility staff, in conjunction with the resident or patient or the resident’s or patient’s guardian or attorney-in-fact, shall take all reasonable steps to transfer the resident or patient to a health care facility that is equipped and willing to carry out the resident’s or patient’s advance directive. At a minimum, these steps shall include, if necessary, assistance from department facility case managers in locating a health care facility that is equipped and willing to carry out the advance directive and case managers’ assistance with transferring the resident or patient to the health care facility. (11) If a resident or patient with an advance directive is transferred from a department facility to another health care facility at the request of the department, the department will pay for transportation to and care in the health care facility if all other resources available to the resident or patient have been exhausted. (12) A resident or patient may revoke an advance directive at any time and in any manner by which s/he is able to communicate, regardless of mental or physical condition. If an incapacitated resident or patient or a resident or patient in a terminal condition revokes an advance directive, department facility staff shall notify the resident’s or patient’s attorneyin-fact or legal guardian of the revocation and the manner by which the advance directive was revoked. (13) If any resident or patient notifies department facility staff in any manner by which s/he is able to communicate that s/he wishes to revoke an advance directive, department facility staff shall immediately document the revocation in the resident’s or patient’s medical record and the manner by which the advance directive was revoked and shall notify orally any other staff known to be involved in the resident’s or patient’s health care. (14) An advance directive also shall be revoked upon execution of a subsequent advance directive by the resident or patient. (15) No department employee may recommend or otherwise suggest to a resident or patient that the resident or patient alter or revoke his/her advance directive. (16) Department facility staff shall act upon a revocation of a resident’s or patient’s advance directive when the resident or patient is incapacitated or in a terminal condition and is not able to make treatment decisions if— (A) The revocation is documented in the resident’s or patient’s medical record; or (B) The staff member in charge of the resident’s or patient’s treatment at that time has actual knowledge of the revocation. (17) Department facility staff shall periodically review the status of resident’s and patient’s advance directives as necessary or when requested by the resident or patient or the guardian or attorney-in-fact. (18) Except to the extent the right is limited by the durable power of attorney for health care or any federal law, an attorney-in-fact under a durable power of attorney for health care has the same right as the resident or patient to receive information about health care proposed for the resident or patient, to receive and review the resident’s or patient’s medical records and to consent to disclosure of the medical records, except that the right of access to medical records is not a waiver of any evidentiary privilege. (19) No employee of a department facility shall serve as an attorney-in-fact under a durable power of attorney for health care for any resident or patient receiving care or treatment at the facility at which the employee works unless that employee is related by marriage or consanguinity within the second degree or unless the employee and resident or patient are members of the same community of persons who are bound by vows to a religious life and who conduct or assist in the conducting of religious services and actually and regularly engage in religious, benevolent, charitable or educational ministry, or the performance of health care services. AUTHORITY: section 630.050, RSMo 1986.* Original rule filed June 30, 1992, effective April 8, 1993. *Original authority: 630.050, RSMo 1980.