The law where you live

Australia is a commonwealth of federated states and territories with each having unique mental health legislation. Victoria (a state in Australia) implemented Advance Statements into mainstream mental health care in 2014, allowing individuals within the mental health setting to document preferences for care and treatment during times when individuals may not be capable or in a position to explain these in full to treating health care professionals. Advance Statements under the 2014 Act have recently been renamed ‘advance statement of preferences’ in the new 2022 Mental Health and Wellbeing Act.

In Victoria, an Advance Statement of preference can be made to document preferences for care, including selecting of preferred treatments, as well as preferences about any aspects of care and support, not just treatment preferences. Additional care preferences may also be considered, including preferences around the use of restrictive practices (seclusion and restraint); or specific information which could be included to assist health care staff in caring for and informing treatment decisions for a person. Advance Statements of preferences may also outline instructions for all health care staff about the importance of measures and choice that promote self-determination and dignity, as well as selection of engagement and approach styles preferred of the person.

Under the new mental health legislation in Victoria, Advance Statements can be witnessed by any adult. The way an Advance Statement of preference works is that when a person is admitted to care and where a person has a statement, a designated mental health service must also ensure all reasonable efforts are made to give effect to the statement. Where a treatment decision is made that does not accord with treatment preferences, expressed in an Advance Statement of preferences, an authorised psychiatrist must provide written reasons within 10 business days to the person.

Colombia is a unitary, decentralized Latin-American republic with autonomy of its territorial entities. Although it has a Mental Health Law (Law 1616 of 2013), it does not include any tool to facilitate decision-making in mental health services. It was not until 2018 that the Ministry of Health and Social Protection issued a Resolution (2665) that established the creation of the “Document for anticipated will”. This tool allows "any capable, healthy or sick person, in full use of their legal and mental faculties and in anticipation of not being able to make decisions in the future, to declare, in a free, conscious and informed way, their will about the preferences at the end of life that are relevant to their framework of personal values." These documents can be signed with the treating doctor, at Notaries' Offices or, alternatively, signed with two witnesses.

In 2019, Colombia completely reformed the legal capacity regime applicable to persons with disabilities, through Law 1996 of 2019, abolishing the figures of substitution in decision-making and creating a support decision-making system for those people who require it, in accordance with their rights, will and preferences. One of these mechanisms is “Advance Directives”. This mechanism allows a person, with legal age, to establish the reliable expression of will and preferences in decisions relating to one or more legal acts, in advance of those acts. These decisions may relate to health, financial or personal matters, among other acts aimed at having legal effects. These documents can be formalized at Notaries' Offices and Conciliation Centers and must have the participation of the person and the support person(s) if it is required.

The person can follow the same formalization procedure to change the content of their advance directive. The signing of the advance directive does not invalidate the will and preference expressed after the advance directive is formalized, except if it is an expression of will and preferences that contravenes the provisions of what is called “a perennial will clause”, which allows to invalidate the late expression of will and preference that contradicts the content of the advance directive content in the perennial will clause.

There are two main statutory frameworks for ACDs in England and Wales.

The first is the Mental Capacity Act 2005, which sets out how to respond to a situation where a person may not have the ability (capacity) to make their own decision. The Mental Capacity Act 2005 allows those over 18 to do two things (separately or together). The first is to make an advance decision to refuse treatment which, if it complies with the relevant requirements, serves as a complete bar to that treatment being provided at a point where the person lacks the capacity to decide whether or not to have the treatment. The second is to make an advance statement, which can either seek to refuse something which is not medical treatment, or to request something, including medical treatment. An advance statement does not have to be followed, but must be taken into account when a decision is being made about what is in the person’s best interests at a point that they lack the capacity to take their own decision.

The second is the Mental Health Act 1983, which sets out a framework for admission and detention for assessment and treatment of mental disorder. There is limited provision with the Act for people to make advance decisions in relation to Electroconvulsive Therapy and treatment under Community Treatment Orders. The Code of Practice to the Mental Health Act 1983 seeks to guide professionals to take account of choices expressed in advance by those who subject to the Act. No advance choices expressed in relation to either detention or treatment for mental disorder are currently binding under all circumstances.

The importance of placing ACDs on a statutory footing was emphasised by the independent Review of the Mental Health Act 1983 in 2018, and again in 2023 by the joint Parliamentary Committee set up to scrutinise the draft Mental Health Bill prepared in response to the Review. At the time of writing, there is unfortunately no certainty as to when this will happen, or precisely what will be covered.

Advance choice documents (Patientenverfügungen) are legally binding in Germany under the Civil Code (Bürgerliches Gesetzbuch) Section 1827. The Civil Code is federal law and applies in all German states (Bundesländer). People can use advance choice documents to state their treatment preferences for a later point of time where they lack mental capacity. In an advance choice document, people can state their preferences for the treatment of both somatic and mental health conditions and can either give consent to or refuse specific treatments in advance.

For an advance choice document to be valid, the person who wrote it must be at least 18 years old and have mental capacity (Einwilligungsfähigkeit) at the time of writing, the document must be in written form and signed by the person, and the document must clearly describe which treatment the person prefers or refuses in which situation. The mental capacity of the person does not have to be assessed at the time of writing but can be presumed unless there are concrete indications that the person lacks mental capacity. Registration at a notary and updating are not required.

The advance choice document applies when the person who has written it lacks mental capacity regarding a treatment decision and the advance choice document gives clear enough instructions regarding this treatment decision. If the preferences and instructions stated in the advance choice document are sufficiently clear, health professionals are under an immediate legal obligation to act according to them. If the stated preferences and instructions are not sufficiently clear, the person’s legal guardian (Betreuer) or self-appointed legal representative (Bevollmächtigte) must interpret the document and make a treatment decision based on this interpretation with the aim of giving expression to the person’s will and preferences.

According to the Civil Code Section 1832, involuntary medical treatment is legally permissible only if it is compatible with the person’s advance choice document (if such a document is available). Advance choice documents cannot be used to refuse involuntary hospital admission or the use of coercive measures for situations in which one’s behavior poses an imminent risk of substantial harm to others.

Recommendations

Consult with your treating mental health professional or another psychiatrist you trust to ensure that the preferences that you document in your advance directive are sufficiently specific and clear.

Distribute copies of your advance choice document among people who are likely to be involved in your treatment (e.g., a trusted closed one and the treatment team).

Although not required for the document to be valid, updating your advance choice document at set times as well as after it has been put to use is recommended.

References

Civil Code Section 1827: https://www.gesetze-im-internet.de/bgb/__1827.html

Civil Code Section 1831: https://www.gesetze-im-internet.de/bgb/__1832.html

A clarification of German legislation in relation to the treatment of people with mental health conditions, with a focus on German guardianship law in relation to medical decisions (Civil Code Sections 1814-1834) can be found in:

Henking, T., and M. Scholten. 2023. “Respect for the will and preferences of people with mental disorders in German law.” In Capacity, Participation, and Values in Comparative Legal Perspective, edited by C. Kong, J. Coggon, P. Cooper, M. Dunn and A. R. Keene, 203–225. Bristol: Bristol University Press. https://doi.org/10.51952/9781529224474.ch012.

India's Mental Healthcare Act, 2017 (MHCA) recognises the right of every person (above 18 years of age) to make an advance directive. An advance directive is a written document in which any person can describe (a) the way they wish to be treated and cared for a mental illness (b) the way they wish not to be treated and cared for a mental illness. A person can also appoint in their advance directive, a nominated representative who will provide support and make treatment decisions on behalf of the person. The advance directive applies only to future situations when the person has a mental illness, but does not have the capacity to make their own treatment and care decisions (with or without support). It does not apply to situations where emergency treatment is being provided to the person.

A person (above 18 years of age) can make an advance directive by writing it in the format prescribed by the government and registering it with the nearest Mental Health Review Board in their local area. After the advance directive is registered, a copy has to be provided to the mental health professional before treatment begins. A mental health professional has a legal duty to provide treatment according to the registered advance directive.

A person can change their advance directive by submitting and registering a new advance directive with the Mental Health Review Board. If an advance directive cannot be followed, then any person can submit an application to the nearest Mental Health Review Board to modify or revoke the advance directive.

Advance choice documents are regulated in the form of self-binding directives under the Law on Compulsory Mental Health Care (Wet verplichte geestelijke gezondheidszorg, Wvggz) Section 4. The Law on Compulsory Mental Healthcare applies nationwide. Self-binding directives are a subtype of advance choice documents which also include the possibility to give consent in advance to involuntary hospital admission and treatment in a future mental health crisis.

For a self-binding directive to be valid, the person who wrote it must be at least 16 years old and have mental capacity. The mental capacity of the person must be confirmed by an independent psychiatrist or psychologist. In addition, the self-binding directive must be signed by the person, the treating mental health professional, and the chief psychiatrist (geneesheer directeur); and the document must state (a) the circumstances in which compulsory care should be provided, (b) the kind of care that must be provided, (c) the maximum duration of compulsory care, (d) discontinuation criteria for compulsory care, (e) the period of validity of the SBD, and (f) the contact information of relevant close ones and other trusted parties.

The self-binding directive applies when the circumstances described in the self-binding directive obtain and the person lacks mental capacity with regard to the medical decision at hand. In addition, a judge must authorize the provision of compulsory care based on instructions from a self-binding directive by granting a care authorization (zorgmachtiging). An application for a care authorization can be initiated by the treating mental health professional of the chief psychiatrist (geneesheer-directeur).

Recommendations

Involve a person of trust in the process of drafting the self-binding directive; this should be a person who is in the position to observe whether the circumstances described in your self-binding directive obtain.

Ensure, in consultation with your treating mental health professional, that the content of your self-binding directive is sufficiently clear and specific.

Ensure that your person of trust is aware of the instructions in your self-binding directive.

Ask your treating mental health professional and the chief psychiatrist (geneesheer-directeur) to consult with the office of the public prosecutor in advance to ensure that timely intervention in a mental health crisis is possible.

References

Section 4 of the Dutch Law on Compulsory Health Care (Wet verplichte ggz, Wvggz) on self-binding directives: https://wetten.overheid.nl/BWBR0040635/2023-10-01#Hoofdstuk4

A website of the Dutch government with information about coercion in healthcare: https://www.dwangindezorg.nl/

A clarification of the regulatory framework for self-binding directives in the Netherlands can be found in:

Scholten, Matthé, Laura van Melle, and Guy Widdershoven. 2021. “Self-binding directives under the new Dutch Law on Compulsory Mental Health Care: An analysis of the legal framework and a proposal for reform.” International Journal of Law and Psychiatry 76: 101699. https://doi.org/10.1016/j.ijlp.2021.101699.

Experiences of people who completed a self-binding directive and clinicians who provided support are described in:

Van Melle, Laura, Lia van der Ham, Yolande Voskes, Guy Widdershoven, and Matthé Scholten. 2023. “Opportunities and challenges of self-binding directives: An interview study with mental health service users and professionals in the Netherlands.” BMC Medical Ethics 24 (38). https://doi.org/10.1186/s12910-023-00915-y.

Recommendations for the implementation of self-binding directives are given in:

Scholten, M., S. Efkemann, M. Faissner, M. Finke, J. Gather, T. Gergel, L. van der Ham, G. Juckel, A. L. van Melle, G. Owen, S. Potthoff, L. A. Stephenson, G. Szmukler, A. Vellinga, J. Vollmann, Y. Voskes, A. Werning, and G. Widdershoven. 2023. “Implementation of self-binding directives: Recommendations based on expert consensus and input by stakeholders in three European countries.” World Psychiatry 22 (2): 332-333. https://doi.org/10.1002/wps.21095.

Peru is a constitutional democratic republic in Latin America. In the last few years, it has been on the spotlight of disability rights due to its radical change of its civil legislation regarding the legal capacity of persons with disabilities. In 2018, through the Legislative Decree 1384, Peru abolished explicit disability-related guardianship and recognized supports and safeguards for persons with disabilities.

In 2019, through the Supreme Decree N° 016-2019-MIMP, the Government provided instructions on the recognition of supports, including ones established for the future. In that sense, Peru has not explicitly recognized advanced directives (advance choice documents). However, by appointing a support for the future and instructing it explicitly on what to do in certain circumstances, Peru has allowed for a present will to manifest itself in the future in a binding way, making it analogous to an advanced directive (advance choice document).

The Decree recognizes that any person can designate future supports, in anticipation of a situation of disability or a coma. For that, the public deed needs to contain the name of the support (or supports), the scope and duration of the representation and the acceptance of the person. This can be done in front of a notary. The designation can be modified or revoked, if it follows the same formality (public deed in front of a notary). The notary must carefully establish in which moment the support will come into force. Besides the formalities of the modification and revoke, there are no other dispositions regarding the discrepancies between an advanced directive and a current will.

In the Republic of Ireland, advance choice documents exist as advance healthcare directives (AHDs). The Assisted Decision Making (Capacity) Act, 2015 governs AHDs uniformly across all counties.

AHDs are written statements about the type of treatment (medical, surgical or psychiatric) you would like to refuse or to receive in the future, if you are no longer able to make or communicate your choices. In other words, they only come into effect when your decision-making capacity is impaired.

You can appoint a designated healthcare representative in your AHD. This is someone who can act on your behalf to advocate and support the treatment preferences you have outlined in your AHD.

You can include requests for specific treatments. Requests for treatment are not legally binding, but will be taken into consideration by your healthcare provider.

You can also include refusal of a treatment. In most circumstances, a refusal of treatment is legally binding, if you have outlined the specific circumstances in which you want the refusal to apply.

If you are undergoing involuntary psychiatric treatment under the Mental Health Act 2001, and you have outlined a refusal of a specific psychiatric treatment in an AHD, the AHD is legally binding unless you have been detained on the basis of risk.

Your AHD must be in writing and signed by you, two witness, and your designated healthcare representative if you have one. You may find it helpful to consult your doctor if you plan to make an AHD. In addition you can find more information about AHDs and other aspects of the Assisted Decision Making (Capacity) Act, 2015 on the Decision Support Service website at https://decisionsupportservice.ie

Across Scotland, for people with mental health difficulties, who would like to express their wishes and preferences there is provision for the creation of ‘Advance Statements’ under the Mental Health (Care and Treatment) (Scotland) Act 2003. These are written statements made when a person is well setting out the care and treatment they would prefer or would dislike, should they become mentally unwell in the future. There is further information about creating advance statements on the website of the Mental Welfare Commission for Scotland, a statutory independent organisation that has a role to protect the rights of people with mental illness, learning disability, dementia and related conditions.

Although there is no statutory provision for the creation of advance choice documents for physical health, in practice health care professionals would consider information presented about a person’s past wishes in keeping with the principles of the Adults With Incapacity (Scotland) Act (2000) that governs the care and treatment of people who might lack capacity with regards a particular decision.

With regards ‘Advance Statements’ (the written statement about a person’s wishes and how they would not like to be treated for a mental health condition), Health Boards in Scotland have a duty to promote these. The Mental Welfare Commission has duties to keep a record of the making of an Advance Statement.

Having an advance statement allows people to have their choices and preferences taken into account at a time when they might be so unwell that it is difficult to express these.

A person can make an advance statement if they can understand what they are putting into the statement and the effect it might have on their future treatment. The advance statement only comes into effect if, the person is receiving compulsory treatment under the Mental Health Act. Anyone who makes decisions about your treatment must read the advance statement and consider your wishes. This includes your doctors and care team, the Mental Health Tribunal for Scotland, and designated medical practitioners (DMPs) who provide authorisation for certain treatments specified under the Mental Health Act (2003).

From time to time, the Mental Welfare Commission reviews how well Advance Statements are working. In practice, we see that advance statements work better when they are specific about treatments refused, and when they are reviewed and discussed with clinical teams. It is helpful to indicate the availability of an advance statement on a care plan. It is important that healthcare organisations make information about Advance Statements available and accessible to people with mental health conditions and those important to them. The Commission’s reports on Advance Statements are available on the website https://www.mwcscot.org.uk/