Hb 752: Psychiatric Advance Directive Act

• Jurisdiction: Georgia,United States
• Citation: Vol. 39 No. 1
• Publication year: 2022
• topic: Civil Rights,Health Law

HB 752: Psychiatric Advance Directive Act

Andrew Krawtz

akrawtz1@student.gsu.edu

Adam Xie

zxie1@student.gsu.edu

Matthew Sweat

msweat4@student.gsu.edu

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MENTAL HEALTH

Psychiatric Advance Directive: Amend Title 37 of the Official Code of Georgia Annotated, Relating to Mental Health, so as to Provide for a Psychiatric Advance Directive; Provide for a Competent Adult to Express His or Her Mental Health Care Treatment Preferences and Desires Directly Through Instructions Written in Advance and Indirectly Through Appointing an Agent to Make Mental Health Care Decisions on Behalf of that Person; Provide a Short Title; Provide for Intent; Provide for Definitions; Provide for the Scope, Use, and Authority of a Psychiatric Advance Directive; Provide for the Appointment, Powers, Duties, and Access to Information of a Mental Health Care Agent; Provide for Limitations on Serving as a Mental Health Care Agent and for an Agent's Ability to Withdraw as Agent; Provide for Revocation of a Psychiatric Advance Directive; Provide for the Use and Effectiveness of a Psychiatric Advance Directive; Provide for the Responsibilities and Duties of Physicians and Other Providers Using a Psychiatric Advance Directive; Provide for Civil and Criminal Immunity Under Certain Circumstances; Provide a Statutory Psychiatric Advance Directive Form; Provide for Construction of Such Form; Amend Titles 10, 16,19, 29, 31, 37, and 49 of the Official Code of Georgia Annotated, Relating to Commerce and Trade, Crimes and Offenses, Domestic Relations, Guardian and Ward, Health, Mental Health, and Social Services, Respectively, so as to Provide for Interaction and Relationship with Advance Directives for Health Care; Provide for Application; Provide for Statutory Construction; Authorize a Health Care Facility to Prepare or Offer to Prepare an Advance Directive for Health Care if There Is No Coercion and the Person Consents; Provide for Conforming References and Consistent Terminology; Provide for Related Matters; Repeal Conflicting Laws; and for Other Purposes

Code Sections: O.C.G.A. §§ 10-6B-3 (amended); 16-5-5, -101, -102.1 (amended); 19-8-23 (amended); 29-4-10, -21 (amended); 29-5-21 (amended);

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31-8-55 (amended); 31-9-2 (amended); 31-32-2, -4, -7, -10, -12, -14 (amended); 31-33-2 (amended); 31-36A-3, -6 (amended); 37-1-1, -20 (amended); 37-2-30 (amended); 37-3-20 (amended); 37-3-147, -148 (amended); 37-4-107, -108 (amended); 37-7-147, -148 (amended); 37-11-1, -2, -3, -4, -5, -6, -7, -8, -9, -10, -11, -12, -13, -14, -15, -16 (new); 49-6-72, -82 (amended)

Bill Number: HB 752

Act Number: 836

Georgia Laws: 2022 Ga. Laws 611

Effective Date: July 1, 2022

Summary: The Act amends Georgia laws relating to mental health and provides a statutory psychiatric advance directive form. The Act allows citizens with diagnosed mental health disorders to appoint a mental health agent to make treatment decisions on their behalf. The Act delineates the responsibilities, duties, and immunities of physicians and other providers using a psychiatric advance directive and clarifies the psychiatric advance directive's interaction and relationship with other types of advance directives for health care.

History

First appearing in the 1980s, psychiatric advance directives (PADs) are legal devices that empower incompetent psychiatric patients to be treated in accordance with their treatment preferences during periods of crisis.¹ PADs are linked to the Supreme Court case Cruzan v.

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Director, Missouri Department of Health, which held that an incompetent individual's refusal of life-sustaining treatment must be based on clear and convincing evidence.² This case revealed the necessity for legal devices that reflect the prior cogent intent of the presently incompetent.³ In the aftermath of Cruzan, Congress passed the Patient Self-Determination Act (the PSDA).⁴ PSDA's sponsoring legislators referenced the Cruzan decision and expressed their hopes that the bill would mitigate end-of-life confusion when the patient lost the ability to competently express a treatment preference.⁵

In 1981, the Georgia General Assembly first addressed prior recorded treatment preferences for the incompetent, commonly referred to as advance directives, by creating the Georgia Living Will.⁶ A living will is a legal device that enables competent adults to instruct physicians regarding treatment preferences should the adult become incompetent and require life-sustaining care.⁷ The Georgia General Assembly provided an additional option in 1990 when, in response to the Cruzan decision, it passed the Georgia Durable Power of Attorney for Health Care Act.⁸ This legislation enabled competent adults to appoint someone to make healthcare decisions on their behalf in the event of incompetency or incapacity, effectively creating a broader power of delegation than the limited scope of a living will.⁹ In 2007,

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the Georgia General Assembly replaced the Georgia Living Will and Georgia Durable Power of Attorney for Health Care Act with the Georgia Advance Directive for Health Care Act.¹⁰ This new legislation merged the two older forms into one, creating a single, more comprehensive document for the medical community's use.¹¹ Prior advance directives made under the Georgia Living Will or Georgia Durable Power of Attorney for Health Care Act remained valid after the change in law.¹²

Critically, the Georgia Advance Directive for Health Care Act did not allow the health care agent to make decisions related to "psychosurgery, sterilization, or treatment or involuntary hospitalization for mental or emotional illness, developmental disability, or addictive disease."¹³ This void prompted Georgia legislators to introduce PAD legislation five times between 2007 and 2017, each bill failing in the face of opposition from medical providers who worried about their responsibility in a mental health crisis and the possibility of being bound to potentially inappropriate treatments.¹⁴ In 2020, however, in line with the national trend favoring PADs, both the Georgia State Bar and Representative Sharon Cooper (R-43), Chairperson of the House Health and Human Services Committee, agreed to sponsor House Bill (HB) 752.¹⁵ Aided by the momentum of the passage of House Bill (HB) 1013, the Mental Health Parity Act, and provisions that alleviated liability concerns for medical providers complying or failing to comply in good faith with PADs, the Georgia

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General Assembly unanimously passed HB 752, the Psychiatric Advance Directive Act (PAD Act), on April 1, 2022.¹⁶ Governor Brian Kemp (R) signed the bill on May 9, 2022, making Georgia the forty-seventh state to allow adults to write an advance directive for future mental health treatment and the fiftieth state to allow adults to appoint a healthcare agent to make mental health decisions for them.¹⁷

Bill Tracking of HB 752

Consideration and Passage by the House

Representative Sharon Cooper (R-43rd) sponsored HB 752 in the House with Representative Katie Dempsey (R-13th), Representative Don Hogan (R-179th), Representative Mary Margaret Oliver (D-82nd), Representative Matt Hatchett (R-150th), and Representative Lee Hawkins (R-27th) cosponsoring.¹⁸ Representative Cooper introduced the bill into the House hopper on March 10, 2021.¹⁹ The House first read the bill on March 11, 2021, and conducted a second reading on March 15, 2021, before assigning the bill to the House Committee on Health and Human Services.²⁰

The Committee favorably reported the bill on January 26, 2022.²¹ On February 3, 2022, the House read the bill for the third time and passed the bill by a vote of 165 to 0.²²

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Consideration and Passage by the Senate

Senator John Kennedy (R-18th) sponsored the bill in the Senate.²³ The Senate read the bill for the first time on February 7, 2021, and referred it to the Senate Judiciary Committee that same day.²⁴ The Senate Judiciary Committee then modified the bill by detailing how a PAD can be revoked, how the mental health agent must seek a transfer to a new health care facility if a provider declines to comply with a PAD, and how a health care facility may provide people with PADs.²⁵ The committee favorably reported the bill by substitute on March 25, 2022.²⁶ The Senate then read the bill for a second time on March 28, 2022, and a third time on March 30, 2022.²⁷ Following the third reading, the Senate passed the bill unanimously by a vote of 55 to 0.²⁸

The House unanimously agreed to the Senate's revised bill on April 1, 2022, by a vote of 155 to 0.²⁹ The House then sent the bill to Governor Brian Kemp (R) on April 8, 2022, and he signed it into law as Act 836 on May 9, 2022, with an effective date of July 1, 2022.³⁰

The Act

The Act adds Chapter 11 to Title 37 of the Official Code of Georgia Annotated to provide for a PAD.³¹ Further, the Act amends the following portions of the Official Code of Georgia Annotated: Chapter 6B of Title 10, "relating to applicability of the 'Georgia Power of Attorney Act'"; Chapter 5 of Title 16, "relating to assisted suicide and notification of licensing board regarding violation," "neglect to a

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disabled adult, elder person, or resident," and "trafficking of a disabled adult, elder person, or resident"; Chapter 8 of Title 19, "relating to where records of adoption are kept, examination by parties and attorneys, and use of information by agency and department"; Chapter 4 of Title 29, relating to guardian petitions and appointment and "rights and privileges removed from ward upon appointment of guardian"; Chapter 5 of Title 29, "relating to rights and powers removed from ward upon appointment of conservator"; Chapter 8 of Title 31, "relating to entry and investigative authority, cooperation of government agencies, and communication with residents"; Chapter 9 of Title 31, "relating to persons authorized to consent to surgical or medical treatment"; Chapter 32 of Title 31, "relating to definitions...