Advanced Directives/
Statements & The Tidal
Model
Graham Peace and Tracey
Ellis © 2006
South West Yorkshire NHS
Mental Health Trust,
England
email:
Grahame.Peace@swyt.nhs.uk
Professor Phil Barker
and Poppy Buchanan
Barker have noted that
traditionally, the
persons story is
written by various
professionals - in case
histories, notes,
records, letters etc.
Usually this leads to
various suggestions as
to how people should
live their lives. These
biographies are
usually unauthorised,
and often disputed by
the person whose life is
under the microscope.
The Tidal Model aims
to help the person
reclaim their life
story, which has been
colonised by
professional workers,
and sometimes by family
and friends. This simple
act of reclamation is
the first step on the
voyage of recovery.
Having reclaimed the
story of breakdown and
distress, the person can
begin to map a new
course one small step
at a time.
People with major
problems of living need
the right conditions
(safe haven) under which
to work on their
problems. At times of
great distress, people
need support, which
comes in a variety of
'therapeutic' disguises.
Traditional ideas about
the value of various
therapies - whether in
the form of drugs,
hospitalisation or one
of the countless
'talking cures,-
suggest that someone
else might know what the
distressed person
needs. The Tidal
Model assumes that
the person has the
knowledge of what needs
to be done, within them.
Consequently, people do
not need expert
therapists, they need
supporters. All of us -
whether professional
agents, friends, family
members etc should
remember that the best
that we can become is
genuine supporters.
As such, the task of the
helper is to provide the
conditions under which
people may heal
themselves.
The Tidal Model
recognises that all
helpers -however
respected, qualified or
seemingly expert - know
little of what is
actually happening
within the person's
experience of mental
distress. As a result,
we know little of what
might need to be done,
to address, and resolve
the persons problems.
That vital knowledge
lies, perhaps dormant,
within the
person. Therefore for
the person who has
suffered major problems
of living, developing an
Advanced
Directive/Statement
gives them the
opportunity when well,
to use their
wisdom/knowledge to
guide their care in a
crisis, also allowing
health and social care
professionals to value
the voice, develop
genuine curiosity and
become the apprentice as
stated in the Tidal
Model 10 commitments. It
also helps to reduce the
distress caused by an
admission to hospital
and helps the person to
establish an empowering
therapeutic relationship
with health and social
care professionals from
day one of their
admission.
Within our Tidal Model
Project here in
Calderdale, West
Yorkshire, Advanced
Directives/Statements
were originally
discussed at M Power a
service user led
involvement project,
some five years ago. M
Power and its members
campaigned tirelessly to
raise awareness of the
Advanced
Directives/Statements
and to have them
implemented in
Calderdale. An
opportunity came with
the Tidal Model Project
and we were able to
incorporate Advanced
Directives/Statements in
to the Tidal Model
Awareness Training day;
not only was the Tidal
Model an opportunity to
focus on new ideas about
nursing but it also
completely embraced all
the concepts of Advanced
Directives.
A member of M Power
delivered the training
to Mental Health
workers, Community
Mental Health, Crisis
Resolution Home
Treatment and Assertive
Outreach Teams, in
addition, to Doctors,
Psychiatrists, Service
User Groups, Day Units,
Occupational Therapy
Staff and Student Nurses
attending the University
of Huddersfield as part
of the Tidal Model
Awareness Day. The
Advanced
Directives/Statements
training is delivered
from the perspective of
someone using Mental
Health Services and has
proved very powerful in
promoting their use
within the locality.
Many people who use
services have now
started to develop an
Advanced
Directive/Statement
which we have found
works hand in hand with
the Tidal Model. People
are starting to be seen
as the experts of their
illness and condition,
and are able to plan for
a crisis in advance.
Advanced
Directives/Statements
are an opportunity for
the person to assist
health care
professionals in a
positive way in the
planning and delivery of
their care. They need
not be complex documents
but are an opportunity
for the person to focus
on what has worked in
the past, what hasnt
worked and ultimately
how things can be made
better (The Toolkit), in
addition to any domestic
arrangements that need
to be addressed in their
lives.
Developing an Advanced
Directive/Statement
helps the person to cope
with any worries,
concerns and anxieties
about becoming unwell
and is a very useful
tool in helping the
person focus and reflect
on their situation.
Advanced
Directives/Statements
are very empowering
helping to create a
truly person centred
experience.
It takes time and effort
to complete an Advanced
Directive/Statement and
remember as stated in
the 10 commitments that
Change is Constant. So
ultimately as in life
the Advanced
Directive/Statement will
need to be constantly
updated due to life
events, personal
circumstances etc. We
wish you every success
in getting to work on
your own Advanced
Directives/Statements so
that you too can reap
its benefits, become
more empowered and be
recognised as the expert
on your truly unique
journey towards
recovery.
We detail below specific
information on Advanced
Directives/Statement
with an example of a
template you may wish to
use.
Grahame Peace
Senior Nurse Manager
Tracy Ellis
Service User
Representative.
The Government's
White Paper to the
Mental Health Bill,
2003 promotes the
concept of advance
statements.
Clinical teams will be
expected to help the
person develop advance
agreements.
As already stated an
advance
directive/statement
gives the opportunity
for a person to
indicate, when well, the
way he/she would like
services to respond if
they become unable to
make decisions for
themselves.
What are advance
statements?
Advance statements are a
means, which allow the
person to have a greater
influence on their care
and treatment. They
allow for a person with
mental health conditions
to prepare for a crisis
in advance. They embody
the spirit of the Human
Rights Act. I.e. In
Article 3 -protection
from inhuman and
degrading treatment,
Article 8 - respects for
privacy and private
life, and Article 10 -
freedom of expression.
Advanced statements,
with the exception of
Directives (see below),
are not binding in law
i.e. those health
workers responsible for
the person do not have
to follow an advance
statement. However,
they must demonstrate
that the persons wishes
have been taken into
account and failure to
do this is unlawful.
Types of Advance
Statement
I) a directive.
Advance directives
relate only to
consent to medical
treatment, However, the
Tidal Model sees the
person as an expert
within their own mental
health, this can be
demonstrated within an
Advanced Directive i.e.
the person can explain
and justify why they do
not want to
receive a specific
treatment or type of
care. However, they
cannot direct that they
are given a specific
treatment. An Advance
Directive is binding in
law, although this can
be overridden if the
person is subject to
detention under the
Mental Health Act.
ii) The appointment of
representative.
The person appoints
another person to be
consulted about a
healthcare decision when
he/she is incapable of
deciding for
themselves. The named
person must reflect the
persons wishes.
iii) A statement of
general beliefs:
on various aspects of
life which the person
values. This statement
contains no specific
request or refusal but
attempts to paint a
picture of the person
and how their care can
be more person centred.
v) A combination of any
of the above
i.e. refusal, request,
appointment of a
representative, or who
should be given a key to
their home, have their
pets etc.
The legal doctrine of
necessity
When a person does not
have the capacity to
make decisions for
themselves and does not
have an Advance
Statement, those
responsible for
making decisions on
behalf of that person
must apply a principle
called the legal
doctrine of necessity.
The person who has the
power to make the
decision and whom has
been appointed by the
person (the decision
maker) must consider
what decision the person
would make for himself
or herself, if they had
capacity to do so. The
Tidal Model is all about
empowering the person
before during and after
a crisis. The existence
of an Advance Statement
embodies this process.
In some circumstances
the doctor could become
the decision maker; they
are not bound to follow
the Advance Statement,
however they must show
that they have taken the
Advanced Statement into
account. Failure to do
so would be unlawful. In
deciding not to follow
the Statement the
decision maker must
justify the reason for
this decision. Again,
failure to do so is
unlawful.
The elements of the
legal doctrine of
necessity are:
I) It must be necessary
to make that particular
decision and
consideration must be
given to the
identification of safe,
less draconian,
intrusive or restrictive
alternatives.
ii) The decision must be
a reasonable one.
iii) It must be in the
best interests of the
person.
Advance Statements
are sometimes concerned
with the refusal of life
sustaining procedures in
the event of a terminal
illness. They have
nothing to do with
euthanasia or suicide,
and cannot authorize a
doctor to do anything
which is illegal or
which a person with
capacity could not
request a doctor to do.
Adults with capacity
have the right to accept
or reject medical
treatment. Such a
decision does not either
have to be reasonable or
to be justified to
anyone apart from the
individual who is making
the decision.
Advance Statements
empower the person who
can then potentially
exercise this right, by
defining in advance the
medical procedures to
which they would or
would not consent,
should they have become
incapable of making or
communicating that
decision.
People detained in
hospital under the
Mental Health Act 1983
Advanced statements are
based on the common law,
not legislation.
Accordingly, the terms
of the Mental
Health Act 1983
take precedence and
prevail over Advance
Statements when it comes
to treatment for mental
disorder (as opposed to
treatment for physical
disorder) if the
Act is applied.
Where the person is
subject to compulsory
detention and treatment
under the Mental Health
Act an Advance Statement
is still legally
binding. Although
through the use of the
Mental Health Act, the
Responsible Medical
Officer is not bound to
comply with this.
However, he/she must
demonstrate that they
have taken the Advanced
Statement into
consideration when
deciding upon an
appropriate treatment
plan for the person.
Informal (voluntary)
admissions
If the person is
admitted to hospital on
an informal basis either
with or without capacity
they can only be treated
under common law,
therefore where there is
an Advance Statement
health care workers
must comply with it.
Storage of an Advance
Directive/Statement
The person, and if
appropriate the persons
carer has a copy of the
Advance Statements. In
addition, they are filed
in the persons notes.
An alert sticker is
attached to the notes,
which readily informs
health workers of the
existence of the Advance
Statement. If an
electronic system is in
existence, the Advanced
Directive/Statement can
be placed on the system
with an ALERT for staff
to its existence.
References for Further
Information
1
Making Decisions The
Governments Proposals
for Making Decisions on
Behalf of Mentally
Incapacitated Adults
2
Advance Statements about
Medical Treatment: BMA
1995
3.
The Mental Health Act
1983
4
The Human Rights Act
1999
Shown below is an
example of documentation
that can be used by the
person to produce their
Advanced
Statement/Directive.
This can be done by the
person alone our in
conjunction with a
relative, carer, friend
or health or social care
professional. It is
important to remember
that the Advanced
Directive/Statement is
the persons document.
ADVANCE STATEMENT FOR
MENTAL HEALTH CARE
This is my Advance
Statement in case I have
a mental health crisis
and am unable to
participate in decisions
about my care
My Name:
My Address:
My Date of Birth:
Name of professional
with whom this was
discussed:
________________________and
his/her
signature_______________________and
date_______________
Contact Address:
Contact Tel No:
Name of a family member,
friend or advocate who
knows and understands
about this Advance
Statement. He/she has
given permission to be
contacted and will speak
for me in a
crisis/dispute
Contact Name: _______
Contact Tel No: _
Contact Name: _______
Contact Tel No: _
I confirm that I am over
18 years of age and
understand that this
document remains
effective until I make
it clear my wishes have
changed. (The wishes of
people under 18 years
will be taken into
Consideration but are
not legally binding)
Signed:
Print Name:
Date:
You should have your
Advance Statement signed
by at least one, and
preferably two
witnesses:
Independent Witness:
Signed:
Date:
Name:
Address:
Independent Witness:
Signed:
Date:
Name:
Address:
Copies of this Advance
Statement are held by:
Name:
Address:
..
..
Name:
Address:
..
If applicable please
complete the following:
This agreement has been
discussed with the
following:
1 e.g.
Doctor/GP/Consultant
Signed:
Name:
..
Address:..
..
Date:
2
Signed:
Name:..
Address:..
Date:
PART ONE
ADVANCE STATEMENT FOR
CARE & TREATMENT
I declare that my wishes
are as follows: (please
feel free to continue
overleaf if necessary)
1 My wishes
regarding medication and
treatment are as
follows:
(It is helpful to give
reasons why)
2 When I was
receiving care before,
the following worked
well for me:
3 Things
that have not worked
well in the past are:
PART TWO
ADVANCE STATEMENT
REGARDING MY PERSONAL
AND HOME LIFE
WHEN I AM UNWELL
I declare that my wishes
are as follows:
1 I would like
the following people to
be told immediately that
I have been admitted to
hospital
2
Other people
to contact and tell that
I am not at home, e.g.
Milkman/home help/work
3
I would like
the following people NOT
to be told
4
I would like to be
consulted before people
are told how I am etc
NO
9
Any other information
I would like to make
known
Advance Statements
Guidance Notes on the
Workers Role
If you are approached to
help someone make an
Advance Statement:
·
Nothing substitutes
working in partnership
and making an effective
agreed care plan with
someone.
·
Explain how Advance
Statements work and
explain what might
happen to the form
·
Suggest where the person
might receive
independent advice or
advocacy e.g. MIND,
Mental Health Action
Group or a Solicitor
(there may be a cost for
this although legal aid
is available to those on
low incomes)
·
If the person requires a
lot of help and you are
very involved in their
care it might be useful
to consider whether a
colleague from your team
might be better placed
to give impartial
advice.
When someone is in the
process of making an
Advance Statement
·
You can encourage them
to discuss the contents
with all those involved
in their care
particularly if the
person requires someone
to undertake a task.
·
You can encourage
someone to be very clear
about what it is he/she
would like and to
provide clear reasons as
to why they have reached
this decision.
·
You CANNOT tell
the person what to put
in and what to leave
out. It is their
document. Nor must you
apply pressure in any
way to influence the
persons decision.
·
You can provide
information to help make
informed choices.
·
If you are unsure about
the persons capacity,
you can discuss this and
the possible
implications of this.
If you receive an
Advance Statement
relating to someone for
whom you care:
·
Check with the person
that it is a document
that still reflects the
person wishes.
·
Ensure it is shared with
all those to whom it
relates e.g. the multi
agency care team,
carers, GP, consultant.
·
Any obvious conflict
with a current or
proposed plan of
treatment or care must
be openly discussed with
the person and the team
providing care as soon
as possible.
·
Remember in some cases,
an Advance Statement can
be overruled e.g. when a
person is subject to
certain sections of the
Mental Health Act 1983.
·
You must record that you
have assessed the
persons capacity and
feel it is sufficient
for them to make a
binding statement.
Advanced Statements
Frequently Asked
Questions
Q. Are advanced
statements legally
binding?
A. Yes but there
are important caveats.
Remember, there are many
types of advanced
statement, which you can
make. Importantly, an
advance statement can
take the form of a
directive. A
directive is a command,
which tells doctors/care
workers specific
treatments and other
care, which you do
not want to receive,
in exactly the same way
as you might refuse to
consent to a treatment.
This is legally binding
and can only be
overridden if the person
in receipt of care is
detained under the
Mental Health Act,
1983. Even in these
circumstances, the
doctor must demonstrate
that he/she has
considered the directive
and is prepared to
defend his/her reason
for not complying with
it. You cannot direct
that you do not want
basic care.
A statement may also
indicate the type of
care a person would wish
to receive in the event
of him/her losing
capacity. The persons
providing such care in
this instance do not
have to comply with such
requests, but again they
do have to demonstrate
why they feel such care
is not in your best
interests at the time.
Q. Can an advance
statement be overruled?
A. Yes. As
mentioned above there
are a limited number of
ways in which an advance
statement can be
overruled.
1.
If the advance statement
directs that care
workers do, or do not do
something which a person
with capacity could not
request. For example, a
person cannot direct a
doctor to do something
that is illegal.
2.
Where there is evidence
to suggest that when the
person made the advance
statement, he/she did
not have mental
capacity.
3.
Where a person is
detained under treatment
sections of the Mental
Health Act, 1983 and the
responsible medical
officer feels that a
particular treatment is
in that persons
interest, even where
there is a directive
stating that he/she does
not want that specific
treatment. However, the
doctor must demonstrate
that he took the
directive into
consideration.
4.
Where a person has made
a non-directive
statement which care
workers feel is not in
that persons best
interest.
Q. Who
should make an advanced
statement?
A. Anyone who has
capacity can make an
advanced statement.
Advanced statements are
merely a means of making
known to care workers
the sort of treatment
and care you would like
in the event of a future
physical or mental
condition incapacitating
you. Advance statements
are particularly useful
for people who suffer
from serious mental
disorders where there is
a chance of relapse.
Advance statements
provide the opportunity
to review a period of
ill health and record
the aspects of care,
which worked well, and
those, which did not.
Care in this respect can
mean not only medical
and nursing care, but
also wider social
issues, for example, who
should look after a
pet. From this it is
clear that a good time
to make an advanced
statement is at the end
of a period of in
service user care, as
part of the discharge
planning process.
Q. What is
capacity?
A. Capacity - the
ability to understand a
proposed action. Taking
into account, the broad
nature of the proposed
action, its outcome if
carried out and not
carried out, weigh the
information in balance
and arrive at a
decision.
Q. I have made an
advance statement, where
should I keep it?
A. Obviously,
advanced statements are
only of any use if those
who are providing care
for you know of their
existence. Of course it
is up to the individual
concerned to decide with
whom the statements are
shared. If your advance
statements relate mainly
to the possibility of
mental health problems
and you have received
specialist treatment in
the past, then it would
be wise for the hospital
where you normally
receive your care to
have a copy. A copy of
your advanced statement
can then be filed in
your case notes, and the
file marked to alert
doctors, nurses and
others that you have
made an advance
statement.
You do not have to
provide the hospital
with a copy of your
advance statement. If
you choose not to, it is
important that someone
else knows of its
existence e.g. your
husband/wife/friend, and
is able to provide the
doctors and other health
care professionals with
your statement if you
become incapacitated.
Q. My advance
statements have been
placed in my case notes,
but I want to change
some aspects of them (or
withdraw them
altogether) how do I do
this?
A. If you want to
change your statement,
you must complete
another one entirely.
Ensure that the old one
is destroyed clearly
the existence of two
contradictory advanced
statements must be
avoided. Send a copy of
the new statement to the
medical records
department of the
hospital where you
normally receive
treatment. Similarly,
should you no longer
wish to have an advanced
statement, write to the
medical records
department giving your
name, date of birth and
address, asking for your
statement to be
destroyed.
Q. Do doctors or
other health/social
services staff have to
be involved if I wish to
make an advanced
directive?
A. No. You
should have someone
witness your advanced
statement who can
validate that at the
time of writing it you
had the capacity to make
the statement, but this
person can be anyone who
knows you. Health care
staff do not have to
agree with your advance
statement.
