Core Legal Concept
The Mental Health Act (
Republic Act 11036) recognizes that a service user may lose the capacity to make treatment decisions during a future episode of illness. To protect autonomy during such periods, the law allows the person to prepare an
advance directive while still capable. This document records the person’s preferences for psychiatric treatment, including medications, hospitalization, and other interventions, so that clinicians and family members can honor those wishes later.
For an advance directive to be legally valid under RA 11036, it must be signed by the service user, dated, and notarized. The notarization requirement is the key distinguishing feature. It serves as formal proof that the person personally appeared before the notary, acknowledged the document, and was acting voluntarily at the time of signing. This helps guard against later disputes about whether the directive was forged, signed under pressure, or made when the person already lacked capacity.
Why the Other Options Are Incorrect
| Option | Why It Is Not the Validity Requirement |
|---|
| 1. Co-signed by attending psychiatrist | RA 11036 does not require the psychiatrist to co-sign or approve the advance directive. Requiring physician approval would undermine the service user’s autonomy, which is a central principle of the law. The psychiatrist’s role is to respect and implement the directive when it becomes operative, not to authorize its creation. |
| 2. Signed by the person and two witnesses | Witnesses may be used in other legal documents, such as a last will and testament or certain consent forms, but RA 11036 specifies notarization rather than a witness requirement for an advance directive. A notary public performs a different function from a witness: the notary verifies identity and voluntariness, whereas witnesses merely observe the signing. |
| 4. Approved by the internal review board | An internal review board typically reviews research protocols, facility policies, or ethical concerns involving patient care. It does not have a role in validating a personal treatment directive. Requiring board approval would create an unnecessary institutional barrier to exercising the right to self-determination. |
Clinical and Nursing Implications
In mental health settings, nurses often encounter advance directives during admission or when a service user is unable to participate meaningfully in treatment planning. The nurse should verify that the document on file is the notarized original or a certified true copy. If a service user presents an unsigned, undated, or unnotarized document, it does not meet the statutory requirement and cannot be treated as a binding advance directive under RA 11036.
The directive takes effect only when the service user is determined to lack the capacity to make a specific treatment decision at that time. While the person remains capable, they retain the right to consent to or refuse treatment directly, even if their current choice differs from what the directive states. Capacity is assessed on a decision-by-decision basis, not as a single global determination.
Revocation and Amendment
RA 11036 also provides that the service user may revoke the advance directive.
A valid revocation may be made through a new advance directive or through a separate notarized revocation. This mirrors the formality required for creation: because the original document was notarized, the law requires an equally formal act to cancel it. A verbal statement to a nurse or an informal note does not, by itself, revoke a notarized directive, although such statements should be documented and brought to the attention of the treatment team and legal officer.
Key point! The validity requirement is
signed, dated, and notarized — not merely witnessed, not co-signed by a physician, and not approved by any committee. The notarization requirement is what distinguishes an advance directive under RA 11036 from an informal statement of preferences.
Watch out! Do not confuse the advance directive under RA 11036 with a general medical advance directive or living will used in other healthcare contexts. While the underlying principle of prospective autonomy is similar, the specific formal requirements under the Mental Health Act — particularly notarization — must be met for psychiatric treatment decisions.