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Psychiatric Advance Directives - What You Need to Know

  • Date : 2014-03-05 : Rev. 2017-06-28
  • Thomas C. Weiss : Disabled World
  • Synopsis : Information and facts regarding psychiatric advance directive law for people with psychiatric illness or any other form of medical condition.

Main Document

People who are concerned that they might become subject to involuntary psychiatric treatment, or commitment at a future time, may prepare a legal document in advance to express their choices concerning treatment. The document is referred to as a, 'psychiatric advance directive.' Under federal law, advance directives must be offered in any facility that receives Medicaid or Medicare reimbursements, including any psychiatric hospital.

(PAD), also known as a mental health advance directive, is a written document that describes what a person wants to happen if at some time in the future they are judged to be suffering from a mental disorder in such a way that they are deemed unable to decide for themselves or to communicate effectively. It can inform others about what treatment they want or don't want from psychiatrists or other mental health professionals, and it can identify a person to whom they have given the authority to make decisions on their behalf. A mental health advance directive is one kind of Advance health care directive.

The law applies equally to people with a form of psychiatric illness and those with any other form of medical condition. States also have laws governing advance directives and have many times produced their own suggested forms for the document. Advance directives may specify the treatment a person desires to receive if they are found incapacitated, such as:

  • Financial arrangements
  • Medication preferences
  • Arrangements for children or pets
  • Treatments they do not wish to have
  • Who is permitted to visit them in the hospital
  • Ways in which treatments may be administered

The things that are included in a psychiatric advance directive are entirely up to the person who creates it. There are basically two types of advance directives; 'Instruction directives,' such as living wills, which provide specific information concerning treatment and other wishes of people who draft them if they lose capacity to make decisions on their own are one type. The other basic type of advance directive are, 'proxy directives,' which assign, 'health proxies,' or, 'health care powers of attorney,' to people entrusted to act as substitute decision makers if the person loses capacity to make their own decisions. Frequently, advance directives combine both of these types of directives, mixing specific instructions concerning health care preferences with identification of people assigned as health proxies.

Traditionally, advance directives have been used mainly for end of life decisions. For example, specifying the wishes of people to be withdrawn from life support when there is no longer any reasonable hope of survival is one use of an advance directive. In recent years, advance directives have been recognized for their potential in empowering people who experience a form of mental illness and their ability to communicate treatment preferences in advance of periods of incapacity.

Those who support psychiatric advance directives perceive them as being potentially helpful for at least four reasons. They can empower consumers to assume control over their own treatment decisions. They can be very useful in enhancing communications concerning treatment preferences between consumers, family members, and those who provide treatment. Advance directives can facilitate appropriate treatment interventions that are timely before situations deteriorate to emergency status. They may also lead to reductions in adversarial court proceedings over involuntary psychiatric treatment.

Laws authorizing certain forms of living wills or health care directives have been enacted in every state and the District of Columbia. A number of these laws do not specifically reference psychiatric decision making, except that some of them expressly exclude decisions concerning certain types of psychiatric treatment such as Electro-Convulsive Therapy (ECT), inpatient treatment, or psychosurgery.

Chart showing states with laws concerning psychiatric advance directivesAbout This Image: Chart showing states with laws concerning psychiatric advance directives Laws specifically authorizing psychiatric advance directives have been enacted in at least a dozen states. The first law authorizing psychiatric advance directives was enacted in the state of Minnesota in 1991. Hawaii, Alaska, Illinois, Idaho, North Carolina, Maine, Oregon, Oklahoma, Texas, South Dakota and Utah have done the same since. All of these laws establish the right of people with forms of mental illnesses to write directives and indicate their wishes concerning their acceptance or refusal of psychiatric treatment. Some of the laws apply only to written declarations about inpatient psychiatric treatment, ECT, and psychotropic medications. Other laws apply more generally to every form of psychiatric treatment.

Even though advance directives are very promising as tools for empowering people to more actively participate in their treatment, there are concerns about the directives too. One of the more notable issues has to do with determinations of legal capacity or competence. Questions about capacity arise at two different points in the process. A person must be competent at the time they create an advance directive for the documents to be valid. An advance directive may be used for health care or psychiatric decisions only when the person is not competent to make decisions for themselves.

The majority of state statutes presume that a person is competent at the time they draft an advance directive. The laws usually require the directive to be signed by two adult witnesses who attest to the person's capacity at the time the directive is created. More difficult questions arise over determining capacity at the time advance directives are used for health care decisions. In some states, a judge must make determinations concerning capacity. In other states, such as in Oregon, the law specifies that capacity determinations can be made either by two doctors or a judge. The last approach would seem to be preferred. The person presumably has some say in choosing which option to exercise in states that authorize both forms of determining capacity.

Another controversial issue involves the possible use of psychiatric advance directives to refuse all treatment. Thomas Szasz, a leading anti-psychiatry proponent, was one of the first people to advocate for using psychiatric living wills as a means for refusing psychiatric treatment. All of the state laws authorizing psychiatric advance directives, with the exception of Maine, specify that people can use the directives to consent or refuse psychiatric treatment. Maine's law authorizes the use of advance directives specifically to indicate treatment preferences and is silent on whether the directives may be used in order to refuse treatment.

Due to the fact that advance directives for mental health decision making are fairly new, courts have not ruled conclusively on whether and under what circumstances directives refusing all psychiatric treatment may be overridden. In view of general legal precedents on treatment refusal; however, it is likely that courts will find that advance directives refusing all treatment may be overridden under certain circumstances - namely when a person is determined to be a threat to themselves or others.

Yet another unresolved question concerns revocation of advance directives. A person can revoke an advance directive when they are competent. A harder question arises when a person attempts to revoke their advance directive while actively symptomatic and in need of treatment. For example; a person might write an advance directive specifying their preferred medications and assigning health care power of attorney to a member of their family to act on their behalf if they lose capacity to make their own treatment decisions. Subsequently, during a relapse, they might seek to revoke their advance directive and refuse all forms of treatment. A lengthy court proceeding might ensue to determine the person's capacity and whether their treatment refusal should be overridden, negating an important objective of advance directives - to avoid court proceedings of this nature.

One suggestion is that insertion of a so-called, 'Ulysses clause,' in an advanced directive might effectively avoid this dilemma. The name originated from the mythical Greek hero Ulysses, who knew that the lure of the beautiful Sirens was so powerful that he would be compelled to sail his ships towards the rocks they were sitting on, thereby destroying it. To prevent this, he ordered his subordinates to bind him to the mast of the ship and keep the ship sailing strait no matter how strongly he argued to the contrary. A Ulysses clause in an advanced directive instructs treatment providers about specific treatment preferences and explains that any statements made refusing treatment during periods of the person's incapacity should be ignored.

The use of advance directives for psychiatric decision making is still very new. Plainly, there are more unresolved questions than answers concerning them. While advance directives have a number of proponents, there are also some who argue that they will be used as mechanisms for avoiding psychiatric treatment completely. Ongoing research projects and pending court decisions should provide more comprehensive information as time passes. In the meantime, advance directives should be considered as a way to empower people to take a more active role in their own treatment and as a way to avoid damaging and divisive conflicts over medication issues and treatment.



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