Psychiatric advance directives (PADs) allow competent persons to document advance instructions for their future mental health treatment or designate a health care agent to make decisions for them in the event of an incapacitating psychiatric crisis. PADs may enhance patient self-determination, improve therapeutic alliance, and prevent psychiatric crises; however, there are a number of legal, ethical, and logistical barriers preventing the effective implementation of PAD laws. Research shows that most people with mental illness would want a PAD if they received help and that a manualized facilitation increased completion and understanding of PADs as well as improved working alliance and perceived met treatment need. Studies also show that people with mental illness incorporate clinically useful information in PADs but that much more work is needed to bolster the use of PADs in actual clinical practice.
PADs are relatively new legal instruments. Prior to the 1990s, most laws involving people with mental illness, such as involuntary civil commitment, on balance have placed limits on patient autonomy in the interest of public safety or the patient’s “best medical interests.” In the past 15 years, however, PADs have been promulgated with the goal of promoting greater self-determination among people with mental illness. If followed by treatment providers, PADs may help patients gain better access to the types of treatment that work best for them—especially during times when they are most in need of care but least able to speak for themselves. Furthermore, the very exercise of preparing a PAD, and discussing it with a mental health professional, may enhance therapeutic alliance and improve treatment engagement.
In theory, PADs provide a transportable document— increasingly accessible through electronic directories— to convey information about a patient’s treatment history, including medical disorders, emergency contact information, and medication side effects. Clinicians often have limited background clinical information about psychiatric patients who present in crisis centers or hospital emergency departments. Nonetheless, these are the typical settings in which clinicians are called on to make critical patient management and treatment decisions, using whatever limited data may be available. With PADs, clinicians could gain immediate access to relevant information about individual cases and thus improve the quality of clinical decision making—appropriately managing risk to patients’ and others’ safety while also enhancing patients’ long-term autonomy.
The use of legal coercion in mental health services remains highly controversial, as it exposes a fault line between two important societal values: respecting the rights of individuals to choose their own health care and accepting social responsibility to care for those who are unable to care for themselves. Although involuntary treatment may well be effective in improving treatment adherence in the short run, it comes at the price of reducing personal liberty. Insofar as PADs may provide a means to promote both autonomy and beneficial treatment for persons with severe mental illness, some scholars believe that PADs may help resolve this fundamental dilemma in mental health law and policy by reducing the need for involuntary treatment.
As of 2006, 25 states had passed specific PAD statutory provisions. However, all states provide some type of legal instrument—typically a health care power of attorney—that patients can use to plan for their psychiatric as well as medical treatment during future periods of decisional incapacity. States’ advance directive laws were given added force by the federal Patient Self-Determination Act (PSDA) of 1991. The PSDA requires that all hospitals receiving federal funds inform patients of their rights, including the right to prepare advance directives as authorized under state law and to institute policies for implementing advance directives. In short, federal law helps ensure that people with mental illness, in whatever state they live, can use medical advance directives to specify mental health treatment preferences or assign proxy decision makers for mental health decisions.
Ethical and Legal Questions
PADs pose certain ethical and legal dilemmas. For example, how should a clinician react if a severely mentally ill patient presents a PAD refusing treatment? Although doctors typically cannot override end-of-life advance directives, most of the new PAD statutes allow doctors to trump mental health treatment preferences that are inconsistent with appropriate psychiatric care as defined by community standards of practice. However, in Hargrave v. Vermont (2003), the U.S. Court of Appeals for the 2nd Circuit recently upheld a lower court’s decision striking down a state law that allowed mental health professionals to override a hospitalized person’s advance refusal of psy-chotropic medications through a general health care proxy. The court ruled that the Vermont override law—which applied only to persons with psychiatric disorders in the state hospital—was discriminatory on the basis of disability and thus violated the Americans with Disabilities Act, Title 3.
Some commentators worry that the Hargrave decision could have perverse consequences. Assuming that some severely mentally ill individuals prefer to remain unmedicated and assuming that they are able to document such preferences in advance while fully competent, the question arises, What are the ethical and fiscal implications of a state policy that, in effect, sanctions indefinite involuntary confinement of such persons when they become incapacitated but without providing them effective treatment? Should taxpayers be expected to shoulder the burden of paying for substantially longer hospital stays for psychiatric patients with PADs refusing medications? Another unintended consequence of Hargrave is that psychiatrists, in reaction to the specter of treatment-refusal PADs and potential legal liability in such cases, may be reluctant to support PADs or to encourage patients to complete them. Although understandable, this reaction would beg the question of whether any substantial number of patients actually use PADs to document advance refusals of all medication; new research suggests that this may be a moot concern.
The presumption of competence to execute PADs is another controversial legal feature of these statutes. On the one hand, some mental health professionals would argue that a clinical assessment of competence should be required for patients who want to complete PADs, in view of the fluctuating decisional capacity that often characterizes severe mental illness. On the other hand, some scholars have noted that mandatory screening for competence—placing the burden on people with mental illness to prove that they are competent before completing a legal document—would amount to discrimination against adults with disabilities.
Currently, only two jurisdictions, Indiana and Louisiana, require that persons with mental illness be deemed competent before they write a valid PAD. However, in states where this is not required, there could still be practical reasons for patients to voluntarily request a clinical assessment of their competence prior to completing a PAD. Even people who do not have mental illnesses may elect to have a competence assessment at the time they prepare a legal document such as a will—precisely to avoid the problem of later challenges to testamentary capacity and thus ensure that their wishes are followed. With respect to implementing PADs, the practical question is, How can people with severe mental illness best ensure that future clinicians will abide by their preferences as documented in advance, without unduly questioning their competence to make those advance decisions and thus calling into doubt the PAD’s legal validity?
Current Research and Trends
While a number of legal and ethical questions about PADs remain unanswered, a body of empirical research on PADs has begun to emerge. Studies indicate that although approximately 70% of patients with mental illness would want a PAD if offered assistance in completing one, less than 10% have actually completed a PAD. Why is there a gap between interest in and completion of PADs? First, people with mental illness report difficulty in under-standing advance directives, skepticism about their benefit, and lack of contact with a trusted individual who could serve as proxy decision maker. The sheer complexity of filling out these legal forms, obtaining witnesses, having the documents notarized, and filing the documents in a medical record or registry may pose a formidable barrier.
Recent surveys of mental health professionals’ attitudes about PADs suggest that they are generally supportive of these legal instruments but have significant concerns about some features of PADs and the feasibility of implementing them in usual care settings. Clinicians are concerned, for example, about following PADs that may contain treatment refusals or medically inappropriate instructions. They also worry about lack of access to PAD documents in a crisis, lack of staff training on PADs, lack of communication between staff across different components of mental health systems, and lack of time to review the advance directive documents.
For these reasons, among others, PADs have yet to gain widespread use in systems of care for people with severe mental illness. The research indicates, however, that as more people learn about these laws, PADs will be used more frequently. For instance, whereas most of the psychiatrists, social workers, and psychologists surveyed believed that PADs would help people with severe mental illnesses, clinicians with more legal knowledge about PADs were more likely to endorse PADs as a beneficial part of patients’ treatment planning. Additionally, research indicates that PADs typically contain clinically useful information and almost never include medically inappropriate information. Swanson and colleagues analyzed the content of more than 100 PAD documents and found that psychiatrists rated the advance directives to be highly consistent with standards of community practice. Most participants used the advance directive to refuse some medications but provided clear reasons for their choices; none used an advance directive to refuse all treatment. Instead, most people who completed PADs used these documents to request that inpatient staff treat them with respect and talk with them about their treatment. More than one third listed specific medical conditions and/or medication side effects that would directly lead to more informed clinical decision making by doctors in emergency departments and inpatient settings.
Finally, new evidence is emerging from a large-scale randomized clinical trial of N = 469 individuals with mental illness, suggesting that a manualized PAD facilitation helps overcome patient barriers to completing PADs and may improve working alliance and treatment engagement among people with severe mental illness. The authors found that 61% of partici-pants in the facilitated session completed an advance directive or authorized a proxy decision maker, compared with only 3% of control group participants. At 1-month follow-up, participants in the facilitated session had a greater working alliance with their clinicians and were more likely than those in the control group to report receiving the mental health services they believed they needed.
In another analysis from this clinical trial, the authors systematically examined competence to complete PADs, using a newly developed instrument that evaluates patients’ understanding, appreciation, and reasoning ability applied to PADs and the specific treatment decisions contained in PADs. The authors found that the majority of participants at baseline scored above 50% of the highest possible point total on this instrument. That people with mental illness are generally able to understand, appreciate, and reason adequately with respect to PADs is consistent with prior research reaching the same conclusion.
The study also showed that the manualized PAD facilitation significantly improved patients’ competence to complete PADs, as well as their capacity to make reasonable treatment decisions within the framework of a PAD. The facilitation intervention increased PAD competence most dramatically for patients with low cognitive functioning and limited initial understanding of PADs.
In sum, PADs were designed as legal instruments for persons with mental illness to retain some control over their treatment during periods of decisional incapacity. In practice, PADs could yield other indirect benefits, such as improving communication between providers, patients, and family caregivers; enhancing therapeutic alliance and treatment engagement; and mobilizing clinical resources. Jointly, these influences could work together to help avert psychiatric crises, as well as to improve the management of such crises when they do occur, without resorting to involuntary commitment.
However, it may be necessary to provide resources to assist persons with mental disorders in completing PADs, configure information systems to make PADs accessible, and educate clinicians about the potential benefits and drawbacks of PADs and their legal obligations regarding PAD compliance. The National Resource Center on Psychiatric Advanced Directives disseminates state-by-state information on PADs and educational material to patients, family members, policymakers, and clinicians through its Web site. Such steps could be critical to ensuring that these legal instruments are implemented effectively in clinical practice and that people with mental disorders are afforded the opportunity to plan and participate in their own mental health treatment.
- Appelbaum, P. S. (2004). Psychiatric advance directives and the treatment of committed patients. Psychiatric Services, 55(7), 751-752.
- Elbogen, E. B., Swanson, J. W., Appelbaum, P., Swartz, M. S., Ferron, J., & Van Dorn, R. A. (2007). Competence to complete psychiatric advance directives: Effects of facilitated decision making. Law and Human Behavior, 31, 275-289.
- Hargrave v. Vermont, 340 F.3d 27 (2nd Cir. 2003).
- Srebnik, D., & La Fond, J. Q. (1999). Advance directives for mental health treatment. Psychiatric Services, 50(7), 919-925.
- Swanson, J. W., McCrary, S. V., Swartz, M. S., Elbogen, E. B., & Van Dorn, R. (2006). Trumping psychiatric advance directives: Ethical and legal considerations. Journal of the American Academy of Psychiatry and the Law, 34(3), 385-394.
- Swanson, J. W., Swartz, M. S., Elbogen, E. B., Van Dorn, R. A., Ferron, J., Wagner, H., et al. (2006). Facilitated psychiatric advance directives: A randomized trial of an intervention to foster advance treatment planning among persons with severe mental illness. American Journal of Psychiatry, 763(11), 1943-1951.
Return to the overview of Mental Health Law in Forensic Psychology.