Summary

Psychiatric advance directives (PADS) are under-utilized, misunderstood, and under-enforced, and as a relatively modern instrument, difficult to define. The definition of a PAD is multi-faceted, as both the legal and medical communities have shaped its development. This discussion is meant to summarize the current state of the validity, enforcement, and legal basis for PADs. Secondly, this paper serves to describe the manner in which a mentally ill patient might significantly lessen their traditional loss of autonomy during periods of incompetency by the successful implementation and enforcement of a PAD. Lastly, this paper also discusses how social stigma towards the mentally ill often circumscribes the validity of PADs in matters of enforcement and revocation.

An Introduction to Psychiatric Advance Directives

A psychiatric advance directive (PAD) is a relatively new form of advance directive utilized by individuals with a psychiatric disability.[i] More precisely, a PAD is a legal tool that allows an individual to stipulate what type of treatment, while competent, he or she prefers in the event an acute psychiatric episode renders the individual incompetent to assert their wishes.[ii] A PAD, therefore, provides the legal means for a mentally ill, though competent, individual to request or refuse treatment prior to an acute psychotic episode.[iii] While current law on PADs tends to preserve a patients' self-determination during times the person is particularly vulnerable to a loss of autonomy[iv], and helps ensure that the patient's preferences are known, thus avoiding unwanted treatment, state statutes and case law also reflect a desire to limit the validity of a PAD through exceptions to enforcement and options to revoke.[v] Additionally, despite the potential of PADs, studies show that a there is a low document completion rate[vi], that health care staff are reluctant to enforce the provisions, and there is no guarantee that a court will uphold the validity and contents of a PAD.

PADs are a creative and viable option for those suffering from mental illness. Regardless of the fact that medication and therapy, along with various other treatment options, exist to help manage the effects of mental illness, nothing exists that will cure a mental disorder or completely alleviate the effects of the disorder. Moreover, the medication and medical procedures available are invasive and carry serious side effects. Since the mentally ill are traditionally considered dangerous, incapable, and incompetent per se, and it is unlikely such stereotypes and stigma will fully disappear, it is necessary to provide these individuals with a legal means to preserve their fundamental rights while rendered legally incompetent by their disorder.

Between 1991 and 2006, twenty-seven states enacted statutes addressing PADs.[vii]Today, twenty-five states have specific statutes to address PADs[viii] and every state acknowledges the use of PADs. Of those twenty-five states with specific statutes to address PADs, the variation in format, requirements, and implementation is remarkable. For example, as to format, some states provide a template to be followed, while others provide a standardized form with no requirement that the patient use the specific form, while still others provide no format whatsoever. However, there are also consistencies, such as that all states require the patient to formally sign or affix their mark to the document along with at least one witness. Consequently, the variation naturally creates a system where some states have more stringent requirements including, but not limited to, requiring that the document contain two witness signatures, or that a notary verifies the document. The remaining twenty-five states address PADs, but only by inference through the state's pre-existing advance directive, durable power of attorney or living will statutes. Among those remaining states the variation is even more erratic since no formal requirements specific to PADs exist.

A Brief History on the Development of Psychiatric Advance Directives

The concept of an advance directive is not necessarily a new concept, nor is a PAD, but nonetheless, PADs have remained an under-utilized and unenforced legal tool for the mentally ill. PADs are rooted in the same legal principles as a medical advance directive (MAD), but even though the ultimate goal of patient autonomy is the same, the context through which that goal is realized is very different. Where an MAD seeks to prevent a patient from being kept alive through artificial or exceptional means, and allow the patient to die with dignity, a PAD is meant to prevent a loss of autonomy that occurs when a patient is forcibly medicated, restrained, or operated on. The ultimate differentiation between the two types of advanced directives is that a MAD typically, though not always, becomes effective when the patient is rendered unconscious without hope of recovery, and a PAD becomes effective while the patient is conscious but considered incompetent.

Despite the differences, the origin of the advance directive is the same and most prominently lies with the Nancy Cruzan case. Chief Justice Rehnquist[ix] posed in the opinion that there is a logical correlation between the doctrine of informed consent and the idea that a patient has the right to not consent, and consequently refuse, medical treatment.[x] This point is supported by Jacobson v. Massachusetts[xi] that there is a constitutional liberty interest to refuse medical treatment.[xii] Additionally, this right found support in other areas of the Constitution when it was expanded in Harper v. Virginia[xiii] that there is a constitutional due process right to refuse medical treatment, namely to be free from the involuntary administration of antipsychotic drugs. Even more crucial, the Supreme Court has determined that the mentally ill do have rights[xiv] and among those rights are the right to refuse treatment[xv] and the right to refuse medication.[xvi]

The impact of the Cruzan v. Director Missouri Department of Health[xvii] on the need, purpose, and rights behind advance directives is exceptional. The court determined that a state could not refuse to withdraw life support from a person in a vegetative state absent clear and convincing evidence that the patient would have wanted such a course of action and that patient autonomy ultimately prevails over medical ethics.[xviii] Hence, even incompetent patients have the right to control their own treatment.[xix] By implication, a person also has the right to engage in advance planning for incapacity. However, this right is always subject to a balancing test  between the individual's interest in their fundamental rights and the state's interest in the valid exercise of its parens patriae power under the U.S. Constitution. Under this test, advance directive is presumed valid unless it is shown that there has been a substantial departure from acceptable professional judgment, practice, or standards.[xx]

Common Characteristics of PADs

Even though all states address the use of PADs, no consistency exists as to what should or should not be required. However, there is a consensus that a PAD may take three forms: instruction by proxy, instruction by declaration, and instruction by combination.[xxi] Instruction by proxy is a style of PAD where the person executing the PAD appoints another individual to make decisions concerning medical treatment on their behalf during a crisis. Depending on the state, the appointed proxy or proxies may make decisions unaided by previously outlined instructions for care.[xxii] Although only one is typical, two proxies may be designated at the discretion of the patient. Two proxies serve a benefit when the patient is concerned that their wishes will not be followed, as both proxies would need to consent to the treatment.[xxiii] Regardless, without previously outlined decisions on care by the patient there is no guarantee that the patient's wishes will be followed as it is unpredictable what the proxy will decide for that patient. It is especially unpredictable in the event of an acute and unforeseen crisis that the patient and proxy may have never discussed.[xxiv]

In turn, instruction by documentation formats the patient's specific preferences as they relate to the patient's medical care.[xxv] The patient uses the document to memorialize what types of treatment the patient wants to receive or refuses to receive. Patients may specify treatment predilection including pharmacological treatment preferences, route of administration preferences, medical care provider preferences, electroconvulsive therapy, both radical and routine surgery, hospitalization, and experimental drug and medical procedure trials.[xxvi] By leaving instructions the patient lessens the risk that a proxy will not follow their wishes during a period of incapacity. By the same token, the patient does run the risk of leaving instructions that are too inflexible or not exhaustive enough. It is too hard to predict the nature and outcome of every medical crisis and it is also too difficult to outline every possible treatment option during different types of episodes. This risk of unpredictability allows a doctor or other health care provider to use the inflexibility or vagueness of the document to consider the form void for vagueness. The ability to classify a PAD as too vague will release the health care provider from following the wishes outlined by the patient.

Instruction by combination is a PAD form that stipulates both a proxy and also provides instructional guidelines for that proxy. This is the most binding and most sound style of PAD because it provides both instruction by the patient that a proxy must follow, and additionally appoints a proxy who can make decisions on behalf of the patient in the event that the instructions do not provide an answer for the particular type of problem. In the event that the proxy must still make a decision for the patient's treatment without specific instruction by the patient, the proxy must make a treatment decision that appears consistent with the patient's treatment preferences as would be evident in the instructional guidelines.[xxvii] An additional accommodating aspect of this style is that a proxy could help to ensure that medical care staff follows the PAD.

Competency Requirements

In order to develop a PAD the individual must first be deemed competent[xxviii] to articulate his or her wishes at the time the PAD is executed.[xxix] Competency is a central issue in the execution of any advance directive[xxx], but it is of particular importance when executing a PAD. The emphasis on competency at the creation of a PAD is directly related to the reason for the creation that the individual suffers from mental illness. Competency will revolve around two axes, first, capacity to create the document itself, and second, competency to make the decisions recorded in the document.[xxxi] Acute episodes of mental illness are often characterized by a loss of competent decision-making ability.[xxxii] Another consideration for requiring competency at execution is that the process of preparing a PAD will facilitate a meaningful dialogue between health care providers and the patient. Such a dialogue would help the patient understand the risks and benefits of certain treatment as it impacts their unique case.[xxxiii] The intended consequence is improved case management during both routine and acute care.[xxxiv] Promotion of a dialogue between patient and health care provider should therefore produce a greater sense of patient self-determination, a central component to psychosocial rehabilitation and recovery.[xxxv]

It is possible to determine competency using the Decisional Competence Assessment Tool for Psychiatric Advance Directives[xxxvi] (DCAT-PAD). The DCAT-PAD addresses the individual's ability to understand what a PAD is and how it could impact their person during an acute episode.[xxxvii] Additionally, the DCAT-PAD ascertains whether or not a patient desires to execute a PAD.[xxxviii] A recent study suggests that there is a strong connection between the competency of a patient to understand and execute a PAD and the neuropsychological state of the individual, which would suggest that mentally ill patients have the capacity to form and effect a PAD.[xxxix]

Legal tests for competency[xl] vary by jurisdiction and subject matter. Simply the inability to communicate a decision may be sufficient to meet threshold requirements to determine the competency of an individual.[xli] Such a minimalist approach provides the court with wide discretion to determine a patient competent or incompetent to make medical decisions for him- or herself. That broad discretion could be exercised in a way that is detrimental to mentally ill persons since the application has the potential to be indiscriminate. A more complex analysis of competency[xlii] also exists. Complex systems for determining competency may range from requirements that an individual have a logical thought process[xliii] to the person's ability to understand each option available and consequently the benefits and disadvantages of each option.[xliv]

Competency will most often be at issue when the patient's wish is to refuse treatment[xlv], namely because refusal of treatment is considered impractical by modern medical standards, which is further compounded by the societal-held stigma that mentally ill patients make irrational decisions. Clinicians typically believe that although preservation of the patient's autonomy and fundamental rights is a concern, treating the disorder should be the primary concern. Treating the disorder often means medicating, so refusal of that type of treatment is often considered an impediment to be removed. One study showed that clinicians view the execution of a PAD as therapeutic, but only when backed by conventional reasoning.[xlvi] It was also shown that the clinician to disregard the PAD often uses an instructional PAD refusing medication and backed by delusional reasoning.[xlvii] Likely the result of paternalism toward the mentally ill, unconventional reasoning is interpreted as incompetency, thus invalidating the PAD as executed while incompetent.[xlviii]

The Issue of Enforcement

Despite the promise of PADs as an effective legal tool, and scarce case law that PADs are enforceable, evidence suggests that PADs are often disregarded or not enforced.[xlix] This problem is perpetuated by a lack of clarity provided by the courts, failure of the legislature to provide clear and consistent statutes, unfounded deference to medical professionals, and the stigma that the mentally ill experience.[l] Disregard towards PADs render the document nearly useless, with only residual functionality as evidence of the patient's wishes. However, there may be situations where it is proper to ignore a PAD.[li] State statutes vary on the issue but the general consensus is that a PAD may be properly ignored in situations where the patient is considered a danger to herself, himself, or others, during an emergency situation not foreseeable, the care provider believes that the PAD was executed in bad faith, under coercion, or not consistent with the generally accepted standard of care.[lii] Some states go further allowing a care provider to ignore a PAD if the values and morals present in the document are in conflict with their own or when the care provider believes that the course of treatment requested will be ineffectual.[liii] The above-stated reasons are too vague to provide health care workers with any cogent boundaries or to ensure the patient that their wishes will be followed. Such reasoning reinforces a paternalistic relationship between doctor and patient, as the doctor is often given full discretion to decide when a PAD should be ignored. A stigmatizing relationship is also developed because giving a health care provider such control over the mentally ill individuals buttresses unfounded fears and notions about the mentally ill.

Perhaps more convincing reasons to override a PAD under the appropriate circumstances could also be articulated by state statute. Several states encourage a PAD to be disregarded in the event that the appointed proxy is not making decisions consistent with the wishes of the patient.[liv] As discussed earlier a patient may make an instructional document, simply appoint a proxy, or do both. If the patient opts to only appoint a proxy and leave no written documentation there is no guarantee that the patient's true wishes will be followed. This may happen for a number of reasons. The proxy may feel a fundamental ethical or moral deviation from the patient's own ideas, may be coerced into decisions by family members, friends, and care providers, or simply be unaware of the patient's true wishes. A doctor or care provider would likely be able to accurately gauge that a proxy is not making decisions consistent with the known wishes of the patient. There are two reasons it is plausible. First, most mentally ill patients are admitted to a hospital or facility more than once or receive regular therapy and drug treatment, and so have conversations with their care providers about their care. Secondly, it is also common that when executing or preparing to execute a PAD the patient will facilitate a dialogue with a care provider about the potential course of their disorder and potential treatment options as well as the viability of those options.[lv]

There is also evidence to suggest that clinicians fully examine PADs before deciding to override or implement the document.[lvi] A recent study examined how often instructional PADs were enforced when the instruction prohibited medication.[lvii] Two types of PADs were examined: those with instructions to refuse medication backed by conventional reasoning and those with instructions to refuse medication backed by delusional reasoning. Clinicians were more likely to enforce a PAD that contained conventional reasoning for the refusal, such as undesirable side effects of the medication, at a rate of 74%.[lviii] Clinicians were much less likely to enforce a PAD containing delusional reasoning, at a rate of 23%.[lix] An example of delusional reasoning for the refusal of drugs would be that constant exposure to the sun ameliorated the disease and thus medication was not necessary. The explanation for this is most likely the clinician's internal ethical conflict between preserving the wishes of the patient and therefore the patient's autonomy and preserving the welfare of the patient over that autonomy.[lx] A separate part of the study also showed that instructional PADs that lacked any explanation for the instruction to refuse medication were enforced 53% of the time.[lxi]

Option to Revoke

Although enforcement by health providers is a central concern to the efficacy and availability of PADs, the possibility of revocation is just as problematic. Many state statutes allow an individual who creates a PAD to revoke that PAD under certain circumstances. Previous examples serve to show that a state may allow the individual to revoke a PAD only when the person is competent to do so, but also regardless of competency. States allowing revocation while incompetent create an unnecessary anomaly. To begin with, competency is a necessary prerequisite to execute a valid PAD, yet a state will make it permissible to revoke that instrument while incompetent. Not only does the ability to revoke a PAD while incompetent negate the central purpose of the document, it is also indicative of legislature's attitudes toward the mentally ill. A person creates a PAD not simply because that person wants autonomy but also to prevent the person from making poor health care decisions during an acute psychotic episode.[lxii] It is likely that legislatures, because of paternalistic ideology and the persistent stigma towards the mentally ill, allow revocation while incompetent because it gives health care providers an opportunity to disregard PADs that do not conform to the health care provider's own ideology. 

Beyond the problem of invalidating the purpose of a PAD by allowing revocation while incompetent, there is also a conflict with basic principles of law. At the heart of medical decision-making is the principle of informed consent.[lxiii] Much like a PAD, the purpose of informed consent is to protect the patient from coercion and insulate autonomy and fundamental rights. Informed consent requires that the individual is competent before that individual can accept or refuse treatment. If legal principles require that the patient give informed consent before receiving or rejecting treatment, then that person must be competent. When a patient experiences an acute psychotic episode that person is no longer competent and therefore unable to give informed consent to treatment. Therefore, a state that allows a patient to revoke a PAD while incompetent also allows an incompetent patient to make a decision about their health care that requires informed consent. In doing so the hospital is exposing itself to liability and ethics violations by ignoring the necessity of informed consent.

Cases and Decisions

The development of the right to refuse and accept treatment through the use of PADs has been slow to evolve. Reasons for the sparse amount of case law is not definitively known. Potential reasons may be that mentally ill persons may not seek out legal assistance, or may not know that legal assistance and relief is available to them. Whatever the reason, it is clear that the future of PADs is uncertain. The following cases are the extent of the most contemporary and legally significant cases available for review and discussion.

Rennie v. Klein

In the case of Rennie v. Klein[lxiv] John Rennie was diagnosed with paranoid schizophrenia.[lxv] Mr. Rennie had been hospitalized on account of the paranoid schizophrenia numerous times and at various intervals during those hospitalizations he was both voluntarily and forcibly medicated.[lxvi] During a particular involuntary hospitalization Mr. Rennie filed suit alleging that the forcible medication was a violation of his constitutional rights. The Court of Appeals for the Third Circuit held that the fourteenth amendment protects an individual's fundamental right to refuse antipsychotic drugs and involuntary medication and that the right goes further to protect individuals who were involuntarily committed from such bodily intrusion.[lxvii] However, this right is not absolute. The right to be free from bodily intrusion is always subject to a balancing between the individual's interest in their fundamental rights and the state's interest the valid exercise of its parens patriae power under the U.S. Constitution. Under Rennie, a decision to administer medication will be presumed valid unless it is shown that there has been a substantial departure from acceptable professional judgment, practice, or standards.[lxviii]

In re Rosa M.

Committed to a state psychiatric center Rosa M. consented to electroconvulsive therapy but refused the therapy at a subsequent date. Her oral refusal was coupled with a written refusal of further treatment by that particular therapy. This refusal amounted to an informally executed PAD. Upon withdrawal of consent the clinic director sought a court order compelling further treatment for Rosa M. through electroconvulsive therapy. The court denied the petition stating that all individuals, inclusive of those considered mentally ill, have a right to make decisions about their own health care. This right is predicated on a showing that at the time the decision concerning health care is made the person is competent to understand the written refusal or consent and also has the capacity to make such a decision.

Although the mentally ill are generally protected from forcible administration of medication[lxix] and involuntary commitment[lxx], there is no coherent rule of law prohibiting forcible medication and involuntary commitment in all its forms.[lxxi] In fact, involuntary commitment may render the individual incompetent simply by the fact that they are committed. However, the courts have expressly defined a constitutional right to refuse intrusive mental health treatment as essential to an individual's retention of personal liberty. The courts have also enunciated that there is a fundamental right in making health care decisions[lxxii], but the court has not specifically articulated whether or not the mentally ill enjoy the same right to self-determined medical treatment. A fundamental right to exercise control over one's psychiatric treatment is only implied by the fundamental right to exercise control over one's medical care and by the fundamental right of personal liberty. Taken together one can assume that if faced with the decision the Supreme Court would be likely to uphold the legitimacy of PADs. However it is not clear whether or not courts will be more willing to uphold a PAD refusing treatment over a PAD requesting treatment.

Hargrave v. State of Vermont

In Hargrave v. State of Vermont [lxxiii] Plaintiff Nancy Hargrave, on behalf of herself and others, contended that there is a right to have her expressed wishes in a durable power of attorney, essentially a Psychiatric Advance Directive, compliant with Vermont state law, followed by health care providers. Nancy Hargrave had been diagnosed with paranoid schizophrenia and hospitalized on several occasions. During her second confinement at the Vermont State Hospital the facilities agents and employees forcibly administered psychiatric medication to her during a non-emergency situation. Prior to that confinement Ms. Hargrave had executed a Psychiatric Advance Directive compliant with Vermont law. In that form she explicitly refused authorization of any anti-psychotic, neuroleptic, psychotropic, or psychoactive medication.[lxxiv]

In sum Plaintiffs requested a review of the Vermont state law as it disproportionately disenfranchised the mentally ill.[lxxv] The Vermont statute allowed an individual to execute an advance directive for health care which it named a durable power of attorney under 14 VSA § 3451 citing purpose as an effort to enable adults to retain autonomy through management of their health care decisions.[lxxvi] This durable power of attorney could be revoked in three ways: one, by notice by the principal to the agent or health care provider orally, in writing, or by some other overt act tending to suggest a clear intent to revoke; two, a subsequent durable power of attorney; and three, by divorce when the spouse was the agent of the principal.[lxxvii] In addition, 18 VSA § 7624 permits the state, under certain circumstances, to medicate individuals who have been involuntarily committed and diagnosed with a psychiatric disability, regardless of the existence of a durable power of attorney.[lxxviii]

Judge Jerome Neidermeier explained that a durable power of attorney was statutorily sanctioned and once Vermont took it upon itself to extend this statutorily sanctioned opportunity to citizens, a right was created which must be recognized and validated by the state.[lxxix] Judge Neidermeier added that the right must be recognized and validated by the state regardless of whether there was a non-emergency or emergency situation.[lxxx] The district court found the statute to be facially discriminatory against the mentally ill because it allowed lawfully formed and executed durable power of attorneys to be contravened by health care workers and courts.[lxxxi]

While case law is currently scarce, the record indicates that more patients are willing to pursue enforcement of their individual PADs. With this trend the legal community should expect to see an emerging trend on the use, format, execution, and enforcement of PADs. At this time case law indicates that a PAD will be upheld as valid as long as the patient was competent at the time the instrument was signed and it comports with state requirements. It is also apparent that a PAD could be subjected to a balancing test by the court weighing the patient's fundamental rights against the generally accepted practices of the healthcare community and public policy considerations.

[i] N. C. Brahm & J. C. Kissack, Psychiatric Advance Directives and board Certified Psychiatric Pharmacists: An Opportunity for Patient Empowerment, JCPNP, at 2, 2008.