Providing in advance for treatment choices with Psychiatric Advance Directives

This article is excerpted from ENVOY, August/September 1995

by Elizabeth Gallagher, J.D.

A psychiatric “living will” is a revolutionary legal tool that gives consumers of mental health services the opportunity to plan in advance for treatment they may receive when unable to make informed choices.

A persistent theme echoed by consumers of mental health services everywhere is their reluctant alliance with a mental health system that continually usurps their autonomy and disregards their choices regarding their own mental health treatment.  Many consumers live in fear, not so much of their own illness but of the total loss of control that frequently accompanies the treatment process.

Underlying the well-ingrained therapeutic culture that reinforces the disempowerment of consumers is the questionable assumption that mental health consumers are by nature of their disability unable to make informed, reasoned choices about their own psychiatric health care.  While it is true that mental health consumers often experience episodes during which their decision-making ability breaks down, many – if not most – consumers also experience sustained periods of stability during which they are completely capable of making informed, reasoned health care choices.

Recently, mental health advocates across the country have seized upon a revolutionary legal tool known as a “Psychiatric advance directive” as a means of permitting consumers to retake control of the treatment process.  An advance directive is a legally enforceable document, much like a living will, in which consumers can specify what treatment they wish to receive, or not to receive, in the event that they later become unable to make reasoned treatment decisions.

An advance directive is created during a time when a person’s illness is not so severe as to impair his or her judgment (i.e. while a consumer is legally “competent”).  The directive lies dormant and has no legal effect until such time as the individual becomes incapable of making informed treatment decisions (i.e. , is legally “incompetent”).  At that point, the advance directive springs into effect and “speaks” for the consumer, having the same force and effect as if the person were presently able to exercise informed, rational choice.

There are two general types of advance directives.  The first is called an “instructional directive.”  An instructional directive is a document that provides specific instructions to medical providers about the treatment a person wishes to receive.  An instructional directive could specify, for example, that a person wishes to be treated with lithium but not antipsychotics, or that in the event of an emergency he or she wishes to be put in seclusion as opposed to restraints.  It could provide that an individual prefers a longer hospital stay to more aggressive drug therapy.  It could also incorporate anecdotes about the individual’s experience with prior treatments or information about personal “tripwires” that have led to an escalation of conflict.

The second general type of advance directive is called a “proxy directive.”  In the state of Washington, a proxy directive is more commonly known as a “durable power of attorney for health care.”  A proxy directive is a document that,  instead of providing particular instructions to providers, appoints a person (known as a “proxy” or “health care agent”) that the consumer authorizes to make decisions on his or her behalf.  A proxy directive can specifically limit the authority of the health care agent to certain types of decisions. Or it can provide specific guidance as to how particular decisions should be made.

The legal enforceability of psychiatric advance directives varies according to the type of directive used.  Washington law (RCW 11.94) specifically allows a person to create an enforceable durable power of attorney for the purpose of conveying authority to another person to make health care decisions.

The law (RCW 70.02) also provides that a health care agent’s authority is trumped only by that of a court-appointed guardian.  (Significantly, the fact that a person has executed a durable power of attorney generally obviates the need for resort to guardianship.  For this reason, an advance directive can be a powerful guardianship avoidance device.)

Whether instructional directives are legal valid is a more difficult question, since there is no specific Washington statute that authorizes their use.  While there is good reason to believe that an instructional directive would be valid to communicate a refusal of a particular form of treatment, it is doubtful that a physician could be forced to renter an alternative treatment with which he or she does not agree or which is not considered to be within the scope of acceptable medical practice.

However, the uncertain legal enforceability of instructional directives is largely a theoretical question and does not diminish their useful as a practical matter.  This is because, as a matter of constitutional law, anyone making decisions for an incompetent person (whether a physician, family member, or guardian) must “don the mental mantle” of the incompetent person and make decisions in accordance with how he or she believes the incompetent would have made them if able to do so.   This constitutional principle is known as “substituted judgment,” and it has been upheld by the U.S. Supreme Court in numerous cases.  Therefore, whether or not an instructional directive is directly enforceable upon a provider, it is likely to be the clearest and most definitive articulation of a person’s desires while competent for purposes of exercising substituted judgment.  For this reason, an instructional directive has an inescapable legal effect.

It is not just the legal enforceability of advance directives that may warrant the respect of providers. Providers may welcome an advance directive because it provides useful information and guidance, it has the potential to minimize conflict, and it fosters a collaborative, rather than an adversarial, relationship with patients.

Some consumers, especially those who experience alternating periods of competence and incompetence, express an interest in using an advance directive to ensure that they get treatment that they know they will later be resisting.  These consumers ask whether an advance directive could specify that they wish to be bound to their decision to receive treatment regardless of any subsequent refusals.  This kind of provision, known as a “Ulysses clause,” presents a difficult legal question that no court appears to have yet addressed.  Most scholars, however, believe that such a clause would not be enforceable against a person who remains legally competent, since a competent person retains the right to revoke an advance directive at any time.

Mental health family advocates are often heard to depreciate the value of advance directives because of the perceived unenforceability of a clause that irrevocably binds a consumer to treatment.  If a person can revoke advance directives at any time, they say, what good are they?  First, it should be clarified that an advance directive probably can be revoked only if a person is competent.  If a person’s irrational refusals of treatment result from a state of legal incompetence, the advance directive would likely continue in effect.  However, even if the directive were held unenforceable, it might well continue to affect the exercise of decisions made on the person’s behalf (recall the doctrine of substituted judgment), since an advance directive may be the best evidence of a person’s values and choices while competent.

Furthermore, the objections of family advocates reflect a very narrow perception of the function of advance directives. For many consumers the issue of ensuring against their irrational refusal of treatment never arises.  On the contrary, many consumers remain steadfast in their attitudes toward treatment but are nonetheless unable to make and express reasoned choices during acute episodes of mental illness.  For these individuals, advance directives provide a unique opportunity for their values and preferences to be known and respected.

Advance directives also offer person benefits to consumers and their families.  By challenging the consumer to undertake advance planning and to be responsible for the consequence of his or her decisions, family members and friends are relieved of the responsibility of making difficult choices that the consumer may resent and which may cause a rift in significant relationships.  Finally, the process of designing an advance directive has been regarded by consumers as immensely helpful in structuring their thoughts about their own values and preferences.  The drafting of an advance directive also often provides the stimulus and forum for frank discussions with friends and family members about issues that are too often avoided.

Other benefits that man ultimately result from the use of advance directives include more effective an expedient treatment and a diminished need for resort to indoluntary commitment and guardianship.  Advance directives may also increase the willingness of consumers to seek voluntary treatment and may ultimately lead to the adoption of a truly collaborative treatment model as opposed to the current adversarial one.

Advance directives are not a panacea.  They do not always obviate the need for involuntary treatment, and they are not well adapted to use by consumers who are erratic in their attitudes toward treatment while still competent.  But for many consumers, advance directives offer an unprecedented opportunity to take charge of their own mental health treatment and a challenge to rise to the occasion of self-responsibility, an integral component of mental health.

Rhonda Syphax of the Greater Seattle Depressive and Manic Depressive Association and Sherry Storms of the King County Ombuds Service have received a grant from King County Mental Health Division to hold workshops on Advance Directives.  In concert with WPAS, they will offer eight, free, half-day workshops for King County mental health consumers on writing Advance Directives.  Workshop participants will be guided to answer questions that will assist them to complete their own Advance Directive.  A WPAS attorney will be present at all workshops to offer free legal advice.  For more information, please call WPAS and ask for Rhonda.

*Editor's Note: Disability Rights Washington was formerly known as Washington Protection and Advocacy System.

ENVOY Credits

ENVOY Editor:  Nicole Elger
ENVOY Editorial Assistant:  Annaliza Torres
ENVOY Staff Contributors:   Elizabeth Ambrose, Randy Brown, Marie Jensen, David Lord, Sandy Macdonald, Gillian Maguire, Betty Schwieterman, Michael J. Smith, Thomaszine Weathersby
ENVOY Other Contributors:  Elizabeth Gallagher, Bob Kafka, Noel Nightengale

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