Discuss this article at www.facebook.com/CurrentPsychiatry
Dear Dr. Mossman:
My patient stopped antipsychotic medication, experienced a recurrence of paranoid schizophrenia, and now is involuntarily hospitalized. During her admission assessment, she said she had a “psychiatric advance directive.” I obtained the document, which says she refuses psychopharmacologic treatment under any circumstances. Without medication, she might take years to recover. How should I proceed?
Submitted by “Dr. Y”
Most psychiatrists who regularly practice hospital-based care know their state’s legal procedures for forcing psychotic, civilly committed patients to take medication to relieve their acute symptoms. In most jurisdictions, courts will order medication over a patient’s objection after finding that the patient lacks competence to refuse antipsychotic therapy and that the proposed treatment is in the patient’s best interest.1
But if a patient has a psychiatric advance directive (PAD) that opposes psychotropic medication, things may become complicated. To decide what to do if a patient’s PAD precludes administering a treatment you think is necessary, you should understand:
- what PADs do
- what courts have said about PADs
- what your state’s laws say about PADs
- where and when to seek legal advice.
What are advance directives?
An advance directive (or “declaration”) for health care (ADHC) is a legal document executed by a competent individual that states preferences regarding medical treatment should that individual become incapable of making or expressing decisions.2-4 An ADHC may be a “living will” that lays out instructions for specific health care situations or a “durable power of attorney” (DPOA) that designates a proxy decision maker, or it may include elements of both. In 1990, the U.S. Congress passed the Patient Self-Determination Act,5 which required health care institutions that receive Medicare or Medicaid to ask patients whether they have ADHCs and to give patients information about state laws governing ADHCs.
Modeled after medical advance directives, PADs let competent individuals declare their wishes should they need psychiatric treatment during a period of decision-making incapacity.3,4 At least 25 states have advance directive statutes specific to psychiatry.6 Depending on the state, PADs may allow individuals to assert their preferences regarding psychotropic medication, electroconvulsive therapy (ECT), alternatives to hospitalization, location and length of voluntary hospitalization, the treating psychiatrist, seclusion and restraint, emergency medications, and visitors.
Prevalence and praise
The prevalence of PADs is unknown. A 2006 survey of 1,011 psychiatric outpatients in California, Florida, Illinois, Massachusetts, and North Carolina by Swanson et al7 found only 4% to 13% of patients previously executed a PAD. However, most participants said that if given the opportunity and assistance, they would create a PAD.7
Psychiatric advocacy groups have lauded the development of PADs. For example, the National Alliance on Mental Illness’ position is that “PADs should be considered as a way to empower consumers to take a more active role in their treatment, and as a way to avoid conflicts over treatment and medication issues.”8 Proponents suggest that PADs:
- promote autonomy
- foster communication between patients and treatment providers
- increase compliance with medication
- reduce involuntary treatment and judicial involvement.4,8
Mental Health America launched My Plan, My Life: My Psychiatric Advance Directive in September 2011 to increase public awareness of the availability of PADs.9 Therefore, it is safe to assume that most psychiatrists will encounter patients with PADs.
What if a PAD blocks treatment?
What happens when an adult such as Dr. Y’s patient has a PAD that precludes effective treatment? A similar situation led to Hargrave v Vermont.10
Nancy Hargrave, a Vermont woman with schizophrenia and a history of psychiatric hospitalizations, executed a DPOA—Vermont does not have a separate statute for PADs—in which she explicitly refused “any and all anti-psychotic, neuroleptic, psychotropic, or psychoactive medications,” and ECT.10
In anticipation of situations like this, Vermont’s legislature passed Act 114, a 1998 state law that required caregivers to abide by the DPOAs of civilly committed individuals and mentally ill prisoners for 45 days.10 After this time, a court may override the advance directive and allow involuntary medication administration if a patient “ha[d] not experienced a significant clinical improvement in his or her mental state, and remain[ed] incompetent.”10
In 1999, Hargrave sued the state of Vermont and other parties in federal court, alleging that Act 114 constituted discrimination under Title II of the Americans with Disabilities Act11 because Act 114 excluded her from participating in the “services, programs, or activities of a public entity,” namely, the use of her DPOA under Vermont state law.10 The federal district court sided with Hargrave, concluding that “Act 114 was facially discriminatory against mentally disabled individuals.” One year later, the U.S. Court of Appeals for the Second Circuit affirmed the district court’s ruling.