Superseding psychiatric advance directives

Abstract

Psychiatric advance directives (PADs) were introduced in the 1980s as legal instruments for psychiatric patients to retain some choice over their own mental health treatment during periods of decisional incapacity. However, PADs are nested in larger structures of mental health law and policy that protect the interests of parties other than the patient, and which, in situations of conflict involving the treatment of incapacitated patients, tend to favor the clinician's professional judgment over the patient's manifest wishes to avoid standard treatment. Thus, PADs are trumped by civil commitment law and may also be legally overridden by clinicians who, acting in good faith, consider PAD instructions to be inconsistent with accepted clinical standards of care. We discuss philosophical-ethical and legal issues surrounding overriding PADs and offer analysis of the possible future of legal cases in which the question of overriding PADs and fiscal concerns may collide.

Psychiatric advance directives (PADs) were introduced in the 1980s as a means for psychiatric patients to retain choice and control over their own mental health treatment during periods of decisional incapacity.1–4 PADs provide two legal devices—mental health advance instructions and proxy decision-makers—that can be used, separately or together, to refuse or consent to specific types of treatment during a future mental health crisis. Twenty-five states have enacted PAD statutes, and new research suggests there is high latent demand for PADs; 66 to 77 percent of over 1,000 mental health consumers recently surveyed in five U.S. cities indicated that they would complete PADs if given the opportunity and assistance to do so.5 However, the new PAD statutes contain a large contradiction: although the intent of PADs is to increase patient self-determination, PAD statutes allow doctors to override treatment requests they deem inappropriate.

The extent to which clinicians override PADs in practice, the situations in which they override them, their reasons for doing so, and how they communicate these reasons to patients and family members could either seriously undermine PADs or actually help to implement these legal instruments more broadly. In this article, we discuss criteria for superseding PADs and the ethics implications for overriding or honoring them. We also speculate on legal prospects for the override features of current PAD statutes.