Advance Directive for Mental Health Care: An Analysis of State Statutes ⁽¹⁾

Robert D. Fleischner

Introduction

There is increasing interest among people with mental illness and their clinicians and service providers that advance health care planning may enable individuals to have greater control of their treatment, may provide important information to guide health care providers to make treatment decisions, may reduce the need for formal court adjudications of treatment, and may reduce the costs associated with involuntary care. ⁽²⁾ Likewise, it has been argued that use of written advance directive instruments may have significant therapeutic value and function as an important "safety valve" for difficult treatment and legal issues. ⁽³⁾ However, advance written health care directives are not without significant limitations and are uniquely products of state law.

The potential benefits and problems which attend advance directives for mental health care may best be understood in the context of the right of individuals with mental illness to control their own treatment. This body of law has been the subject of heated debate, scholarly inquiry, legislation and litigation. Beginning in the early 1960s, much of the controversy focused on the extent of the government's authority to involuntarily hospitalize -- civilly commit -- people who are believed to be mentally ill. ⁽⁴⁾ Since the 1970s, the debate has often concentrated on whether, to what extent, and pursuant to what process the government may medicate individuals with mental illness despite their unwillingness or inability to consent to such interventions. ⁽⁵⁾ These issues have often been raised in cases which sought to establish a right to refuse treatment. ⁽⁶⁾

Despite nearly four decades of reform and retrenchment, civil commitment law remains in flux. ⁽⁷⁾ The Supreme Court has said that the liberty interest in avoiding involuntary psychiatric hospitalization is a fundamental one. ⁽⁸⁾ Nevertheless, even without minimizing the increased procedural protections achieved in the early litigation, some states have recently broadened the substantive criteria for commitment and many states have instituted outpatient commitment laws. ⁽⁹⁾ Important recent research on dangerousness will almost certainly influence ongoing disputes about civil commitment standards. ⁽¹⁰⁾

Debate about the extent of a person's right to make individual medical decisions also continues and has not been limited to mental health care. The issue is just as present in the context of physical health decision making. The Supreme Court and many state courts have recognized or "assumed" a constitutionally protected liberty interest in making health care decisions and various state interests which may serve to limit the individual right. ⁽¹¹⁾ In the Cruzan case, the Court determined the state's interest in prolonging life is sufficiently strong to justify a state requirement of clear and convincing evidence to support a person's refusal of life sustaining treatment or nourishment. ⁽¹²⁾ The Court thus established a procedural standard requiring that the exercise of the right be clearly expressed and, thereby, greatly increased the utility and advisability of written advance health care directives.

Likewise, the extent of the right of a person with mental illness to refuse treatment remains in question. Although courts have recognized that at least a limited right to refuse exists, ⁽¹³⁾ the parameters of the right and the protection from forced treatment that it provides vary from jurisdiction to jurisdiction.

Despite uncertainty about its scope, it seems clear that the right to refuse psychiatric treatment is founded on the same values of autonomy and self determination as the right to refuse treatment generally. ⁽¹⁴⁾ In fact, the Cruzan Court cited earlier decisions which involved mental health treatment, including language in Washington v. Harper ⁽¹⁵⁾ that the Due Process Clause provided convicted prisoners with mental illness have "a significant liberty interest in avoiding the unwanted administration of antipsychotic medication." ⁽¹⁶⁾ Since the basic rights involved in treatment decision making for people with physical illness and those with mental illness appear to be the same, the Cruzan decision's emphasis on clearly expressed health care treatment desires has important implications for people who receive or may be referred for psychiatric or other mental health care and treatment. Individuals, who while they are competent, make clear advanced health care decisions, either orally or in writing, should have those decisions respected even if the person becomes incompetent. ⁽¹⁷⁾ In fact, every state has enacted some form of advance written health care directive statute which is intended to provide a mechanism for clearly and formally expressing health care choices. ⁽¹⁸⁾

In general terms, an advance written health care directive is a document which is executed pursuant to certain, usually simple, formalities ⁽¹⁹⁾ and which expresses an individual's wishes and desires regarding health care if and when the person is not capable to make choices or to make those choices known. There are a variety of kinds of advance directives, but most fall within two general categories -- instructional or agent driven.

An instructional directive, most often called a "living will," sets out in written form the person's desires for treatment. Living wills are most commonly used in end-of-life situations and most states that recognize them require that the instructions be followed by health care providers. Agent driven directives, often called health care powers of attorney or proxies, may include specific instructions, but also appoint an agent, or attorney-in-fact, to act in the place of the individual when the individual is not capable to make health care decisions. ⁽²⁰⁾ Usually, the agent driven directive is not in effect until the individual is determined, ordinarily by his or her treating physician, to be incapable. When that happens, the agent's authority "springs" into effect and he or she is empowered to act in the stead of the now incapable person. In most states, if the written directive includes instructions to the agent, the agent must follow those instructions. If the directive does not include instructions, the agent may be required to employ a substituted judgment ⁽²¹⁾ test or to act in what the agent determines to be the individual's best interest. Health care providers are usually required by the statutes to follow the instructions of an agent acting pursuant to an advance health care directive.

The majority of the of state advance directive statutes expressly or by implication apply to mental health care. Some states, however, have also enacted advance directive statutes which apply specifically and solely to mental health treatment or to some kinds of mental health treatment.

The Table

The table (***IMPORTANT NOTE: This table is not available in electronic format. If you would like a copy faxed to you, please contact Elizabeth Priaulx via e-mail: Elizabeth.Priaulx@ndrn.org - Thank you!***)attempts to describe some the elements of state advance health care directive statutes that are of particular relevance to people with mental illness. The table analyzes the statutes of each of the 50 states and the District of Columbia in several areas. Reading from left to right, the informational columns are as follows:

State name: The name of the state appears in this column.

AD St[atute]: This box is 'd if the state has some sort of advance directive law.

Date: The date is this column is the date when the AD statute was first enacted. In states in which existing power of attorney statutes were amended to include the right to delegate health care decisions, the date that appears is the one when the health care authority was added. Some other states have substantially amended their AD statutes. In those cases, the chart usually reflects the date of the amendment.

Citation and Type of Directive: The information in this column contains the citation to the generic health care advance directive statute or statutes. Following the citation is an indication of the type of statute, often indicated by an abbreviation. The description of the type of statute is derived from the language the legislature chose.

Common abbreviations which appear in this column include:

DPA -- Durable Power of Attorney

DPA/HC -- Durable Power of Attorney for Health Care

HCAD -- Health Care Advance Directive

AD/HC -- Advance Directive for Health Care

HCP -- Health Care Proxy

LW -- Living Will

The name may or may not be significant.

Agent: If this box is 'd, the statute allows for the appointment of an agent or an attorney-in-fact for health care decisions.

Instructio[n]: If this box is 'd, the statute allows the principal to include instructions to the agent in the advance directive.

M[ental] H[ealth] Decisions: If this box is 'd, the statute allows the generic advance directive to be used for mental health care decisions. In most cases, the statue mentions mental health treatment directly. In others, if there is no mention, but also no exclusion, it is assumed that the directive may be used for mental health purposes.

M[ental] H[ealth] AD Sta[tute]: If this box is 'd, the state has some sort of advance directive statute that applies specifically and only to some or all kinds of mental health treatment.

MH [AD] Cite: If there is an advance directive law statute that applies only to mental health care, its citation will appear in this column. In most cases, the name of the directive and the date the law became effective also appear.

Prescribed form: Virtually every state requires some degree of formality in the execution of an advance directive. This column is intended to state the degree of formality necessary. In particular, it looks at whether there is a mandatory form that must be used for the document to be valid.

Agent's Responsibility & Authority: The information in this column reveals the standard which the agent or attorney-in-fact must use in making health care decisions for an incompetent principal.

Notes: The notes which appear in this column describe provision of the statute which may have some particular relevance to people with mental illness.

Revocation: The information in the final column describes the process and conditions for revocation of the directive. In states in which there is not an explicit requirement that the person be competent to revoke, the assumption is that competency is not a factor.

Analysis

The following general conclusion can be drawn from the review of the state advance directive laws:

Every state has one or more kind of instructional advance directive statute which allows for the appointment of an agent.

Some states use one kind of advance directive for end-of-life treatment and another for other heath care.

The most common form of advance directive is the durable power of attorney for health care. Most of the states have either added health care decision making to the authority of an agent-in-fact or have drafted separate laws which track the elements of the standard durable power of attorney law.

Most states specifically allow non-end-of-life advance directives to be used for mental health treatment as well as physical health treatment purposes.

Some states do not mention mental health care in their advance directive laws, but do not exclude it either.

Several states allow mental health treatment to be addressed in an advance directive, but prevent the agent or attorney-in-fact from making certain mental health treatment decisions -- usually convulsive treatment, involuntary commitment and psychosurgery.

A very small number of states specifically exclude mental health care from their generic advance directive statutes.

Most of the states which exclude mental health treatment from the generic advance directive law have other specific laws which address advance planning for mental health care. At least one state has an instructional advance directive for mental health care that does not require the appointment of an agent.

A few states which allow the generic advance directive to be used for mental health care have also enacted mental health specific advance directive laws, thereby providing an option to the person wishing to plan for future mental health care.

Just under half the states require that a principal be competent to revoke the advance directive. A few statutes are silent as to whether capacity to revoke is necessary. Most of the other states allow revocation at any time, regardless of capacity.

Specific mental health advance directives are irrevocable after loss of capacity in every state that has adopted such a device.

Every state requires that certain elements or language appear in an advance directive for it to be valid. Most states suggest a form in the statute and require at least that the advance directive be substantially similar to the statutory form.

Every state requires that the agent or attorney-in-fact follow the principal's instruction regarding health care. Usually the statute says that the instruction may be in the advance directive itself or may be otherwise known to the agent. When the agent does not know or cannot ascertain the principal's wishes, every state that addresses the problem requires that the agent make a decision that he or she determines to be in the principal's best interest. A few states require that when the instruction are unknown, the agent engage in a substituted judgment process to determine what the principal would do if he or she could decide.

Most of the state laws are silent on the relationship between a health care agent and a guardian, if there is one.

Barriers to Use of Advance directives by Individuals Wishing to Plan for Future Mental Health Care

In 1994, Paul Sherman, one of the first people to envision the potential benefits of advance directives for people with mental illness, identified barriers to their use in five areas: educational issues, logistical issues such as the shortage of legal assistance and of people to serve as agents, legal issues, consumer behavioral issues including the fear of being coerced or manipulated to sign an advance directive, and enforcement issues. ⁽²²⁾ An analysis of the statutes and the experience of protection and advocacy system ⁽²³⁾ advocates indicate that Dr. Sherman was prescient. The barriers include:

Advance directives are legal documents which must be executed with some amount of formality. Although pre-printed forms are available and it is usually not essential to have an attorney draft the instrument, some individuals may be dissuaded by the formality of the process. ⁽²⁴⁾

Advocates report that some individuals do not execute advance directives because they do not have a person available and willing to act as an agent or attorney-in-fact.

Revocability is an issues for some individuals. Some people may want to write a document that is irrevocable after they have been determined to lack capacity to make health care decisions. For example, someone who has learned from personal experience that she sometimes stops taking medication, becomes incapable and then refuses the medication, may want an agent to have the authority to consent for her during her incapacity. She may fear that she will revoke the advance directive or override her agent's directions. If she is in a state that allows revocation at any time, even when the individual is incompetent, she may feel that writing the advance directive is a useless exercise.

On the other hand, a person may not want to draft a document that is irrevocable. She may feel that she cannot anticipate all future circumstances, ⁽²⁵⁾ and may not want to be bound by even her own words in the circumstances of an uncertain future. This individual might be reluctant to execute an advance directive in a state which not permit revocation after a determination of incapacity.

Maine and Illinois, which have both a generic advance directive law which allows post-incapacity revocation and a special mental health directive law which does not, may at least offer the individual a choice.

Some individuals may be concerned about the utility of Advance directives when they may be overridden, as in some states, by a emergency situation, by a court order for treatment, by a guardian or other reasons. In some states the relationship between the advance directive law and the court decisions regarding forced treatment are unclear at best. ⁽²⁶⁾

The laws are often confusing. Even the excellent training manuals which some protection and advocacy programs ⁽²⁷⁾ have written for their clients are often necessarily lengthy and may be complicated for some individuals.

Conclusion

Despite the uncertainties, their inherent limitations and the barriers to their use, advance directives may offer people with mental illness a formidable device to gain more control of their treatment and to promote their autonomy.

1. The preparation of this article was supported by a grant from Center for Mental Health Services, Substance Abuse and Mental Health Services Administration, United States Department of Health and Human Services. The author expresses his thanks to the Center for Mental Health Services and to the Advocacy, Training and Technical Assistance Center of the National Association of Protection and Advocacy Systems for their support of this work. The opinions expressed herein are the author's and do not necessarily express the opinions of the funding agencies.

2. Paul S. Sherman, Advance Directives for Involuntary Psychiatric Care, in Symposium Proceedings, Involuntary Interventions: The Call for a National Legal and Medical Response (1994) 1.

3. Bruce J. Winick, Advance Directive Instruments for Those with Mental Illness, 51 U. Miami L. Rev. 57, 81-85 (1996)(Winick I).

4. See, e.g., Note, Developments in the Law: Civil Commitment of the Mentally Ill, 87 Harv. L. Rev. 1190 (1974); Lessard v. Schmidt, 349 F.2d. 1078 (E.D. Wisc. 1972), vacated and remanded, 414 U.S. 473 (1974), judgement reinstated, 413 F.Supp. 1318 (E.D. Wisc. 1976)(procedural rights); O'Connor v. Donaldson, 422 U.S. 563 (1975)(finding of mental illness alone does not justify civil commitment); Addington v. Texas 441 U.S. 418 (1979)(standard of proof).

5. The body of literature in legal and medical journals regarding the right to refuse treatment is extensive. Some recent articles include, Elyn R. Sacks, Competency to Refuse Psychotropic Medication: Three Alternatives to the Law's Cognitive Standard, 47 U. Miami L. Rev. 689 (1993); Bruce J. Winick, The Right to Refuse Treatment: A Therapeutic Jurisprudence Perspective, 17 Int'l J. L. & Psychiatry 99 (1994). For a thorough analysis of the right to refuse treatment see, Michael L. Perlin, Mental Disability Law: Civil and Criminal, § 5.00. See, also, American Bar Association, Commission on the Mentally Disabled, The Right to Refuse Antipsychotic Medication (1986), a collection of articles by attorneys, psychiatrists and others expressing a wide range of views about the right to refuse treatment, its implementation and its impact. The titles alone of two early articles presenting polar views of the right provide some insight into the extent of the debate. Compare, Paul S. Applebaum and Thomas Gutheil, Rotting with their Rights On: Constitutional Theory and Clinical Reality in Drug Refusal by Psychiatric Patients, 7 Bull. Am. Acad. Psychiatry & Law (1979) and Robert Plotkin, Limiting the Therapeutic Orgy: Mental Patients' Right to Refuse Treatment, 72 Nw. L. Rev. 461 (1978).

6. Among the earliest cases were Rennie v. Klein, 462 F. Supp. 1131 (D.N.J. 1978), suppl., 476 F.Supp. 1294 (D.N.J. 1978) modified, 653 F.2d 836 (3d Cir. 1981), vacated and remanded, 458 U.S. 1119 (1982), on remand, 720 F. 2d 2661 (3d Cir. 1983) and Rogers v. Okin, 478 F. Supp. 1342 (D. Mass. 1979), modified 634 F. 2d 650 (1st Cir. 1980), vacated and remanded sub nom Mills v. Rogers, 457 U.S. 291 (1982), on remand, 738 F. 2d (1st Cir. 1984). The Supreme Court has considered the extent of the right in several cases including Riggins v. Nevada, 504 U.S. 127(1992)(forced drugging of a pretrial detainee during trial deprived him of a fair trial)and Washington v. Harper, 494 U.S. 210(1990)(prisoner has a significant constitutional due process interest in avoiding unwanted administration of antipsychotic medication). For an extensive review of the case law see Perlin, supra, n.5. 

Although the right to refuse treatment was first articulated in court opinions, several states have codified the right in one form or another. See, e.g., Mass. Gen. Laws. c. 123 § 8B (adopting court ordered standards for civilly committed inpatients). Most recently, Vermont has amended its involuntary treatment law. Public Act 114 (1998) adding Vt. Stat. Title 18 §§ 7624 - 7629 and amending §§ 7509 and 7620 - 7621. The act establishes proceedings for involuntary medication and purports to supercede agreements reached in a consent decree settling a right to refuse treatment law suit. In addition, the act establishes new procedures regarding the effect of durable health care powers of attorney executed by persons who are involuntarily hospitalize. In effect, the law allows a court to override the instructions of an advance directive if the facility can show that, after following the instructions of the directive for forty-five days, the incompetent "person has not experienced a significant clinical improvement in his or her mental state." Vt. St. T. 18 § 7626.

7. Winick I, 51 U. Miami L. Rev. at 58-59 (1996).

8. Foucha v. Louisiana, 504 U.S. 71, 80, 86 (1992).

9. Steven J. Schwartz & Cathy E. Costanzo, Compelling Treatment in the Community: Distorted Doctrines and Violated Values, 20 Loyola of L.A. L. Rev. 1329 (1987)(including tables of outpatient commitment statutes).

10. Henry J. Steadman et al., Violence by People Discharged From Acute Psychiatric Inpatient Facilities and by Others in the Same Neighborhood, 55 Arch. Gen. Psychiatry 393 (1998). This important work has already been cited by at least one newspaper editorial calling for reconsideration of civil commitment standards in the wake of the shooting of security guards at the Capitol, allegedly by an individual with mental illness. Editorial, Rationality About the Mentally Ill, Boston Globe, City Edition, August 3, 1998, p. A10.

11. In Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990), the Supreme Court was willing to assume that the Constitution grants a competent person a right to refuse life sustaining hydration and nutrition. Id. at 278-79.

12. Cruzan, 497 U.S. at 283

13. See note 6, supra.

14. Lester J. Perling, Health Care Advance Directives: Implications for Florida Mental Health Patients, 48 U. Miami L. Rev. 193, 198 (1993).

15. 494 U.S. 210 (1990).

16. 494 U.S. at 221-22 quoted in Cruzan, 497 U.S. at 278.

17. Winick I, 51 U. Miami L. Rev. at 61-65.

18. Congress has noted the importance of advance directive statutes in the Patient Self-Determination Act, 42 U.S.C. §§ 1395cc(f) & 1396a(w)(1994). The Act encourages the use of advance directives by requiring that any service provider participating in the Medicaid or Medicare programs must inform patients about the state law concerning directives.

19. Written directives may be followed even when precise formalities are not followed. See In re Rosa M., 597 N.Y.S.2d 544 (Sup. Ct 1991)(upholding an advance directive by a patient refusing treatment with electroconvulsive therapy).

20. For an analysis of the competence of persons with mental illness to consent to treatment see Thomas Grisso & Paul S. Applebaum, The MacArthur Treatment Competence Study. III: Abilities pf Patients to Consent to Psychiatric and Medical Treatments, 19 L. & Hum. Behav. 149 (1995).

21. In exercising substituted judgment, the decision maker attempts to determine what the incompetent individual would do if he or she was competent. The Massachusetts Supreme Judicial Court, perhaps the leading judicial proponent of the standard in medical decision making for persons who are not capable, explained the doctrine in depth in Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 370 N.E.2d 417 (1977), and applied it to hospitalized incompetent persons with mental illness in the context of treatment with antipsychotic medications in Rogers v. Commissioner of Department of Mental Health, 390 Mass. 489, 458 N.E.2d 308 (1983). These cases and their impact on mental health treatment in Massachusetts are analyzed in John H. Cross, Robert D. Fleischner & Jinanne S.J. Elder, Guardianship and Conservatorship in Massachusetts, §§ 6.00 and 7.00 (1996).

22. Sherman, supra n.2, at 9.

23. Each state has a protection and advocacy program for people with mental illness. The programs are funded by the Center for Mental Health Services pursuant to the Protection and Advocacy for Individuals with Mental Illness Act, 42 U.S.C. § 10801 et seq.

24. The Judge David L. Bazelon Center for Mental Health Law has a model form for a psychiatric advance directivevance directive available on its web site (www.bazelon.org). The Bazelon Center believes the form, which can be completed on line, meets the requirements of every state.

25. Some clinicians share this concern, seeing it as an issue in future planning generally. See, Paul S. Applebaum, Advance Directives for Psychiatric Treatment, 42 Hosp. & Community Psychiatry 983 (1991).

26. For a discussion of the dilemma created by the uncertain relationship of the Massachusetts health care directive law and the substituted judgment process established by the Rogers decision, see, John H. Cross et al, supra n.21,at § 6.08.

27. Protection and advocacy agencies in several states have published useful manuals describing the use of health care directives in their states. See, e.g., Melissa Daar, Tracy Nelson and Daniel Pone, Durable Power of Attorney for Health Care Manual: An Advocacy Tool for Mental Health Consumer Empowerment and Patient Choice,(1994)(available from Protection and Advocacy, Inc., Sacramento, CA.)and Equip for Equality, Inc., The Mental Health Treatment Preference Declaration (1996)(available from Equip for Equality, Inc., Chicago, IL.)