Advance Directives For Mental Health Treatment:

Clinical & Ethical Issues

Marvin Swartz, M.D.

Department of Psychiatry & Behavioral Sciences

Duke University Medical Center

What is an Advance Directive?

A legal document that permits competent individuals to make choices about the medical treatment they might want or not want if, at some future time, they lose the capacity to make or communicate treatment decisions.

An opportunity for advance planning.

Goals of an Advance Directive

To ensure clients are treated in accordance with their wishes.

To facilitate more informed and open dialogue between clients and their treatment providers.

Two Advance Directive Laws

Advance Instruction: G.S. 122C-71 through 77.

Health Care Power of Attorney: G.S. 32A-15 through 25.

Not required to have either, can have either or both.

Advance Instruction for Mental Health Treatment

Permits individual to plan for, consent to, or refuse: Hospital admission Administration of medications Electroconvulsive treatment Other treatments for mental illness

In the event individual loses decision-making capacity (is “incapable”).

Advance Instruction: Additional Information

Who to contact in case of MH crisis.What may cause MH crisis.What may help client to avoid

hospitalization.How client generally reacts to

hospitalization.Other instructions.

Effect on Possible Involuntary Commitment

Does not limit any authority related to involuntary commitment laws.

Making an Advance Instruction

Any adult “of sound mind” can make.Signed in presence of two witnesses:

Not a relative. Not attending MD or mental health provider or

other staff. Not staff of a health care facility in which the

client is a patient.Notarized.Present to attending physician and other MH

treatment providers.

What To Do With Advance Instruction

Must make a part of medical record.Must act in accordance with AI when

client is determined to be “incapable”.May notify all other providers to

follow AI.

“Incapable” Definition

“…in the opinion of a physician or eligible psychologist the person currently lacks sufficient understanding or capacity to make and communicate mental health treatment decisions.” G.S. 122C-72

Advance Instruction Is Not Binding If:

AI conflicts with: “Generally accepted community practice

standards.” Treatments requested are infeasible or

unavailable. Conflicts with emergency treatment needs. Conflicts with applicable law.

NOTE: Involuntary commitment generally over-rides an AI.

When AI Is Not Followed:

If one part of an Advance Instruction cannot be carried out, does not negate responsibility to carry out other parts.

Must notify client or HCA (if applicable) and document notification and reason for not complying.

The Advance Instruction Can Be Revoked:

At any time the client is capable.In “any manner by which the client is able

to communicate intent to providers.”Must be documented in medical record.

Health Care Power of Attorney (HCPA)

Permits an individual to appoint a surrogate decision maker (health care agent) to make treatment decisions when client is incapable.

Can be combined with Advance Instruction.

Any capable adult may execute.

Who Can Be Health Care Agent (HCA)?

Any competent adult 18 or older.Cannot be providing healthcare to client.Client can name successive HCAs.

When Does HCA Authority Arise?

When client determined “incapable” and continues during period of incapacity.

Determined by physician or eligible psychologist designated in HCPA.

If unavailable, client’s attending physician or eligible psychologist determines.

Determination must be in writing.

What Can HCA Do?

Make treatment decisions to same extent client could if client did not lack decisional capacity, unless the client limits the authority of the HCA. HCA’s authority can be limited to making only MH

decisions. Client can instruct HCA on medications, ECT, hospital

admission, other. HCA must act how HCA believes client would act if

capable.

What Can HCA Do?

Must act consistent with any statements expressed in AI, if one exists.

Can discuss and review treatment information.

Can employ or discharge providers.Can consent/refuse admission to treatment

facility.Can consent/refuse medications and ECT.

How to Designate a HCA

HCPA form.Signed in presence of 2 witnesses who cannot be:

Related to client. Attending MD or staff. Employee of health facility where client resides. Entitled to any portion of client’s estate.

Notarized.Present to attending MD or MH provider for

medical record.

How to Revoke a HCPA

At any time client is capable of making and communicating health care decisions.

In any manner the client is able to communicate an intent to revoke.

Effective only upon communication by client to: Each HCA. Attending MD or eligible psychologist.

Document in medical record.

Confidentiality and Health Care Agent

When client incapable, HCA has access to and may consent to disclosure of confidential information. Exception: information protected by

42 CFR 2.

Confidentiality and Advance Instructions

New G.S. 122C-55(e2) “A responsible professional may disclose an advance instruction for MH treatment or confidential information from an advance instruction to a MD, psychologist or other qualified professional when the responsible professional determines that disclosure is necessary to give effect to or provide treatment in accordance with the advance instruction.” Exception: information protected by 42 CFR

2.

Informing Clients About Advance Directives

Hospitals must comply with PSDA: Provide written info to patient about right to formulate

advance directives. Document in the patient record whether patient has

executed an advance directive. Develop written policies and procedures to ensure

compliance with state law. Provide staff education and community outreach.

Area authorities must include information about Advance Instruction in written summary of client rights.

When Receiving AI or HCPA

Designate who has Advance Directive: On chart. Master list for crisis professionals.

Inform all relevant professionals.

Acting on Advance Directive

Determining “incapable”: Evaluation by MD or licensed psychologist. Documentation.

Contact HCA and others designated on AI.Contact relevant providers: community and

hospital.Treat client in accordance with instructions in AI,

or instructions of HCA.

When Cannot Implement Advance Instruction

Can you follow part?Consult with client and HCA.Document reasons and consultation in

medical record.Inform all relevant professionals.

When Advance Instruction Revoked

Document in medical record.Notify all relevant providers and systems.

Case Report

JR is a 28 yr. old single WM with 8 yr. history of schizophrenia, with one prior hospitalization, now petitioned by his parents for exacerbation of psychosis.

Had executed an Advance Directive (AD)1 yr. ago during an evangelical religious retreat, witnessed by a lay minister.

Parents unsure whether advanced directive could be invoked, so proceeded to commitment with hope of revisiting issue of AD once patient was hospitalized.

HPI

Functioning in community, holding a job with a technology company as a computer specialist for the past two years.

Discontinued olanzapine several weeks ago due in part to excessive weight gain.

Has become increasingly isolative, withdrawn and paranoid. Increased religious rituals such as praying constantly for several hours on his

knees. Grandiose delusions that he is a messenger from God with prophetic powers. Refusing all but liquids. Refusing medications. Auditory hallucinations of two voices giving running commentary on his

behaviors. One voice directed him to “scarify himself” and he cut his wrist and arms. Loss of insight concerning his illness.

Past Psychiatry History

One prior involuntary hospitalization at initial onset of illness when 20 yrs. old and a sophomore in college.

Found the experience dehumanizing and believes was a form of religious persecution.

No history of violent or dangerous behaviors or prior suicide attempts or self injury.

No history of substance abuse. Medication trials on prolixin (oral) and perphenazine. Developed EPS with prolixin (parkinsonian symptoms). Recently developed facial tic while on perphenazine, resolved with change to

olanzapine. 40 lbs. weight gain over past six months on olanzapine. Has never had complete resolution of hyper-religious focus or hallucinations. Limited insight into illness, although one year ago executed an advance directive.

Past Medical History

Medications: Olanzapine 20 mg qhs for past 6 months.

FH: Negative for mental illness, developmental disabilities or substance

abuse. Parents with college education; father is a professor of economics

at local university.

SH: College graduate; also obtained master’s degree in computer

science. Had moved into his own apartment several weeks ago about the

time he also began to discontinue his medication.

Advance Directive

Legally executed advance directive included the following: Requests no involuntary hospitalization. Requests treatment only with a Christian psychiatrist. Requests no forced medications. Requests no treatment with prolixin or perphenazine but

would like treatment with chemically related drug if shown to be safe and effective in long-term clinical use.

Selected his mother as a proxy decision-maker if determined to be incapable.

Informed Directives?

1) Did the patient create the PAD while capable?

2) Is the PAD informed by present knowledge of risks and benefits?

3) Is a schizophrenic patient, who never achieved full remission, capable of making an informed reasoned judgement?

4) Was the patient adequately educated about the pros and cons of treatment, and the likelihood that the treatment can be carried out?

5) Was the surrogate decision maker adequately involved in the preparation of the PAD?

Informed Directives?

6) Was the patient coerced during the preparation of the PAD?

7) Is it possible that since the PAD was legalized, the patient changed their mind for reasons unrelated to delusional beliefs?

Ethical Dilemmas

What is the “authentic voice” of JR? What represents his true wishes?Is it ethical to force the wishes of a

“prior self” on the “current self”? (Ulysses contract)

When is it ethically appropriate to force treatment against the patient’s wishes?

Is it feasible to carry out the PAD?

1) Can specific medication requests be honored?

2) Are the patient’s requests in the patient’s best interest medically?

3) Is there enough detailed instruction so that the patient’s request can be honored?

4) Are there adequate financial and medical resources available so that the requests can be instituted?

5) Is the surrogate decision-maker available?

6) Is there evidence that the patient’s preference for outpatient care has failed?

Will carrying out the treatment plan in light of PAD serve to foster patient cooperation or further damage the patient’s trust in health care providers?

Ways To Improve Usefulness of PADS

Patients should participate in the actual writing of the PAD, with their MD’s guidance, tailored to the patient’s specific situation.

PADs should be updated regularly, especially after crisis periods.

Family members should be involved as much as possible.

Patients without family members should be assisted in finding suitable advocates/surrogate family member.