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 decisionmaking 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 overrides 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.