Advance Directives for Mental Health Treatment

What is an advance directive?

An advance directive is a legal document that tells what healthcare services you want to receive if an illness makes you unable to make decisions for yourself.

Everyone should be allowed to make the important decisions regarding their health care. Whether it is choosing to undergo a surgical procedure, take a certain medication, or receive life support, every individual should have the final say in how they are cared for. 

Advance directives empower patients during their treatment and recovery periods; open the lines of communication between patients, their loved ones, and treatment providers about the patient’s needs and concerns; and protect the patient from unwanted or harmful treatments, or treatments they know to be ineffective for them.

All fifty states have enacted laws allowing advance directives for general medical purposes, such as the wishes of individuals to be withdrawn from life support at a certain point.  While most states with advance directive laws either specifically or implicitly apply them to psychiatric illnesses, a dozen states have enacted psychiatric-specific advance directives. These laws empower individuals with mental illnesses, provided they are competent, to express their preferences for the acceptance or refusal of psychiatric treatment just as they are allowed to accept or refuse treatment for physical illness. 

States vary in their requirements for the determination of competence. While most state laws presume that a person is competent when he or she drafts advance directives, some states apply stricter standards when it comes to utilizing them in healthcare decisions.  In some states, for example, judges must make competence, or legal capacity, decisions before the advance directive can be followed.

Individuals have the right to two basic types of advance directives.

Individuals can specify their wishes regarding treatment or services through an instruction directive. This written document can include desired options to avoid or minimize hospitalization; preferred stress-relieving activities; emergency contacts; list of activities known to worsen symptoms; preferred or problematic medications; preferences in regard to the use of devices, such as Transcranial Magnetic Stimulation (TMS) or Electroconvulsive Therapy (ECT); and alternatives or preferences to the use of seclusion or restraint.

The second, a proxy or agent directive, establishes the individual’s wishes regarding treatment power-of-attorney or decision making authority.  In this option, individuals are urged to select an agent that understands the role and responsibilities, as well as the mental health system. An agent’s decisions are expected to reflect what the individual would have preferred. To promote this approach, some states require agents to apply a best interest standard, based on what the agent believes will best serve the patient’s needs.

Why are advance directives so important?

Like many of the nation’s mental health advocacy groups, DBSA believes that advance directives serve as a way to empower patients with a more active say in their own treatment.  However, DBSA also recognizes the concern among some that advance directives may be misused, either by allowing individuals who would otherwise choose treatment to avoid treatment when they are very ill, or by imposing treatment options patients otherwise would have opposed, but agreed to in a coercive situation.

Therefore, DBSA urges individuals who are considering the use of advance directives to consider the following precautions in order to both protect and empower the patient.

Consider

• In cases where an agent is being assigned decision making authority over care, use extreme diligence in selecting that person. Will the agent carry out your wishes? Does the individual understand the mental health care system well enough to make informed decisions?  Will the agent defend your preferences in the face of potential opposition from the health care provider?
• In the use of an instruction directive, be very specific in describing your preferences. State the names of those you wish to care for you.  Specify treatments and medications that both do and do not work to improve your symptoms. 
• If possible, consider retaining an attorney who will represent your interests before mental health care professionals who may believe they know better. Mental health patients deserve the same rights as patients being treated for physical illness.
• Understand your state laws. Each state will have slightly different requirements regarding your rights as a patient. Obtain a copy of your state’s particular law regarding advance directives or consult with your local community health center or state mental health agency.  Know your rights and obligations before you sign any legally binding document.

Advance directives are a very powerful tool for patients but are often overlooked. Creation of an advance directive is an important step in preventing unwanted treatment and giving patients the power they deserve.

DBSA asks that patients and those who are involved in their care (family, friends, healthcare providers, etc.) work together to promote the increased use of this highly effective initiative and the creation of psychiatric-specific advance directives in all fifty states.