Making the most of psychiatric advance directives

Potential benefits, controversies, and why a team approach is best.

Few medical situations are as difficult as a psychiatric emergency. The fundamentals of providing quality care — talking about symptoms, reviewing medical history, making a diagnosis, prescribing treatment — may be impossible when a patient is delusional, psychotic, or otherwise incapacitated. Clinicians may find themselves wanting to elicit a patient's treatment preferences, but having to make quick decisions in order to provide emergency (and often lifesaving) care.

In theory, psychiatric advance directives provide a way to consider patient choice even during a medical crisis. These legal documents provide a mechanism for individuals to stipulate, in advance, what types of psychiatric treatments they prefer or to appoint a health care agent to make such decisions for them, should they become incapacitated.

The basics

Psychiatric advance directives evolved from more general advance care directives, but differ from them in two key ways. First, people filling out general health care directives are often making decisions about end-of-life treatments they have never actually experienced. In contrast, psychiatric patients are generally dealing with chronic illnesses and therefore are likely to have experience with the treatments they are describing. (A patient with schizophrenia, for example, may well have opinions about which antipsychotic is most effective and which ones have not worked in the past.) Second, the goal of a general advance care directive is usually to increase the chances that life ends in comfort and dignity; the goal of a psychiatric advance directive is often to maximize the chances of recovery, while minimizing unwanted interventions.

Psychiatric advance directives, like general advance care directives, are governed by state law. Currently 25 states have specific provisions regarding the creation of psychiatric advance directives. People living elsewhere can adapt their state's general advance care directives for use in psychiatric hospitals by designating a health care agent to make decisions for them if they become incapacitated.

Although state laws vary, psychiatric advance directives often consist of two types of documents. The first includes specific instructions and treatment preferences; the second appoints a health care agent. To create a valid psychiatric advance directive, a patient should obtain the applicable state forms and follow the instructions. All state forms are available online, free of charge, through the National Resource Center on Psychiatric Advance Directives.

Issues to consider

Although clinicians may worry that psychiatric advance directives will contain a laundry list of unreasonable demands, and patients may worry that their instructions will not be followed, preliminary studies suggest otherwise. One study involving 106 outpatients at a community mental health center found that 95% of the advance directives they prepared contained instructions that were reasonable and consistent with standard care. Another analysis of the same cohort, which examined how the psychiatric advance directives were actually used during 90 crisis situations, found that actual care was consistent with advance instructions 67% of the time.

Nevertheless, for psychiatric advance directives to be useful, people need to carefully consider the following issues.

Competence. To be valid, a psychiatric advance directive must be completed by an adult — as defined by state law — who is competent to make medical decisions. (Some states treat emancipated minors as adults.) The law assumes that a person is competent unless a court has determined otherwise. Therefore a person drafting a psychiatric advance directive is generally not required to have a clinical assessment of competency. However, if a dispute arises about the validity of a psychiatric advance directive, a person's competence may be questioned after the fact, so it may be useful to have a psychiatrist determine capacity ahead of time.

Incapacity. A psychiatric advance directive goes into effect when someone is deemed legally incapacitated and therefore unable to make treatment decisions. State laws define incapacity in different ways (and some do not define it). The determination is usually made by one or more clinicians, a judge, or some combination of professionals. Those considering using an advance directive should understand their state's legal definition of incapacity, who makes the determination, and what options patients have for challenging the decision.

Health care agents. Not all states require that a patient designate a health care agent, but in practical terms, this may determine whether the psychiatric advance directive is useful. No written document can anticipate every medical situation, and in some situations advance directives may be too vague to provide clinicians with the guidance they need. Appointing a health care agent therefore provides valuable flexibility.

The health care agent can be a friend, a relative, or a clinician who is not providing the patient's health care (this last proviso is to avoid any conflict of interest). Designating one or more "backup" agents is wise, in case the primary agent is unavailable when a psychiatric advance directive goes into effect. The health care agent is supposed to follow the instructions in a psychiatric advance directive and make decisions in keeping with the patient's values and preferences — so it's important that the patient find an agent who knows his or her preferences well enough and can be trusted with this responsibility.

Accessibility. The psychiatric advance directive is useful only if clinicians can access it during an emergency. A patient may want to file one copy with his or her medical record (at all relevant facilities) and distribute additional copies to members of the health care team, family, and friends. Electronic versions can be stored online, although a fee may apply, at the U.S. Living Will Registry. Some states also have online registries.

Some patients carry a copy of their psychiatric advance directive with them at all times, but a less cumbersome alternative is a wallet card alerting clinicians that a psychiatric advance directive exists and where to find it. The U.S. Living Will Registry provides an official registration card, but some patients make their own wallet cards.

Updates. Because patient preferences and treatment options change periodically, it's important to keep the psychiatric advance directive up to date. The easiest way to do this may be to have a reminder placed in the patient's medical record to review and update a directive periodically.

Key controversies

Two of the most controversial issues regarding psychiatric advance directives concern when clinicians can override these documents and when patients may revoke them.

Overriding a directive. Most state laws give clinicians broad discretion to override a psychiatric advance directive. The laws stipulate that clinicians may disregard advance treatment instructions when a patient is involuntarily committed to a facility, or when a patient's wishes are not feasible or conflict with the current standard of care. However, even in these circumstances, clinicians are expected to honor other preferences expressed in the psychiatric advance directive.

Only one federal court so far has ruled on the validity of overriding an advance directive for psychiatric care, in a case known as Hargrave v. State of Vermont. Because Vermont does not have a law specifically authorizing a psychiatric advance directive, patients there adapt general advance care directives. Nancy Hargrave, the plaintiff, was involuntarily medicated for a mental illness in spite of her wishes to the contrary, which she had stipulated in her durable power of attorney for health care.

At issue was whether the state of Vermont could enforce a law to override her directive and provide medication. At the time, state law allowed doctors to nullify advance care provisions related to psychiatric treatment, but not other sorts of medical treatment. The court decided this provision violated the Americans with Disabilities Act.

This case continues to generate debate, with clinicians worrying that they will be sued if they override a psychiatric advance directive. However, it's important to note that, at least for now, the Hargrave decision applies only in Vermont. In other states, the law generally allows doctors to override psychiatric advance directives when, in their clinical judgment, it is necessary to do so. But it is possible that other legal challenges will arise in the future.

Revoking a directive. A legally competent individual can revoke a psychiatric advance directive at any time. The controversy arises when a patient tries to revoke the document during a crisis. Some patients decide to insert a "Ulysses clause" into the directive, which explicitly states that its treatment directions should not be revoked during a period of incapacity. (The term recalls a strategy by the mythical hero Ulysses, who was so afraid he would fall under the spell of the beautiful music of the Sirens that he would sail his ship into the rocks of their island. He instructed his sailors to bind him to the mast and keep sailing straight, no matter how strongly he protested.)

Some clinicians view a Ulysses clause as a way to increase the chances that instructions given while a patient is competent are honored during a period of incapacity. But others believe these clauses place them in the unwelcome and ethically charged position of honoring choices a patient made in the past, while ignoring or overriding those a patient is currently expressing.

Team approach best

Studies indicate that patients are more likely to complete a psychiatric advance directive when they receive assistance in filling out the forms. In 2007, for example, investigators from Duke University reported that 61% of patients who worked with a facilitator completed a psychiatric advance directive or authorized a health care agent, compared with only 3% of those given instructions but left to complete the forms on their own. In separate analyses of the data, the researchers concluded that the intervention itself increased some patients' ability to actually fill out the forms or make treatment decisions — or what a lawyer might term their legal competence.

Legalities aside, most observers agree that in the ideal situation, both clinicians and patients will use psychiatric advance directives as a way to have a forthright discussion about treatment preferences in the event of an emergency. Filling out the document provides an opportunity for the patient and clinician to anticipate hard times, think things through, and talk openly — all of which enhance treatment. In this way, a psychiatric advance directive can help foster a therapeutic relationship that can accomplish more than any legal document ever could.

Srebnik DS, et al. "The Content and Clinical Utility of Psychiatric Advance Directives," Psychiatric Services (May 2005): Vol. 56, No. 5, pp. 592–98.

Swanson JW, et al. "Superseding Psychiatric Advance Directives: Ethical and Legal Considerations," Journal of the American Academy of Psychiatry and the Law (2006): Vol. 34, No. 3, pp. 385–94.

For more references, please see www.health.harvard.edu/mentalextra.