02/29/2016 04:53 pm ET Updated Mar 01, 2017

Overprotection in Mental Health: Why Can't Psychiatric Patients Use Advanced Directives?

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Over time societies have become more interested and invested in protecting vulnerable populations. Even before governments took on a more active role, religious and social groups were heavily involved in helping those who couldn't help themselves. Some protections however, can become more like restrictions, and they may be more harmful than helpful.

As a psychiatrist, I spent half of my first year on medical floors, working under compassionate physicians who emphasized the importance of carefully explaining the risks and benefits of treatments to patients. On several occasions I helped patients with life threatening conditions plan for what type of treatment they would like if they became unable to make decisions on their own: whether they would like a machine to breathe for them or receive nutrition through a tube, for example. When written, this is called an advanced directive, a document that communicates a patient's wishes in the event that he or she is not able to decide for him or herself. I remember thinking to myself, "This would be a wonderful tool for psychiatric patients." If only it were so simple.

Medical and psychiatric patients have become separate, distinct populations in the eyes of medicine and the eyes of the law. The reason lies in how treatment refusal is handled in these different contexts. On a medical floor, if a doctor thinks that a patient refusing a treatment is not of "sound mind", or cannot make a rational (importantly, not necessarily a good) decision about their care, this refusal can be overridden by the patient's surrogate--,a spouse, child, or parent-- using "substituted judgment", which is a best guess as to what the patient would have chosen if they were able to make a rational decision. Advanced directives remove this guesswork; patients can use them to decide for themselves what treatments they would like in a given situation, and they can be used this way throughout the country.

Treatment refusal is not handled this way in psychiatric hospitals; until the 1960s, psychiatric patients were admitted to hospitals and provided treatment as determined by their physicians, who operated under the default assumption that these patients were unable to make rational decisions for themselves. Over the next decade, increasing public outrage over abuses and neglect in state psychiatric hospitals led to several challenges to this assumption and resulted in the restriction of involuntary hospitalization and treatment to situations where the patient was at imminent risk of harming himself or others, protections aimed at maximizing patients' autonomy. Some states specified that a judge, not a doctor, determine whether or not a patient is able to make a rational decision regarding his treatment.

Imagine a scenario where a patient with schizophrenia who has become acutely psychotic believes that the clinicians offering him antipsychotic medication are trying to poison him, and he refuses the medication. A court order is required for treatment over his objection. After several months of treatment, his psychosis abates and the patient now has insight into how he has been helped by medication and decides he would like to avoid this scenario in the future. The patient asks if there is a way he could be given an antipsychotic over his objection the next time he becomes psychotic and loses insight into his illness.

An advanced directive would allow this manner of planning, and seventeen states have specific laws guaranteeing patients' rights to create psychiatric advanced directives (PAD). However, twenty-seven states require a judge to first determine if patients are capable of making a rational decision about psychiatric medication and then determine if the PAD applies in the given situation. So while medical advanced directives are consulted as soon as a physician determines the patient cannot make a rational decision, in many states PADs cannot be consulted until after a judge deems the patient irrational and deems the PAD applicable. Waiting for a judge and a court hearing, increases the length of time the patient spends in the hospital without the treatment they requested when they were of "sound mind."

This is not to say that PADs don't have their caveats. What if patients use it to decline all forms of psychiatric treatment? This is one possible reason that PADs are uncommon despite patient advocacy organizations such as the National Alliance on Mental Illness (NAMI) strongly encouraging patients to create them. Several states have already addressed this by forbidding PADs that prohibit psychiatric hospitalization. Other states allow patients to prohibit specific medications, but not entire classes of psychotropics. These laws are an attempt to make PAD useful to patients without allowing them to be used to prevent patients who are suicidal or at risk of harming others from receiving appropriate psychiatric treatment.

The use of advanced directives is increasing in most medical settings as patient advocacy groups and physicians recognize their importance and educate patients about their use. We need federal legislation allowing all patients receiving psychiatric treatment to be able to create advanced directives to dictate their treatment in the event they are hospitalized, and allow these advanced directives to be used without a judge's approval. Psychiatrists should be encouraged to discuss PAD with their patients and think collaboratively about what treatments they would want in the event they became ill. It is time that psychiatric patients are given the rights that medical patients have to use advanced directives and decide their own care.