Mental health advance directives for treatment, or MHADs, have received little attention in the legal system, including by the U.S. Supreme Court, but is a topic that is ripe for championing patient autonomy for people with severe mental illnesses. MHADs are documents created by clients while they are competent that direct their preferences for mental health treatment if they should become unable to make those decisions. Surprisingly, in American law, only one case, Hargrave v. Vermont, 2003, has ever addressed legal aspects of MHADs. However, psychologists and others have studied the implications of MHADs. Research suggests mental health consumers are enormously interested in getting assistance in creating such documents for themselves (Swanson et al., Journal of the American Academy of Psychiatry and the Law, 2006). Other studies demonstrate that helping people develop MHADs may boost their competence in making treatment decisions and increase the likelihood that their directives will be implemented.
Taken as a whole, this evidence should sound the clarion call for psychologists and other mental health professionals to become educated about this process and to take initiative in their respective jurisdictions for the benefit of the clients with whom they work.
However, the legal landscape remains tense, controversial and uncharted. In Hargrave, plaintiff Nancy Hargrave, diagnosed with paranoid schizophrenia and previously hospitalized several times, drafted a Durable Power of Attorney for her mental health care, Vermont's version of an MHAD. In that document, she expressed the choice to refuse "the administration of any and all anti-psychotic, neuroleptic, psychotropic or psychoactive medications, and electroconvulsive therapy." She then filed suit to prevent Vermont from overriding the document if she were ever to be involuntarily civilly committed in the future where there was a physician order to force medicate her. The district court found in her favor, citing violations of the ADA, Title II. On appeal, the Second Circuit affirmed.
Over a decade later, no litigation has surfaced following the Hargrave decision. A major problem is that the "groundswell of interest [in MHADs] largely precedes the development of a coherent body of governing law ... serious questions remain concerning the scope of their enforceability, particularly in the context of involuntary treatment" (Gallagher, Psychology, Public Policy and Law, 1998).
The legal concern is that patients will opt to refuse treatment, but the research does not support this conclusion. In fact, the opposite is substantiated: Clients in the mental health system in North Carolina who had drafted MHADs did not incorporate refusals of all medications and treatment. Almost all participants gave advance consent to at least one medication, and of the ones who refused a medication, most gave reasons for the refusal and discussed the side effects of the refused drugs (Swanson, Swartz et al., American Journal of Psychiatry, 2006).
Staggering rates of mental illness in the United States signal the need for solutions like MHADs, according to the National Institute of Mental Health.
Virginia is the first state to actively develop a comprehensive delivery system for creation of MHADs as part of their advance health-care directives (Zelle et al., Advance Directives for Mental Health Care: Innovation in Law, Policy, and Practice, 2015). Perhaps this model can be replicated across the United States and awaken this "sleeping tiger" for improved patient autonomy and service delivery for persons with severe mental illness.
"Judicial Notebook" is a project of APA Div. 9 (Society for the Psychological Study of Social Issues).
