Summarize either the Applebaum or Pouncey and Lukens article. Based on ethical theories we have considered this semester, state whether there is factual evidence in the author(s)’ claims about mental

However, mental health profes- sionals have always been concerned that advance directives could also be used in a less collaborative way. One of the earliest proponents of advance directives, Thomas Szasz—a fierce critic of psychiatric diagnosis and treatment—suggested that people with mental disorders use advance di- rectives to preclude future treatment, especially treatment with medica- tions (4). As Szasz saw it, if advance directives represented the unalter- able choices of competent patients, there would be no way to override the preferences embodied in the direc- tives. This suggestion raised theprospect of a class of patients who would be permanently untreatable, even if they later became psychotic and were hospitalized involuntarily.

Now, in the wake of a decision by the U.S. Court of Appeals for the Second Circuit, that prospect seems closer to materializing.

The case, Hargrave v. Vermont, grew out of a complaint filed in 1999 on behalf of Nancy Hargrave, a woman with a history of paranoid schizophrenia and multiple admis- sions to the Vermont State Hospital (5). Hargrave had completed an ad- vance directive—known in Vermont as a “durable power of attorney for health care,” or DPOA—in which she designated a substitute decision mak- er in case she lost competence and in which she refused “any and all anti- psychotic, neuroleptic, psychotropic, or psychoactive medications.” The major national law firm that repre- sented Hargrave immediately filed suit to block the state of Vermont from overriding her advance directive should she ever again be involuntarily committed and obtained certification to represent the entire class of pa- tients in similar situations.

Hargrave’s target was Act 114, a 1998 Vermont statute that attempted to address the dilemma inherent in psychiatric advance directives. Al- though advance directives were in- tended to facilitate patients’ partici- pation in treatment decisions, they have, as noted, the potential to pre- vent all treatment, even of patients who are ill enough to qualify for civil commitment under the prevailing dangerousness standards. To mitigate this prospect, the Vermont legislature allowed hospital (or prison) staff to petition a court for permission to treat an incompetent involuntarily committed patient, notwithstanding an advance directive to the contrary.

Before the court could authorize non- consensual administration of medica- tion, it had to allow the terms of the patient’s advance directive to be im- plemented for 45 days. So a patient like Hargrave, who had declined all medications, would be permitted to go unmedicated for a 45-day period, after which the court could supercede the patient’s refusal of treatment.

The core of Hargrave’s challenge to the statute was based on Title II of the Americans With Disabilities Act (ADA), which requires that “no qual- ified individual with a disability shall, by reason of such disability, be ex- cluded from participation in or be de- nied the benefits of the services, pro- grams, or activities of a public entity, or be subjected to discrimination by any such entity” (6). Hargrave claimed that she and other members of her class were being discriminated against on the basis of mental disor- der, given that only committed per- sons with mental illness could have their advance directives overridden under Act 114. And the public “serv- ices, programs, or activities” from which she was being excluded was the state’s durable power of attorney for health care itself.

In response, the state of Vermont offered three arguments. First, be- cause Hargrave had been involuntari- ly committed, Vermont claimed that she qualified under an exclusion to the ADA for persons who pose a “di- rect threat.” Next, the state contend- ed that the plaintiff was not being dis- criminated against on the basis of dis- ability, because anyone who complet- ed an advance directive was suscepti- ble to having his or her choices su- perceded (the state has an alterna- tive override mechanism that in- volves judicial appointment of a Psychiatric Advance Directives and the Treatment of Committed Patients P Pa au ul l S S.

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Dr. Appelbaum, who is editor of this col- umn, is A. F. Zeleznik distinguished pro- fessor and chair in the department of psy- chiatry at the University of Massachusetts Medical School, 55 Lake Avenue North, Worcester, Massachusetts 01655 (e-mail, [email protected]).

L La aw w & & P Ps sy yc ch hi ia at tr ry y guardian), and in any event, it was the status of being civilly committed, not being mentally ill, that was the point of distinction here. Finally, Vermont looked to a federal regula- tory provision that allows a public entity to continue existing practices, despite an ADA challenge, if the change being called for would “fun- damentally alter the nature of the service, program, or activity” (7).

The Second Circuit, like the U.S.

District Court that had originally heard the case, failed to find any of these contentions persuasive. With regard to the claim that Hargrave and other involuntarily committed pa- tients constitute a direct threat, the three-judge panel noted that not all committed patients would be a threat to others, as required under the ADA, because many were hospital- ized for danger to self. Even persons who were found to be dangerous to others at the time of commitment, the court held, could not be pre- sumed still to be dangerous when override of their advance directives was sought. The court was similarly unpersuaded that some condition other than mental illness was the ba- sis for the differential treatment, giv- en that Act 114 applied only to per- sons with mental illness. And allow- ing advance directives to stand as written, the court decided, even when patients were committed, does not fundamentally alter the advance directive statute (although it might affect the provision of psychiatric treatment to involuntary patients), which the court held was the proper point of reference. Hence the court concluded that Act 114 violated the ADA and enjoined its enforcement.

Hargrave,then, stands for the proposition that the state, having es- tablished a statutory basis for medical advance directives, cannot exclude in- voluntarily committed psychiatric pa- tients from its coverage. Although the Second Circuit’s opinion applies di- rectly only to Vermont and New York, it is an influential court, and its opin- ion may well be echoed in other cir- cuits around the country. Advance di- rectives may now constitute an iron- clad bulwark against future involun- tary treatment with medication—ex- cept in emergencies—even for in-competent, committed patients and even when the alternative is long- term institutional care.

In many respects, Hargraverepre- sents a continuation of the battle over the right of psychiatric patients to re- fuse treatment that began in the 1970s.

Indeed, the list of amici who filed briefs in support of Hargravereflected the coalitions that were formed to push for a right to refuse treatment 30 years ago. But that battle ended ambiguous- ly. Although some states were com- pelled by the courts to permit even committed patients to refuse medica- tion unless they were found incompe- tent by a judge, other states still allow the treating physician—sometimes af- ter a second opinion has been ob- tained—or a panel of clinicians to over- ride refusal on clinical grounds (8).

Even in states that require findings of incompetence and substituted judg- ment as to whether the patient, if com- petent, would have accepted the treat- ment, the vast majority (typically more than 90 percent) of cases that are adju- dicated end with the court authorizing involuntary treatment with medication.

The sense of many experienced ob- servers is that when patients are psy- chotic and treatment seems clearly in- dicated, the courts find a way to justify administration of medication, some- times despite the legal criteria (8).

If adopted more widely, however, Hargravewould appear to provide a tool whereby patients who are deter- mined to avoid treatment with med- ications would be able (except in emergencies) to completely preclude such treatment. A reviewing court would be bound to honor the terms of the now-incompetent patient’s ad- vance directive and order that treat- ment be withheld. Judges or quasi-ju- dicial decision makers would no longer have the discretion to apply “common-sense” criteria—for exam- ple, that patients with flagrant psy- chosis should be treated if possible— to mandate medication. Today, few severely ill committed patients avoid treatment with medications, regard- less of the legal standard in their ju- risdiction. Hargravecould change that. If large numbers of patients were to complete advance directives such as Nancy Hargrave’s, declining all medication, hospitals might wellbegin to fill with patients whom they could neither treat nor discharge.

Are there legal mechanisms that could avoid this outcome without run- ning afoul of the ADA? In the Har- gravecase, the court itself noted that nothing in this decision precludes statutory revisions that do not single out persons who are disabled because of mental illness—for example, revi- sions that increase the competency threshold for executing a DPOA or that allow the override of the DPOA of any incompetent person whenever compliance with the DPOA would substantially burden the interests of the state. However, it is doubtful that raising the competence threshold would have much impact, and the court’s suggestion regarding “interests of the state” that might warrant over- riding any person’s advance directive is, frankly, enigmatic.

But perhaps a clever legislator can find an opening here to blunt the im- pact of the decision. And there is no guarantee that other circuits, or even ultimately the U.S. Supreme Court, would necessarily agree with the Sec- ond Circuit’s analysis. Of course, were the level of concern sufficient, it would always be possible for Con- gress to amend the ADA to exclude the class of persons at issue. Con- gress, though, is typically reluctant to tinker with major legislation, and the disability rights community would likely oppose firmly any amendment of the ADA.

Because the ultimate scope and im- pact of Hargravemay not be known until a decade from now, it is worth- while to consider the possible effect of the decision on the use of advance directives for psychiatric treatment.

Current research suggests that most patients who complete advance direc- tives do not use these directives to de- cline all treatment with medication but rather to indicate preferences among alternative treatments or to in- form future treaters of particular con- cerns—for example, the care of their pets while they are hospitalized. Al- though Hargravemay stoke some en- thusiasm for advance directives among patients who are opposed to receiving any medication, it remains PSYCHIATRIC SERVICES ♦http://ps.psychiatryonline.org ♦July 2004 Vol. 55 No. 7 7 75 52 2 Continues on page 763 PSYCHIATRIC SERVICES ♦http://ps.psychiatryonline.org ♦July 2004 Vol. 55 No. 7 7 76 63 3 LAW & PSYCHIATRY Continued from page 752 to be seen how common the phenom- enon will become. Studies now under way will tell us more about the utility of advance directives in psychiatry— for example, whether, given the cur- rent state of the mental health sys- tem, advance directives actually have an impact on subsequent care (9). At a minimum, however, it seems likely that Hargrave,as it becomes more widely known, will chill enthusiasm for psychiatric advance directives among many clinicians. Because clini- cians’ suggestions that patients con- sider completing advance directives probably play an important role in en- couraging the completion of such di- rectives (10), Hargrave’s legacy may be to inhibit the use of this once- promising tool. ♦ References 1. Appelbaum PS: Advance directives for psy- chiatric treatment. Hospital and Communi- ty Psychiatry 42:983–984, 1991 2. Srebnik DS, LaFond J: Advance directives for mental health treatment. Psychiatric Services 50:919–925, 1999 3. Swanson JW, Tepper MC, Backlar P, et al:

Psychiatric advance directives: an alterna- tive to coercive treatment? Psychiatry 63:160–177, 2000 4. Szasz T: The psychiatric will: a new mecha- nism for protecting persons against “psy- chosis” and psychiatry. American Psycholo- gist 37:762–770, 1982 5. Hargrave v Vermont, 340 F. 3d 27 (2nd Cir 2003) 6. Americans With Disabilities Act, United States Code, Title 42, Section 12132 7. Code of Federal Regulations, Title 28, Sec- tion 35.130 (b)(7) 8. Appelbaum PS: Almost a Revolution: Men- tal Health Law and the Limits of Change.

New York, Oxford University Press, 1994 9. Papageorgiou A, King M, Janmohamed A, et al: Advance directives for patients com- pulsorily admitted to hospital with serious mental illness: randomised controlled trial.

British Journal of Psychiatry 181:513–519, 2002 10. Srebnik DS, Russo J, Sage J, et al: Interest in psychiatric advance directives among high users of crisis services and hospitaliza- tion. Psychiatric Services 54:981–986, 2003