Welcome to Ethics Consult -- an opportunity to discuss, debate (respectfully), and learn together. We select an ethical dilemma from a true, but anonymized, patient care case, and then we provide an expert's commentary.
Last week, you voted on whether a psychiatric patient should be forcibly medicated despite their psychiatric advance directive instructing not to.
Should the court honor Carolina's document?
Yes: 68%
No: 32%
Should doctors be allowed to medicate her?
Yes: 38%
No: 62%
And now, bioethicist Jacob M. Appel, MD, JD, weighs in.
Advance directives (ADs) for medical decision-making, first proposed by Amnesty International cofounder Luis Kutner in 1969, have become a staple of modern healthcare. California became the first state to authorize such documents in 1976; today, every state has such a statute. In the Patient Self-Determination Act of 1990, Congress required hospitals to educate patients on ADs. These documents, which often take the form of living wills, specify how patients wish their medical care to be handled if they lose the capacity to make their own decisions.
More recently, mental health professionals have grappled with how to translate the principles underlying ADs -- patient autonomy and empowerment -- into the psychiatric setting. As of 2018, a majority of states have statutes authorizing psychiatric advance directives (PADs) in some form or another.
Yet PADs are underutilized. According to psychologist Heather Zelle, JD, PhD, and her colleagues, writing in , "Surveys of mental health consumers have found that 66%−77% of consumers would complete a psychiatric advance directive if given the opportunity and assistance; however, only 4%−13% actually have completed one." In most jurisdictions, PADs are not binding; unlike medical ADs, they merely guide care and can be overridden by psychiatrists or courts.
The judge in Carolina's case is being asked to decide whether her PAD should be legally binding. Documents that are binding in the future, even if the person creating the document attempts to change her mind, are often called "Ulysses contracts" after the hero of Homer's Odyssey. In the Greek epic, Odysseus (a.k.a. Ulysses) has himself bound to his ship's mast, so that he can hear the music of the mythical beauties the Sirens, and commands his crew not to release him -- even if he eventually begs them to do so. Similarly, Carolina wishes to be bound by a document she previously executed, even if she later wishes to revoke it.
One U.S. patient has already won a legal battle to have her PAD upheld under these circumstances. Nancy Hargrave, a women with paranoid schizophrenia hospitalized at the Vermont State Hospital, executed a durable power of attorney stating that she did not want non-emergency psychiatric medication. Her PAD was upheld by the U.S. Second Circuit Court of Appeals in 2003. The state did not appeal further.
Critics of binding PADs often argue that psychiatric patients may not appreciate the full effect of entering into a Ulysses contract and that their wishes may genuinely evolve. Yet Duke University psychiatry professor Jeffrey Swanson, PhD, and his colleagues that the rationale for PADs may be stronger than for ADs for general medical patients: "From the perspective of patients with a long history of psychiatric treatment, PADs may actually convey treatment preferences much more accurately than medical advance directives or living wills do, to the extent that such preferences are shaped by previous personal encounters with the health care interventions in question."
At the same time, psychiatric hospitalization is costly. A patient whose PAD rejects medication or electroconvulsive therapy but who cannot survive safely in the community without such treatments, is essentially asking the taxpayers to fund her indefinite confinement. With the mental health system perennially starved for resources, one wonders whether such an extreme effort to uphold patient autonomy -- no matter how well-intended -- is worth the tangible costs.
Jacob M. Appel, MD, JD, is director of ethics education in psychiatry and a member of the institutional review board at the Icahn School of Medicine at Mount Sinai in New York City. He holds an MD from Columbia University, a JD from Harvard Law School, and a bioethics MA from Albany Medical College.
And check out some of our past Ethics Consult cases:
Approve a Horn Implantation in Patient's Skull?
Is Doctor Liable for Withholding Patient's Diagnosis From Family?