Psychiatric Advance Directive templates provided courtesy of the Bazelon Center for Mental Health Law.
Parity for mental illness, disparity for the mental patient.
(Department of Ethics)
The Lancet, Oct 10, 1998 p1213(1).
Author: Thomas Szasz
Abstract: A psychiatric will, much like a living will, would
provide patients with the affirmative right to refuse mental health
care in the event they are determined to need it. Such a document
would allow a mentally competent person to state any limits they
would like to place on their mental health care in the event of their
incapacity. People covered by a psychiatric will which denied
permission for mental health intervention could live independently,
protected from unwanted care. Unless they commit a crime, the
mentally ill could then control their destiny.
Subjects: Mental health law - Interpretation and construction
Living
wills - Usage
Locations: United States
The core concept of mental illness -- to which the vast majority of
psychiatrists and the public adhere -- is that diseases of the mind
are diseases of the brain; in other words, that mental diseases and
brain diseases are the same kinds of diseases.1 It is now widely
accepted that "the overwhelming weight of medical research has
demonstrated that mental illnesses are biologically based".2 The
equating of mental disease with brain disease, supported by the
authority of a large body of neuroscience literature, is used to
rationalise the drug treatment of mental illness and justify the
demand for parity in insurance coverage for medical and mental disorders.
Reflecting the influence of these ideas and their implications, on
Sept 26, 1997, President Clinton signed the Mental Health Parity Act
of 1996 (PL 104-204), which took effect on Jan 1, 1998.). "This
landmark law", according to the National Alliance for the
Mentally Ill (NAMI), "begins the process of ending the long-held
practice of providing less insurance coverage for mental illnesses,
or brain disorders, than is provided for equally serious physical
disorders". (See the NAMI website -- http://www.nami.org.)
Many states have enacted similar legislation.2 Congress enacted, 7
years earlier, the Patient Self-Determination Act, another important
piece of legislation with potentially far-reaching implications for
mental patients.
It has apparently gone unnoticed that the rhetoric of parity in
insurance status for patients with medical or mental illness is
inconsistent with the reality of disparity in their legal status.
This disparity is usually justified on the ground that medical
diseases, unlike mental diseases, are unlikely to impair the
patient's competence to elect or reject treatment. Patients with
sarcoma are assumed to remain in possession of their mental
faculties, but patients with schizophrenia are not. Thus, medical
patients are treated as contracting moral agents, and medical
hospitals and physicians are never accused of imprisoning them.
Mental patients, however, are commonly treated as if they are minors
or unconscious, and mental hospitals and psychiatrists are often
accused of imprisoning them.3
Note that the truth or falsity of the claim that mental diseases are
brain diseases is largely irrelevant to the disparity in legal status
between the patient with psychiatric illness and the patient with
neurological illness. Before World War II, when neurosyphilis was
still common, most patients with paresis (general paralysis of the
insane) -- unlike most patients with other neurological ailments,
such as Parkinsonism and multiple sclerosis -- were confined in
mental hospitals against their will. There was a good reason for this
policy. Patients with paresis, like other, "insane" people,
commonly exhibited "disordered", thoughts, feelings, and
behaviours, whereas most patients with other brain diseases did not.
In short, mental patients (the "mad" or "insane")
were confined against their will primarily because they misbehaved,
not because they were sick. This continues to be the case.
The contention that confining people against their will is an
accepted part of the mental hospital's social function is starkly
illustrated by the 1997 Supreme Court ruling in Kansas v Leroy
Hendricks (No 95-1649) upholding a law that "states have a right
to use psychiatric hospitals to confine certain sex offenders once
they have completed their prison terms, even if those offenders do
not meet mental illness commitment criteria".4,5 Despite the
characterisation of this ruling as an "abuse" of the mental
health system by Psychiatric News, the American Psychiatric
Association's official newspaper,6 traditional social-psychiatric
custom leads directly to such abuses. As the diagnosis of bodily
illness justifies a physician's admission of a willing patient to the
hospital, so the diagnosis of mental illness justifies a judge's (and
a psychiatrist's) admission of an unwilling patient to a mental
hospital. Failure to acknowledge this fact precludes genuine reforms
in psychiatric policy.
The Patient Self-Determination Act makes it mandatory for healthcare
providers receiving Medicare or Medicaid payments to "inform
patients of their existing rights under state law to refuse treatment
and prepare advance directives".7 The Act requires healthcare
providers in hospitals and other healthcare settings:
* To develop written policies concerning advance directives;
* To ask all new patients whether they have prepared an advance directive and to include this information in the patient's chart;
* To give' patients written materials describing the facility's policies on advance directives and the patient's right (under applicable state law) to prepare such a document; and
* To educate staff and the community about advance directives.8
The mandate of the Act reflects the US political commitment to the
value of the patient's autonomy as an integral part of the right to
personal liberty. Although nothing in the Act suggests that the term
"patient" does not include those treated by psychiatrists,
prevailing mental health practices clearly fail to comply with the
mandates -- for example, involuntary psychiatric hospitalisation, and
involuntary drug treatment of mental patients living in psychiatric
facilities as well as the community.
The treatment of people without their consent, and even against their
will, happens far more often with mental patients than with medical
patients. Rare but dramatic dilemmas of involuntary treatment
involving patients on life support such as the much-publicised case
of Nancy Cruzan,9 capture the interest of the public. Most people can
imagine themselves on life support against their will. By contrast,
routine cases of involuntary treatment -- typically involving the
admission to hospital of people who disturb the peace -- appear
uncontroversial and hold little interest for the public. Most people
either cannot see themselves in such a predicament or believe that,
in such a situation, medical judgment ought to over-ride the
patient's choice. These reactions reflect the intuitive
understanding, albeit unarticulated, experienced by most people who
feel that there really is a difference between medical and mental disease.
I hope that the increasing emphasis on patient responsibility and
self-determination in medicine will have a knock-on effect on patient
responsibility and self-determination in psychiatry. Indeed, I
believe that the so-called medical model of mental illness holds out
more promise for clarifying the mental patients' legal status than
for understanding their malady. In any case, we have to confront the
marked disparity in legal status between these two kinds of patients.
The evidence that psychiatric practices fail to conform to the
requirements of the Patient Self-Determination Act is so abundant
that the assertion hardly requires documentation. A single example
should suffice. Investigators studied about 350 admissions to three
acute psychiatric inpatient units in Virginia. 45 of the patients
tried to refuse treatment. None succeeded: "Psychiatrists
exercised their discretion to promptly treat all patients who refused
treatment. Nonetheless, these patients suffered more morbidity than
compliant patients. This study suggests that the negative sequelae of
an inhospital treatment refusal cannot be eliminated by rapid
treatment".l0 The investigators candidly acknowledge that
"refusers were prescribed higher doses of antipsychotic
medications than were compliant patients". Patients who refused
treatment, according to this study, "had negative attitudes
toward past, present, and future treatment at the time of
admission"; it was felt that such attitudes may be
"generated by prior coercive treatment".
The dilemmas that mental patients pose for themselves, their
families, and society can be resolved if the familiar advance
directive or "living will" is adapted to the circumstances
of psychiatric patients and their carers. I proposed such an advance
psychiatric directive -- or, as I called it, "psychiatric
will" -- in 1982, crafting it especially for the needs of mental
patients who face the prospect of future involuntary treatment.11 The
intent of the directive was to transcend the problems created by
psychiatric crises or emergencies -- situations in which the
patients' involuntary treatment is justified by their being deemed
dangerous to themselves or others.
Modelled on the last will that comes into force after death, the
psychiatric will becomes operative only after the person's legal
status has undergone the change he or she anticipates. As the last
will becomes effective only after the testator is officially declared
dead, the psychiatric will would become effective only after the
person was officially declared a mental patient (dangerous to himself
or others). Executing such document would be of special interest to
individuals who have undergone an episode of involuntary psychiatric
treatment; they would have first-hand experience of the interventions
they might want to request or reject in the future, should they be
deemed to require psychiatric care. Like the last will, the
psychiatric will would be valid only if executed by people considered
legally competent at the time of its signing. This criterion is met,
by definition, by individuals who have been discharged from
psychiatric hospitals, because they are deemed capable of living on
their own. Generally, mental patients not declared legally
incompetent are covered because, in the USA, adults are presumed to
be competent until declared incompetent, just as defendants are
presumed to be innocent until proven guilty. So far, the idea of a
psychiatric will has aroused more interest in Europe, especially
Germany, than it has in the USA.
Some may object that if people who are committable by current
criteria were left at liberty, because that is what they requested in
their psychiatric will, they might harm themselves or others,
imposing financial and personal costs on families, insurance
companies, or the government. Although this is true, involuntary
psychiatric interventions also entail significant financial and
personal costs, and it is not at all clear which option would be the
costliest in the long run. In any case, in Anglo-American political
philosophy, there is not supposed to be a price on the freedom of the
individual. As for the possibility of such people harming others,
their psychiatric will deals with this contingency by requesting that
their "treatment" consist of the punishment prescribed by
law for their particular offence.
Another objection, also stemming from the fear of the mental
patient's dangerousness, might run like this. When a medically ill
person -- such as one with a progressive brain tumour -- loses his
"mind", it is reasonable to respect, his advance request
that he be given no further treatment since his choice harms only
himself. However, when a mentally ill person, such as one with
schizophrenia, loses his "mind", many people feel it is
unreasonable to respect his advance request that he be given no
further treatment because his choice may harm others as well. This
misgiving is intrinsic to our concept of mental illness. We do not
know, however, whether so-called mental patients would commit more or
less violence against others if those who elect to be punished for
legal transgression were to be "treated" by the legal
sanctions they prefer rather than by the psychiatric sanctions they reject.
Curiously, writers on advance directives rarely consider the
situation of psychiatric patients; when they do consider it, it is to
promote the patients' consent to treatment rather than to protect
their right to refuse it. For example, a recent treatise by an
attorney on the mental patient's right to refuse treatment makes no
reference to the Patient Self-Determination Act or to the psychiatric
will. The attorney takes the view that when the psychiatrist's
decision is to treat, the patient's refusal is suspect: "When
the objection is to a therapeutic intervention -- hospitalization or
conventional treatment -- recommended by the patient's therapists,
there also may be reason to at least question whether the refusal of
such treatment might be antitherapeutic and inconsistent with their
welfare".12 He goes on to say that the use of such instruments
by mental patients may be "therapeutically advantageous".
Such prejudgment destroys the usefulness of the advance directive as
a device for protecting the mental patient's right to
self-determination. In psychiatry, unlike in other medical
specialties, tradition sanctions the use of involuntary treatment.
Hence, the principal use of advanced directives in psychiatry must be
to help patients to avoid unwanted interventions. In a setting where
enlightened voices claim that patients diagnosed as mentally ill
ought to be treated like patients diagnosed as medically ill, and
where laws guarantee "parity" with respect to insurance
coverage, differential treatment of the two groups with respect to
their right to refuse treatment is particularly troubling. We must
beware lest these latest efforts at psychiatric reform result in
greater parity between psychiatric and non-psychiatric physicians,
but greater disparity between psychiatric and non-psychiatric patients.
Adoption of an advance mental-health directive or psychiatric will
would help patients, physicians, and lawyers alike to cut
psychiatry's Gordian knot -- namely, the conflation of (mental)
illness and (legal) incompetence. The Patient Self-Determination Act
requires that the law afford the same rights to accept or reject
treatment to the competent medical patient and to the competent
(ex)mental patient. The psychiatric will, supported by the proper
application of the Act to psychiatry, would thus protect mental
patients from involuntary treatment in the event that, at some future
time, they are deemed to be in need of such treatment, but, because
of (mental) illness, are thought to be unable to make sound decisions
about their own welfare. (If such persons break the law, they ought
to be charged with a crime and tried for it; if not, they ought to be
left alone.) Psychiatric practice would then conform to the
requirements of the Act, and Americans, as patients as well as
citizens, would be guaranteed equal protection under the law.
I thank Alice Michtom and Roger Yanow for their help in the
preparation of this paper.
References
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3. Associated Press. Psychiatric hospital accused of holding patients
captive in Fla. Arizona Republic, Dec 14, 1996: A9.
4. Anon. Excerpts from opinions on status of sex offenders. New York
Times, June 24, 1997: B11.
5. Collins J. Throwing away the key. Time, July 7, 1997: 29.
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12.Winick BJ. The right to refuse mental health treatment.
Washington, DC: American Psychological Association, 1997: 398-99.
SUNY Health Science Center, 750 East Adams Street, Syracuse, NY
13210, USA (Prof T Szasz MD) (e-mail: tszasz@aol.com)
COPYRIGHT 1998 Lancet Ltd.
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