Individuals who are mentally competent can create what is known as a psychiatric advance directive (PAD). Activated if they become incompetent, this legal document contains written instructions about psychiatric care and appoints an agent to ensure that the instructions are carried out, explained Lee Carty of the Bazelon Center for Mental Health Law in Washington, D.C.

There are now 14 states in which PADs are recognized. People creating such a document in those states should consult a person with legal expertise who can ensure that their PAD complies with state law. For those who live in states that have only advance directive (AD) statutes, a legal expert can help them create a document that complies with the state’s AD statutes by adding instructions about psychiatric treatment to an AD for health care or by modifying their psychiatric instructions to comply with state AD requirements, explained Carty. James Hilliard, J.D., general counsel to the Massachusetts Psychiatric Society and a faculty member of Harvard Medical School, noted that an agent appointed in a standard AD may make mental health decisions for the patient, unless the patient specified otherwise.

The problem with PADs and ADs with psychiatric provisions is that legal experts and psychiatrists are not exactly sure how the courts will view them. There is very little case law regarding ADs and even less regarding PADs or mental health provisions in ADs, said Robert J. Fleischner, an attorney for the Center for Public Representation, a protection and advocacy public interest law firm representing people with mental illness in Massachusetts.

"These documents are probably enforceable in most states," he said. "The question in some states is whether documents that instruct an agent to refuse a certain medication can be trumped by a court order to the contrary."

Despite this lack of legal certainty, there are many efforts to provide information about these documents. These efforts include those by the Bazelon Center for Mental Health Law and initiatives in the states of New York and Washington. Next year the Mental Health America plans to launch a nationwide initiative to help consumers complete their own PAD or AD with psychiatric provisions.

One reason for this interest is the Patient Self-Determination Act (PSDA), which was passed by the U.S. Congress in 1991.

"Basically, this act states that providers receiving Medicare and Medicaid [reimbursements] must inform patients of state law on ADs, ask if the patient has an AD, and inform them of their rights to complete an AD. There is no reason to believe that the PSDA does not apply equally to PADs or to ADs for health care with psychiatric provisions," explained Fleischner.

Experts agree that the documents offer many benefits. At Buffalo Psychiatric Center in Buffalo, N.Y., where a few patients with these documents have been admitted, clinical director Jeffrey Grace, M.D., found these documents to be "incredibly helpful because they give a better baseline history and specify which medicines the patient prefers."

In addition to requesting certain medications, people can include directives requesting hospitalization in certain situations, said Paul Sherman, Ph.D., a psychologist on the faculty of the University of Colorado. He pointed out, however, that health insurance companies may not necessarily approve payment.

Other potential benefits inherent in PADs and ADs for psychiatric care include permission for psychiatrists to contact family members, empowerment of consumers, and reduced hospitalization and crises, said Maggie Bennington-Davis, M.D., president of the Oregon Psychiatric Association and chair of its legislation committee.

With regard to legal benefits, these documents could help avoid court-ordered treatment and negate the need for lengthy court proceedings to appoint a guardian or approve intrusive treatment including involuntarily medicating patients, said Dennis Feld, J.D., and Hilliard, respectively. Feld is a deputy chief attorney for the New York State Mental Hygiene Legal Service.

Despite these benefits, these documents are not widely used, according to Debra Srebnik, Ph.D., an assistant professor of psychiatry and behavioral sciences at the University of Washington, and Ellen Harris, J.D., a staff attorney at the Bazelon Center for Mental Health Law. Some reasons: These documents are lengthy and complex, taking several hours to fill out, and they often require that patients recount the past as well as plan for the future. Also, many patients do not have an agent they can appoint to ensure that the document is followed (an agent is usually necessary for the document to be valid), and patients must consult with a person with legal expertise.

Another factor that may contribute to their limited use is that that some psychiatrists raise important questions about these documents. For example, Marc Graff, M.D., asked: "With the climate being so litigious, are psychiatrists putting themselves at any increased risk by following these documents? And what about the risk involved for those psychiatrists who have not received any training or education on these documents?" Graff is a partner physician in the Southern California Permanente Medical Group, part of Kaiser Permanente.

There were also questions regarding the content of these documents. What is the risk involved in following these documents without knowing the historical context behind patients’ directives?, asked Bennington-Davis. Moreover, information in these documents can quickly become outdated, pointed out Howard Zonana, M.D., a professor of psychiatry at Yale University and a corresponding member of APA’s Council on Psychiatry and Law.

And then there is the issue of medication. What should a psychiatrist do in the situation in which a delusional and paranoid patient refuses medication, but the patient’s PAD requests medication? Should the psychiatrist overlook the court system in favor of following the document? And would there be increased risk for doing so?, asked Bennington-Davis.

Other experts are concerned that these documents are being used to refuse medication. Zonana said that he and his colleagues have heard that in rare cases in which these documents are used, the patient refuses medication.

What would happen in a situation in which a psychiatrist requests to use medications that the patient has refused in these documents? According to Fleischner, "It will probably end up in court or whatever forum the state provides for involuntary medication orders. However, there isn’t any case that I know of that directly addresses whether a court order to take medication can trump a PAD or AD provision that refuses specific medication."

Not surprisingly, Zonana questioned the overall usefulness of these documents, "because psychiatrists end up in court anyway [when patients refuse medication], and because most patients don’t use them. I don’t think they are currently very useful other than to give some idea of what the patient may have wished at some point in time."

According to Fleischner, the vast majority of people who use these documents do indeed say they want medication and usually specify exactly what medication they want and don’t want.

The signs do not yet point to whether the public will embrace these documents or how the courts will view them, especially with regard to consumers’ medication preferences.