By Gregory J. Radomisli, Esq. and Michelle A. Frankel, Esq.
Monday, March 25, 2019
Individuals may use different methods to determine what treatment they will receive in the future if they become incompetent to make their own medical decisions. Traditionally, people use a healthcare proxy and/or a living will. Recently, however, the application of such anticipatory care has arisen in the context of patients who suffer from mental illnesses and may experience a psychiatric crisis, rendering them unable to make their own decisions. Twenty-seven states now allow for the use of psychiatric advance directives (PADs), which provide instructions about the specific mental health treatment a patient wants when he or she is incapable of expressing his or her views as a result of a psychiatric condition. Each method is slightly different.
A designated healthcare proxy must act in a patient’s best interest regarding a patient’s treatment if the patient can no longer make such decisions. A proxy can be authorized to make all medical decisions, or can be limited to specific areas, such as whether to keep the patient on life support. Only one proxy may be appointed at a time, so a patient cannot have multiple proxies for mental and physical healthcare decisions. Proxies must follow verbal or written instructions the patient provided before he or she became incompetent, and if a decision arises for which there is no predetermined decision, then the proxy must act in the patient’s best interest.
Living wills are written to account for specific occurrences, and specify how the patient wants to be treated when a particular issue arises. It may be helpful to designate a proxy as well so that the proxy can act in the patient’s best interest if a circumstance arises that the living will did not anticipate. New York law establishes how to designate a proxy, and New York courts generally recognize a living will if it establishes the patient’s wishes by clear and convincing proof.
PADs are legal documents that specify what treatments a patient wants or does not want, but are limited to when a patient is undergoing a mental health crisis and needs psychiatric treatment. PADs tend to specify what treatments are, or are not, effective. A provision specifying what treatment has or has not been effective in the past is particularly useful in a PAD, given the varied responses patients have to psychiatric medications.
The federal Substance Abuse and Mental Health Services Administration and National Alliance on Mental Illness are working to make PADs more widespread to help mentally ill patients be treated more effectively by minimizing hospitalization and involuntary commitment, and by allowing treatment to be rendered more consistently with patients’ preferences. Hospital staff must ask if patients have advance directives, including psychiatric ones, per requirements established by the federal Centers for Medicare and Medicaid Services.
From a liability standpoint, a PAD can be helpful, because it provides a set of instructions that the physician must follow. Conversely, a physician can be vulnerable to the claim that the physician did not follow the directives in the PAD, and can be put in a difficult position if a conflict arises between a PAD directive and the law. For example, if the PAD states that the patient does not want be hospitalized involuntarily, but then presents to the hospital as a danger to herself or others.
Since PADs are becoming more prevalent, medical personnel should familiarize themselves with federal and state laws regarding PADs, and any specific hospital guidelines, to ensure that they are in compliance, especially if they commonly treat psychiatric patients.