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Superseding Psychiatric Advance Directives: Ethical and Legal Considerations

Dr. Swanson is Associate Professor, Dr. Elbogen is Assistant Professor, and Dr. Van Dorn is Research Assistant, Department of Psychiatry and Behavioral Sciences; and Dr. Swartz is Professor of Psychiatry and Head, Division of Social and Community Psychiatry, Duke University School of Medicine, Durham, NC. Dr. McCrary is Associate Professor, Department of Preventive Medicine, and Senior Fellow, Institute for Medicine in Contemporary Society, School of Medicine, Stony Brook University, Stony Brook, NY. This work was supported by the Greenwall Foundation, the John D. and Catherine T. MacArthur Foundation Research Network on Mandated Community Treatment, and the National Institute of Mental Health through a research grant (R01-MH063949) and an Independent Research Scientist Career Award (K02-MH67864) to Dr. Swanson. Address correspondence to: Jeffrey W. Swanson, PhD, Department of Psychiatry and Behavioral Sciences, Duke University Medical Center, Box 3071, Durham, NC 27710. E-mail: jeffrey.swanson{at}duke.edu

Psychiatric advance directives (PADs) were introduced in the 1980s as legal instruments for psychiatric patients to retain some choice over their own mental health treatment during periods of decisional incapacity. However, PADs are nested in larger structures of mental health law and policy that protect the interests of parties other than the patient, and which, in situations of conflict involving the treatment of incapacitated patients, tend to favor the clinician's professional judgment over the patient's manifest wishes to avoid standard treatment. Thus, PADs are trumped by civil commitment law and may also be legally overridden by clinicians who, acting in good faith, consider PAD instructions to be inconsistent with accepted clinical standards of care. We discuss philosophical-ethical and legal issues surrounding overriding PADs and offer analysis of the possible future of legal cases in which the question of overriding PADs and fiscal concerns may collide.

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