Surprisingly, no other court has adjudicated this issue. However, in Second Circuit states—Vermont, New York, and Connecticut—DPOAs of mentally ill patients cannot be abrogated. This is an unsettling notion for many psychiatrists, because, as Paul Appelbaum, MD, explains, “Advance directives may now constitute an ironclad bulwark against future involuntary treatment with medication—except in emergencies—even for incompetent, committed patients and even when the alternative is long-term institutional care.”12 Other scholars have pointed out that giving physicians an avenue to override or disregard patients’ directives would negate their intended purpose, which is to have one’s competently expressed wishes followed when one’s decision-making capacity is compromised.6,13
Doctors’ duties
How you should respond to an involuntary patient’s PAD depends on which state you practice in. A physician’s obligation to comply with a patient’s PAD depends on state law, and most states with PAD laws provide some latitude or options if physicians believe they should not comply with a patient’s wishes.6,13Table 114-18 cites examples of statutory language regarding a physician’s duty to comply with a PAD.
A survey of 164 psychiatrists in North Carolina provides some insight into psychiatrists’ perceptions of PADs.19 After reading a hypothetical scenario about a mentally ill individual whose PAD expressed refusal of hospitalization or treatment with antipsychotics, 47% of the psychiatrists chose to override the PAD. The authors found that “PAD override was more likely among psychiatrists who worked in hospital emergency departments; those who were concerned about patients’ violence risk and lack of insight; and those who were legally defensive.”
In addition to addressing conflicts between patients’ PADs and doctors’ views about proper treatment, some state laws also contain clauses that spell out the limits of physician liability in cases of physician compliance or noncompliance with PADs. Excerpts from 2 such laws appear in Table 2.16-17
Table 1
Examples of state laws on compliance with psychiatric advance directives
| State | Provider compliance |
|---|---|
| Kentucky14 | Providers must provide mental health treatment that complies with the instructions in an advance directive to the fullest extent possible when the instructions are within standards for mental and physical health care and permitted by state and federal law. Providers may override expressed refusals of treatment only if a court order contradicts the advance directive or an emergency endangers a patient’s life or poses a serious risk to physical health |
| Ohio15 | A provider who does not wish to comply with a patient’s declaration must notify the patient and any proxy and document the notification. The provider may not interfere with the patient’s transfer to another provider who is willing to follow the patient’s declaration. Providers may subject a patient to treatment contrary to a declaration only if:
|
| Oklahoma16 | Physicians and psychologists must follow as closely as possible the terms of a patient’s declaration. A provider who cannot comply with the terms of the patient’s declaration must make arrangements to transfer the patient and the appropriate medical records without delay to another physician or psychologist |
| Pennsylvania17 | If a provider cannot in good conscience comply with a patient’s declaration because the instructions are contrary to accepted clinical practice and medical standards, the provider must make every reasonable effort to help transfer care to another provider who will comply with the declaration. While the transfer is pending, the provider must provide treatment in a way that is consistent with the declaration. If reasonable efforts to transfer fail, the patient may be discharged |
| Utah18 | A physician must comply with a declaration to the fullest extent possible, consistent with reasonable medical practice, the availability of treatments requested, and applicable law. A physician may subject a patient to treatment contrary to wishes expressed in a declaration if:
|
Table 2
Excerpts from state laws on PAD-related liability
| State | Liability or immunity |
|---|---|
| Oklahoma16 | A provider who transfers the patient without unreasonable delay to another provider or who makes a good faith attempt to do so may not be subject to criminal prosecution or civil liability. The provider may not be found to have committed an act of unprofessional conduct for refusal to comply with the terms of the declaration, and transfer under such circumstances shall not constitute abandonment. However, the failure of a provider to transfer in accordance with this subsection shall constitute professional misconduct |
| Pennsylvania17 | A provider who acts in good faith and consistent with the statute may not be subject to criminal or civil liability, discipline for unprofessional conduct, or administrative sanctions. A provider may not be found to have committed an act of unprofessional conduct by the relevant state professional board because the provider refused to comply with:
|
| PAD: psychiatric advance directive | |