among the instruments psychologists may use to
determine a patient’s capacity to provide informed
consent.
Persons may be hospitalized for a brief period
without their informed consent if a qualified health
professional determines that an emergency exists. A
petition for lengthier periods of civil commitment
may be upheld if the court concludes that, based on a
qualifying mental condition, the patient presents a
danger of harm to self or others, no less restrictive
alternative to hospitalization exists, and the patient
may reasonably benefit from the treatment provided
in that setting. If patients refuse to provide informed
consent to psychiatric medication once they have been
civilly committed, the facility may attempt to obtain a
separate court order to compel this form of treatment
if failure to take such medication will constitute a fur-
ther danger of harm to self or others. Criminal defen-
dants may not be medicated for the purpose of
achieving trial competency without their informed
consent, unless the medication in question is med-
ically appropriate, will significantly enhance the like-
lihood of a fair trial, and represents the least restrictive
alternative available to further this purpose.
Substitutions for future judgment may occur as a
result of guardianship proceedings, in which a person
is alleged to be incapable of making decisions at a later
date about a specified range of personal and financial
affairs. The court may ultimately appoint a guardian to
oversee or prevent the respondent’s participation in
activities such as voting, marrying, consenting to med-
ical treatment, driving an automobile, or choosing a
place to live. Guardians may also control the respon-
dent’s ability to spend money, sell property, and other-
wise make contracts, or this may become the separate
responsibility of a court-appointed conservator
charged with monitoring solely financial matters.
Psychologists participate in such proceedings based on
their skill in assessing strengths and weaknesses in
each area in question. In the past, courts typically ren-
dered “all-or-none” decisions regarding guardianship,
such that respondents found lacking capacity in one or
more areas would find all their activities subject to
supervision; now, however, most jurisdictions provide
for “limited” or “partial” guardianship plans that are
tailored to the unique needs of the individual.Eric York DroginSee alsoCapacity to Consent to Treatment; Capacity to
Consent to Treatment Instrument (CCRI); End-of-LifeIssues; Forcible Medication; Guardianship; MacArthur
Competence Assessment Tool for Treatment
(MacCAT–T); Psychiatric Advance Directives;
Psychological Autopsies; Testamentary CapacityFurther Readings
Drogin, E. Y., & Barrett, C. L. (2003). Substituted judgment:
Roles for the forensic psychologist. In I. B. Weiner
(Series Ed.) & A. M. Goldstein (Vol. Ed.),Comprehensive
handbook of psychology: Vol. 11. Forensic psychology
(pp. 301–312). Hoboken, NJ: Wiley.
Marson, D. C., Huthwaite, J. S., & Hebert, K. (2004).
Testamentary capacity and undue influence in the elderly:
A jurisprudent therapy perspective. Law and Psychology
Review, 28,71–96.
Mazur, D. J. (2006). How successful are we at protecting
preferences? Consent, informed consent, advance
directives, and substituted judgment. Medical Decision
Making, 26,106–109.
Parry, J. W., & Drogin, E. Y. (2001). Civil law handbook on
psychiatric and psychological evidence and testimony.
Washington, DC: American Bar Association.
Volicer, L., Cantor, M. D., Derse, A. R., Edwards, D. M.,
Prudhomme, A. M. et al. (2002). Advance care planning
by proxy for residents of long-term care facilities who
lack decision-making capacity. Journal of the American
Geriatrics Society, 50,761–767.PSYCHIATRICADVANCEDIRECTIVES
Psychiatric advance directives (PADs) allow com-
petent persons to document advance instructions
for their future mental health treatment or designate
a health care agent to make decisions for them in
the event of an incapacitating psychiatric crisis. PADs
may enhance patient self-determination, improve
therapeutic alliance, and prevent psychiatric crises;
however, there are a number of legal, ethical, and
logistical barriers preventing the effective implemen-
tation of PAD laws. Research shows that most people
with mental illness would want a PAD if they received
help and that a manualized facilitation increased
completion and understanding of PADs as well
as improved working alliance and perceived met treat-
ment need. Studies also show that people with mental
illness incorporate clinically useful information in
PADs but that much more work is needed to bolster
the use of PADs in actual clinical practice.634 ———Psychiatric Advance DirectivesP-Cutler (Encyc)-45463.qxd 11/18/2007 12:43 PM Page 634