PADs are relatively new legal instruments. Prior to
the 1990s, most laws involving people with mental ill-
ness, such as involuntary civil commitment, on bal-
ance have placed limits on patient autonomy in the
interest of public safety or the patient’s “best medical
interests.” In the past 15 years, however, PADs have
been promulgated with the goal of promoting greater
self-determination among people with mental illness.
If followed by treatment providers, PADs may help
patients gain better access to the types of treatment
that work best for them—especially during times
when they are most in need of care but least able to
speak for themselves. Furthermore, the very exercise
of preparing a PAD, and discussing it with a mental
health professional, may enhance therapeutic alliance
and improve treatment engagement.
In theory, PADs provide a transportable document—
increasingly accessible through electronic directories—
to convey information about a patient’s treatment
history, including medical disorders, emergency contact
information, and medication side effects. Clinicians
often have limited background clinical information
about psychiatric patients who present in crisis centers
or hospital emergency departments. Nonetheless,
these are the typical settings in which clinicians are
called on to make critical patient management and
treatment decisions, using whatever limited data may
be available. With PADs, clinicians could gain imme-
diate access to relevant information about individual
cases and thus improve the quality of clinical decision
making—appropriately managing risk to patients’ and
others’ safety while also enhancing patients’ long-
term autonomy.
The use of legal coercion in mental health services
remains highly controversial, as it exposes a fault line
between two important societal values: respecting the
rights of individuals to choose their own health care
and accepting social responsibility to care for those
who are unable to care for themselves. Although
involuntary treatment may well be effective in
improving treatment adherence in the short run, it
comes at the price of reducing personal liberty. Insofar
as PADs may provide a means to promote both auton-
omy and beneficial treatment for persons with severe
mental illness, some scholars believe that PADs may
help resolve this fundamental dilemma in mental
health law and policy by reducing the need for invol-
untary treatment.
As of 2006, 25 states had passed specific PAD
statutory provisions. However, all states provide some
type of legal instrument—typically a health carepower of attorney—that patients can use to plan for
their psychiatric as well as medical treatment during
future periods of decisional incapacity. States’
advance directive laws were given added force by the
federal Patient Self-Determination Act (PSDA) of- The PSDA requires that all hospitals receiving
federal funds inform patients of their rights, including
the right to prepare advance directives as authorized
under state law and to institute policies for imple-
menting advance directives. In short, federal law helps
ensure that people with mental illness, in whatever
state they live, can use medical advance directives to
specify mental health treatment preferences or assign
proxy decision makers for mental health decisions.
Ethical and Legal Questions
PADs pose certain ethical and legal dilemmas. For
example, how should a clinician react if a severely
mentally ill patient presents a PAD refusing treat-
ment? Although doctors typically cannot override
end-of-life advance directives, most of the new PAD
statutes allow doctors to trump mental health treat-
ment preferences that are inconsistent with appropriate
psychiatric care as defined by community standards of
practice. However, in Hargrave v. Vermont(2003), the
U.S. Court of Appeals for the 2nd Circuit recently
upheld a lower court’s decision striking down a state
law that allowed mental health professionals to over-
ride a hospitalized person’s advance refusal of psy-
chotropic medications through a general health care
proxy. The court ruled that the Vermont override
law—which applied only to persons with psychiatric
disorders in the state hospital—was discriminatory on
the basis of disability and thus violated the Americans
with Disabilities Act, Title 3.
Some commentators worry that the Hargravedeci-
sion could have perverse consequences. Assuming
that some severely mentally ill individuals prefer to
remain unmedicated and assuming that they are able
to document such preferences in advance while fully
competent, the question arises, What are the ethical
and fiscal implications of a state policy that, in effect,
sanctions indefinite involuntary confinement of such
persons when they become incapacitated but without
providing them effective treatment? Should taxpayers
be expected to shoulder the burden of paying for sub-
stantially longer hospital stays for psychiatric patients
with PADs refusing medications? Another unintended
consequence of Hargraveis that psychiatrists, in reac-
tion to the specter of treatment-refusal PADs andPsychiatric Advance Directives——— 635P-Cutler (Encyc)-45463.qxd 11/18/2007 12:43 PM Page 635