What is a Psychiatric Advance Directive?

Introduction

A psychiatric advance directive (PAD), also known as a mental health advance directive, is a written document that describes what a person wants to happen if at some time in the future they are judged to be suffering from a mental disorder in such a way that they are deemed unable to decide for themselves or to communicate effectively.

It can inform others about what treatment they want or do not want from psychiatrists or other mental health professionals, and it can identify a person to whom they have given the authority to make decisions on their behalf. A mental health advance directive is one kind of advance health care directive.

Legal Foundations

Psychiatric advance directives are legal documents used by persons currently enjoying legal capacity to declare their preferences and instructions for future mental health treatment, or to appoint a surrogate decision maker through Health Care Power of Attorney (HCPA), in advance of being targeted by coercive mental health laws, during which they may be stripped of legal capacity to make decisions.

In the United States, although 25 states have now passed legislation in the past decade establishing authority for PADs, there is relatively little public information available to address growing interest in these legal documents. In addition in states without explicit PAD statutes, very similar mental health advance care planning can and does take place under generic HCPA statutes – expanding the audience for PADs to all 50 states (see National Resource Centre on Psychiatric Advance Directives).

In addition, states are beginning to recognise legal obligations under the federal Patient Self-Determination Act of 1991, which includes informing all hospital patients that they have a right to prepare advance directives and – with certain caveats – that clinicians are obliged to follow these directives.

Finally, the Joint Commission on the Accreditation of Healthcare Organisations (JCAHO) requires behavioural health facilities to ask patients if they have PADs. The Centres for Medicare and Medicaid Services announced that patients have the right to formulate advance directives and to have hospital staff and practitioners who provide coercive interventions in the hospital comply with these directives. Hospitals out of compliance risk loss of Medicare and Medicaid revenue.

Proponents of these directives believe thy of followed by treatment providers, crisis planning using PADs will help involuntary detainees retain control over their decision making – especially during times when they are labelled incompetent. Additionally, advocates argue that health care agents will be instrumental in providing inpatient clinicians with information that can be central to patients’ treatment, including history of side effects and relevant medical conditions.

Clinical Benefits

Recent data from a NIH-funded study conducted by researchers at Duke University has shown that creating a PAD with a trained facilitator increases therapeutic alliance with clinicians, enhances involuntary patients’ treatment satisfaction and perceived autonomy, and improves treatment decision-making capacity among people labelled with severe mental illness.

Moreover, PADs provide a transportable document – increasingly accessible through electronic directories – to convey information about a detainee’s treatment history, including medical disorders, emergency contact information, and medication side effects. Clinicians often have limited information about citizens detained and labelled as psychiatric patients who present or are coercively presented and labelled as in crisis. Nonetheless, these are the typical settings in which clinicians are called upon to make critical patient-management and treatment decisions, using whatever limited data may be available. With PADs, clinicians could gain immediate 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.

For these reasons, PADs are seen as an innovative and effective way of enhancing values of autonomy and social welfare for detainees labelled with mental illness. Since PADs are among the first laws that are specifically intended to promote autonomy among people detained under mental health laws, wider use of PADs would empower a traditionally disenfranchised group when targeted for coercive psychiatry.

Barriers

National surveys in the United States indicate that although approximately 70% of people targeted by coercive psychiatry laws would want a PAD if offered assistance in completing one, less than 10% have actually completed a PAD.

Some people detained and forcibly drugged under coercive psychiatry laws report difficulty in understanding advance directives, scepticism about their benefit, and lack of contact with a trusted individual who could serve as proxy decision maker. The sheer complexity of filling out these legal forms, obtaining witnesses, having the documents notarized, and filing the documents in a medical record or registry may pose a formidable barrier.

Recent studies of practitioners of coercive psychiatry’s attitudes about PADs suggest that they are generally supportive of these legal instruments, but have significant concerns about some features of PADs and the feasibility of implementing them in usual coercive intervention settings. Clinicians are concerned about lack of access to PAD documents in a commitment, lack of staff training on PADs, lack of communication between staff across different components of mental health systems, and lack of time to review the advance directive documents.

In a survey conducted of 600 psychiatrists, psychologists, and social workers showed that the vast majority thought advance care planning for crises would help improve patients’ overall mental health care. Further, the more clinicians knew about PAD laws, the more favourable were their attitudes toward these practices. For instance, while most psychiatrists, social workers, and psychologists surveyed believed PADs would be helpful to people detained and targeted for forced drugging and electroshock when labelled with severe mental illnesses, clinicians with more legal knowledge about PAD laws were more likely to endorse PADs as a beneficial part of patients’ treatment planning.

However, many clinicians reported NOT knowing enough about how PADs work and specifically indicated they lacked resources to readily help patients fill out PADs. Thus, if clinicians knew more about advance directives and had ready assistance for creating PADs, they said they would be much more likely to help their clients develop crisis plans.

Resources

It thus has become clear that the potential significance of PADs is becoming widely recognised among those targeted for coercive psychiatry, survivors of coercive psychiatry, influential policy makers, clinicians, family members, and patient advocacy groups but that significantly more concerted efforts at dissemination were needed. The community of stakeholders interested in PADs and the broader concept of self-directed care are in need of online resource and gathering place for exchange of views and information.

As a result, in the United States, a collaboration between the Bazelon Centre for Mental Health Law and Duke University has led to creation of the MacArthur Foundation-funded National Resource Centre on Psychiatric Advance Directives, the only web portal exclusively devoted to developing a learning community to help people targeted for coercive psychiatry, their families, and clinicians prepare for, and ultimately prevent, coercive psychiatry interventions. The NRC-PAD includes basic information, frequently asked questions, educational webcasts, web blog, most recent research, legal analyses, and state-by-state information on PADs and patient-centred crisis planning. The NRC-PAD website thus includes easy step-by-step information to help those targeted for forced drugging, family, and clinicians complete PADs that mirror the provisions in the PAD statutes.

What is Capacity (in Scots Law)?

Introduction

Legal capacity is the ability of an individual to transact with others.

It should be distinguished from consent, where the individual with capacity, agrees for another to commit an act involving the consenter, such as consent to sexual relations under the Sexual Offences (Scotland) Act 2009.

Refer to Chronology of UK Mental Health Legislation and Mental Health Law.

Rights Capacity

All persons, human and juristic, have rights capacity, i.e. the ability to hold a right. This derives from the classification of the law of persons found in Roman law.

The word ‘person’ is usually taken to mean humans. However, in Scots law and in many other jurisdictions, the term is also used to describe corporate entities such as companies, or partnerships, Scottish Charitable Incorporate Organisation (SCIO) or other bodies corporate established by law (such as a government agency or local authority).

Organisations and associations must have the rights capacity to own property in their own right in order to act as a transferor (the person transferring ownership) or transferee (the person receiving ownership) in a voluntary transfer of land. It is necessary to check their respective articles of association, constitutions or founding legislation in order to ascertain whether the transferor and/or transferee has rights capacity in order to legally own land in Scotland.

If the transferee in a voluntary transfer is an unincorporated association, which there is no definition in Scots law but is generally interpreted as “a group of persons bound together by agreement for a particular purpose.” Without a corporate body, the association has no legal person status in Scots law and as such when unincorporated associations transact to obtain ownership of the land, all the members of the association instead will own the property jointly in trust rather than ownership of the land vesting in solely in the association itself.

Transactional Capacity (Capacity to Contract)

Children

Children under the age of 16 years old do not have capacity to enter into a transaction. Instead the law provides that those with parental rights and responsibilities under the Children (Scotland) Act 1995, Part I can act on a child’s behalf. This means that parents or a legal guardian appointed by the courts can transact on a child’s behalf. However children are still granted a range of exceptions under section 2 of the Age of Legal Capacity (Scotland) Act 1991 including:

  • A person under the age of 16 years shall have legal capacity to enter into a transaction of a kind commonly entered into by persons of his age and circumstances, an on not unreasonable terms.
  • A child over 12 years may make a will or testamentary writing.
  • A child over 12 can consent to the making of an adoption order in relation to them.
  • A child under 16 can consent to any surgical, medical or dental procedure or treatment where, in the opinion of a qualified medical practitioner attending him, he is capable of understanding the nature and possible consequences of the procedure or treatment. This also includes the storage of gametes and the donation of cells for research.
  • A child under 16 shall have legal capacity to instruct a solicitor, in connection with any civil matter, where that person has a general understanding of what it means to do so. A child over 12 shall be presumed to be of sufficient age and maturity to have such understanding. A child who has capacity to instruct a solicitor also has the right to sue or be sued in the Scottish courts.

Any other transaction a child enters into is void, this means that contract is void ab initio (Latin: from the beginning) from the moment the child enters into the contract. Where a parent or guardian enters into a prejudicial transaction.

Prejudicial Transactions Remedy for Young Adults (16-18 Years Old)

A person under the age of 21 may apply to the Sheriff court or Court of Session to have any previous prejudicial transactions set aside where the transaction was made by the applicant between the ages of 16 to 18. A prejudicial transaction is that:

“(a)an adult, exercising reasonable prudence, would not have entered into in the circumstances of the applicant at the time of entering into the transaction, and (b) has caused or is likely to cause substantial prejudice to the applicant”

An example of an application can be seen in X v British Broadcasting Corporation, where the applicant was successful in obtaining an interim interdict (in other jurisdiction this is termed an interim injunction) based on her “real prospect of success” in her action against the BBC that, among other things, that the agreement she had reached with the BBC to participate in a courtroom-documentary was a prejudicial transaction because she had been 17 at the time she had consented (transacted) while suffering from dyslexia, substance abuse and did not consult a solicitor prior to entering into the agreement to participate.

Adults Generally

All adults over 16 years old have legal capacity under the Age of Legal Capacity (Scotland) Act 1991. However a human person’s capacity to contract may be affected by the following:

Adults Without Capacity

In situations where an adult is infirm, elderly or has other learning/social difficulties, the adult’s capacity to transact may be affected as a consequence and they may be considered incapax, now termed an adult with incapacity under the Adults with Incapacity (Scotland) Act 2000. The 2000 Act, one of the first Acts of the new Scottish Parliament, followed on from the Scottish Law Commissions report critical of the contemporary law in 1990. The test for capacity is found in Section 1(6) of the 2000 Act:

  • “Section 1(6) of the Adults With Incapacity (Scotland) Act 2000:
  • “adult” means a person who has attained the age of 16 years;
  • “incapable” means incapable of—
  • (a) acting; or
  • (b) making decisions; or
  • (c) communicating decisions; or
  • (d) understanding decisions; or
  • (e) retaining the memory of decisions, as mentioned in any provision of this Act, by reason of mental disorder or of inability to communicate because of physical disability; but a person shall not fall within this definition by reason only of a lack or deficiency in a faculty of communication if that lack or deficiency can be made good by human or mechanical aid (whether of an interpretative nature or otherwise);
  • and “incapacity” shall be construed accordingly.”

If an adult without capacity enters into a contract, the contract is void irrespective of whether the other party knew of the lack of capacity. Under the In its place, a person can act for another individual by means of three legal routes:

  • Power of Attorneys;
  • Intervention Orders; and/or
  • Guardianship Orders.

Companies

Rights Capacity

Organisations and associations must have the rights capacity to own property in their own right in order to act as a transferor (the person transferring ownership) or transferee (the person receiving ownership) in a voluntary transfer of land. It is necessary to check their respective articles of association, constitutions or founding legislation in order to ascertain whether the transferor and/or transferee has rights capacity in order to legally own land in Scotland. Companies and partnerships, and other corporate bodies will usually have rights capacity based on the statute enabling their creation. However, it is a matter of academic debate whether partnerships are capable of owning corporeal heritable property (land) in its own right, or whether the partners hold the property jointly in trust on behalf the partnership.

If the transferee in a voluntary transfer is an unincorporated association, which there is no definition in Scots law but is generally interpreted as “a group of persons bound together by agreement for a particular purpose.” Without a corporate body, the association has no legal person status in Scots law and as such when unincorporated associations transact to obtain ownership of the land, all the members of the association instead will own the property jointly in trust rather than ownership of the property vesting in solely in the association itself.

Transactional Capacity

Organisations and associations must have the transactional capacity to enter into contracts and transfer property in their own right in order to act as a transferor (the person transferring ownership) or transferee (the person receiving ownership) in a voluntary transfer of land. It is necessary to check their respective articles of association, constitutions or founding legislation in order to ascertain whether the transferor and/or transferee has rights capacity in order to legally own land in Scotland. Companies and partnerships, and other corporate bodies will usually have rights capacity based on the statute enabling their creation. However, it is a matter of academic debate whether partnerships are capable of owning corporeal heritable property (land) in its own right, or whether the partners hold the property jointly in trust on behalf the partnership. With transfers of land, an authorised officer of the company or other corporate organisation can act as an agent of the body corporate and sign any formal contracts under the Requirements of Writings (Scotland) Act 1995.