National Ethics Teleconference

***Ethical Issues in Advance Directives for Behavioral Health Care***

**May 28, 2003**

# introduction

**Dr. Berkowitz:**

Good day everyone. This is Ken Berkowitz. I am the Chief of the Ethics
Consultation Service at the VHA National Center for Ethics in Health
Care and a physician at the VA NY Harbor Healthcare System. I am very
pleased to welcome you all to today\'s National Ethics Teleconference.
By sponsoring this series of calls, the Center provides an opportunity
for regular education and open discussion of important VHA ethics
issues. Each call features an educational presentation on an interesting
ethics topic followed by an open, moderated discussion of that topic.
After the discussion, we reserve the last few minutes of each call for
our \'from the field section\'. This will be your opportunity to speak
up and let us know what is on your mind regarding ethics related topics
other than the focus of today\'s call.

# Announcements

**Dr. Berkowitz:**

Remember, CME credits are available for listeners of this call. To get
yours go to <http://vaww.ees.aac.va.gov/ethics>.

We have had a request for advance directive forms in Spanish or other
languages. I would ask our audience if any of their facilities provide
advance directives in Spanish or any other languages to please e-mail
them to us at the Ethics Center at <vhaethics@hq.med.va.gov>

Ground Rules: Before we proceed with today\'s discussion on Advance
Directives for Behavioral Health Care, I need to briefly review the
overall ground rules for the National Ethics Teleconferences:

-   We ask that when you talk, you please begin by telling us your name,
    location and title so that we continue to get to know each other
    better. During the call, please minimize background noise and PLEASE
    do not put the call on hold.

-   Due to the interactive nature of these calls, and the fact that at
    times we deal with sensitive issues, we think it is important to
    make two final points:

    -   First, it is not the specific role of the National Center for
        Ethics in Health Care to report policy violations. However,
        please remember that there are many participants on the line.
        You are speaking in an open forum and ultimately you are
        responsible for your own words, and

    -   Lastly, please remember that these Ethics Teleconference calls
        are not an appropriate place to discuss specific cases or
        confidential information. If, during the discussions we hear
        people providing such information we may interrupt and ask them
        to make their comments more general.

        Today\'s presentation will consider advance directives for
        behavioral health care. With me today is my colleague Dr. Gladys
        White. Dr. White is a nurse and a philosopher, and is the Deputy
        Director of the National Center for Ethics in Health Care.

        **PRESENTATION**

**Dr. Berkowitz**:

Before I turn things over to Gladys, let me briefly review what an
advance directive is. The term advance directive refers to "specific
written statements made by a patient who has decision-making capacity
regarding future health care decisions." In general, an advance
directive has three parts: living will, treatment preferences, and
durable power of attorney for health care. The purpose of an advance
directive is to "instruct the surrogate and providers about the
patient's wishes when the patient can no longer make decisions." Two
months ago, on a prior call in this series, Dr. Robert Pearlman
addressed some strategies for improving advance directives for health
care, and a transcript of that call is available on the Ethics Center's
website.

The focus of this call, advance directives for mental health care, came
to the attention of the Ethics Center largely because the revised JCAHO
standards that created confusion about advance directives for behavioral
health care, and the Ethics Center has received a number of consultation
requests after mock JCAHO survey teams brought it up as a potential
problem.

So Gladys, can you begin by telling us, What is an advance directive for
mental health care?

**Dr. White**:

An advance directive for mental health care is similar to an advance
directive for health care in many ethically relevant ways. Both types
are based on the ethical insight that human beings should be treated as
ends in themselves, rather than as means to the ends or purposes of
others, in addition, these types of directives are based on the ethical
principles of autonomy, beneficence, and non-maleficence. Both types of
advance directives are intended to allow patients to control their own
health care after they become incapacitated.

The difference between these types of advance directives is that mental
health advance directives emphasize treatment of a mental illness. For
example, advance directives for health care are generally used to
express treatment preferences for life-sustaining treatment, even though
they can be used to express a broad array other treatment preferences,
while advance directives for mental health care express treatment
preferences that are likely to be employed when the patient loses
decision-making capacity due to mental illness. So, for example, an
advance directive for health care usually covers preferences about CPR,
mechanical ventilation, and other life sustaining technology, while
advance directives for mental health care could include treatment
preferences for hospitalization, medication, the use of restraints,
seclusion, sedation, and electroconvulsive therapy, otherwise known at
ECT. An advance directive for mental health care can be viewed as a
specialized advance directive for health care aimed specifically at the
treatment for or in response to a mental illness. Like any other
illness, it is the provider's responsibility after a diagnosis to talk
about treatment options that are likely to arise, and document the
patient's preferences.

I think it is also important to note that advance directives for mental
health care are *not* consents to treatment. There is a confusion
surrounding the use of advance directives for mental health care in that
these documents, instead of stating a treatment preference actually
serve as a sort of advance consent to a particular treatment. This is
not the case. As with all advance directives, an advance directive for
mental health care is a statement of the patient's preferences, and may
enhance, but cannot substitute for the normal informed consent process.

**Dr. Berkowitz**:

I think you brought out some important differences between regular
advanced directives for health care and advanced directives for mental
health. Bob pointed out a couple of months ago that there were some
barriers with advance directives for health care, such as practitioner
reluctance to discuss the topic, difficulty understanding what the
patient meant, and determining the proper context for implementing the
directive. It seems that advance directives for mental health care would
bring up some of the same issues, but that they also present other
ethical challenges.

**Dr. White**:

That's right, and I think the best way to approach that is through the
use of a case study. This case has been fictionalized to protect the
identities of those involved, but demonstrates the use of advanced
directive for mental health care. The case study goes as follows:

J.S. is a twenty-four-year-old male with bipolar disease. He was
recently admitted to a hospital for depression, where his physician
began treatment with standard drug therapies. J.S. continued to
deteriorate and became suicidal, so his doctor advised elctroconvulsive
therapy and J.S. underwent a course of ECT treatments.

J.S. recovered and was released from the hospital. During this time, a
friend told him about advance directives for mental health care, and
J.S. brought up this issue with his doctor. They discussed J.S.'s
treatment preference if he were to become incapacitated, including
treatment with ECT, and those preferences were documented in an advance
directive for mental health care.

Two years later, J.S. was admitted again for depression. He was
initially treated with medication, but he did not respond. His doctor
recommended ECT, and J.S. consented. J.S. rapidly deteriorated and
became incapacitated. He refused any further treatment with ECT. The
doctor contacted J.S.'s surrogate to obtain consent for ECT, but J.S.'s
surrogate was not sure if the treatment should be continued. J.S.'s
doctor called the ethics consult team, and with the surrogate and
treatment team using J.S.'s advance directive for mental health care as
a guide, they made a substituted judgment to continue the treatment.

J.S. recovered, and the treatment team reviewed his advance mental
health directive with him, to see how it might apply in the future.

**Dr. Berkowitz**:

That's a provocative case, and it raises one question, are advance
directives for mental health care really "Ulysses contracts?" That term
comes from the Homeric story of Ulysses and his men as they sailed near
the mythical sirens. Ulysses had his men cover their own ears, and tie
him to the mast of the ship. They were commanded not to untie him, no
matter what he said under the influence of the siren's song. As Ulysses
and his men sailed past the sirens, Ulysses commanded his men to untie
him, but they kept their oath and left him tied to the mast.

**Dr. White**:

The metaphor of the Ulysses contract might be an apt one for the use of
advance directives for mental health. In the case of J.S., it translates
into the question of whether the treatment team and surrogate can
override the patient's expressions at a time when the patient is
incapacitated. And just like with any other advance directive, the
answer to that question is yes. But, if the patient does have
decision-making capacity, then the informed consent policy applies and
no treatment can be performed without the prior consent of the patient.
It is also important to note that if a patient has decision-making
capacity, he or she can revoke any consent decision or advance directive
at any time, and that would also include advance directives for mental
health. As the case with J.S. points out, advance directives for mental
health care do not replace informed consent, but are a guide to help the
surrogate and treatment team make decisions that the patient would have
made if he or she were decisionally capable.

**Dr. Berkowitz**:

I would like to reemphasize that point, that these advance directives do
not replace the informed consent discussion. So, the question is what
should a practitioner do when presented with an advance directive for
mental health care?

**Dr. White:**

Well, first and foremost a practitioner should, just like with any other
advance directive, see if it is valid and if it applies to the given
situation, and if so, implement it according to VA policy. The JCAHO
standards have really drawn attention to advance directives for mental
health. The standard that refers to these directives is TX.7.1.3, and it
states that at the, "initial assessment of each patient at the time of
admission or intake assists in obtaining information about the patient
that could help minimize the use of restraint or seclusion." This is
elaborated upon in the intent section of the standard, which requires
the organization to determine "whether the patient has an advance
directive with respect to behavioral health care and ensures that direct
care staff are made aware of the advance directive."

As Ken stated earlier, this standard precipitated a number of consult
requests because mock survey teams pointed to the standard, and
facilities were unsure about what it meant. In particular since VHA, as
a whole, is committed to maintaining a least restrictive environment it
is not clear how these directives would impact care. Particularly since
there may be times during the treatment of a patient with a mental
illness, or any other disease for that matter, that an emergency arises.
In those emergency circumstances the team may have to act without
consent or in contradiction to the patient's stated wishes if the
patient is a danger to himself or others.

In response to the consults, the Center corresponded with JCAHO on the
meaning of the standard earlier this year. In their response they stated
that this standard is not meant to extend the Patient Self-Determination
Act to advance directives for mental health care, and that facilities
are not necessarily required to ask every patient if they have an
advance directive for mental health care, or offer every patient the
opportunity to develop one. The real intent behind this standard is that
JCAHO wants to ensure that if a practitioner is presented with an
advance directive for mental health care it is properly and
appropriately considered.

**Dr. Berkowitz**:

Again, Gladys, I just want to reemphasize the last point that you made.
In our communications with the Joint Commission's Standards
Interpretation Group (SIG), they very clearly told us that the intent of
the standards is not that they expect facility to ask every patient if
they have an advanced directive for mental healthcare. Their intent is
to ensure that if a practitioner encounters one, or if a patient
presents to the facility with an advanced directive for mental health
care, that the document is treated thoughtfully and respectfully and
that it is appropriately considered. I want to make sure that this is
very clear to everyone on the call. It has been a real point of
confusion in the field.

What else should a practitioner keep in mind if they are presented with
an advance directive for mental health care? As I understand it, advance
directives for mental health are already legal in several states, and
there are readily available forms on the internet. It seems that in the
future more and more mental health patients may be executing advance
directives for mental health care.

**Dr. White**:

As you know, state laws do not apply to VHA facilities, but such laws do
illustrate how advance directives for mental health care are used
outside of the VA. Also, VA practitioners should also first look to VHA
handbooks and federal regulations for guidance, and that even though
state laws do not apply, it is good to become familiar with them as they
often contribute to the development of a standard of care in a specific
state. I am not a lawyer, and the following discussion should not be
construed as legal advice.

I want to quickly mention one state law, and one state legislative
initiative. North Carolina has a law on the books for "Advance
Instruction for Mental Health Treatment." This law outlines the contents
of a validly executed advance directive for mental health. The North
Carolina statute allows a patient to express preferences for
medications, mental health facilities, and the use of restraints,
seclusion, and ECT.

There is also a bill in Washington State that addresses advance
directives for mental health. It has many of the same features as the
North Carolina law, including allowing patients to state preferences for
specific types of mental health treatment, and admission and retention
in a mental health facility for up to fourteen days. It does have one
very significant difference from the North Carolina law.

In the North Carolina law, the patient's advance directive for mental
health care is binding and irrevocable once a licensed physician or
psychologist deems the patient to be incapacitated. In this way, the
North Carolina law really is a Ulysses contract. The Washington bill,
however, allows a patient's advance directive to be deemed revocable or
irrevocable. If a patient chooses to make the advance directive
irrevocable, then once the patient becomes incapacitated, the
instructions in the advance directive must be followed, even if the
patient objects at the time. If, on the other hand, the advance
directive is deemed revocable, then the patient's objections must be
honored, even if the patient is incapacitated.

Again, these state laws do not apply to VHA, but they are a good
illustration of how advanced directives for mental health are being used
and regarded outside VA.

**Dr. Berkowitz**:

That's good to know. That helps everyone considered the broader health
care system. You also mentioned before that there were some internet
sites where advance directives for mental health were available. Could
you comment on that?

**Dr. White**:

One site people commonly refer to for information about advance
directives for mental health is the Judge David L. Bazelon Center for
Mental Health Law in Washington, DC. The Bazelon Center is a non-profit
advocacy group for the protection of the civil and legal rights of
adults and children with mental illnesses. This group is a major
advocate of advance directives for mental health care, and makes a
psychiatric mental health directive form available for free online.
Though, I want to add here that neither the National Center for Ethics
in Health Care, nor the VA endorse this website or its content, and the
VA does not recognize the Bazelon form as an official document. However,
it may be a useful site for seeing the form an advance directive for
mental health can take.

The introductory material for the Bazelon advance directive claims three
advantages for having such a directive. They are:

1.  An advance directive empowers you to make your treatment preferences
    known

2.  An advance directive will improve communication between you and your
    physician. It can prevent clashes with professional over treatment
    and may prevent forced treatment

3.  An advance directive may shorten your hospital stay

    I think both practitioners and patients would agree that these are
    good objectives; it is not completely clear however that advance
    directives for mental health will be able to accomplish each of
    these objectives fully. And I think that is where we find this
    tension with advance directives for mental health care---if, as
    Bazelon asserts, they could prove to be beneficial to both patient
    and provider in ensuring the shortest hospital stay and least
    restrictive treatment environment for the patient, and better
    overall communication. The question remains however, if advance
    directives for mental health will prove to be of significant
    practical value in the clinical setting.

    **Dr. Berkowitz:**

    Thank you Gladys. Now we have reviewed the general topic of advanced
    directives; outlined a framework for what we think advanced
    directives for behavioral health or mental health are; describe the
    background in which this came to our attention and point out the
    pressures that are being put on the healthcare system by inclusion
    of these documents in the intent statements of the Joint Commission
    standards. We have also, given some non-VA examples, State laws and
    other background and some private sector example of how this is
    playing out.

    **DISCUSSION**

    **Dr. Berkowitz**:

    At this point in the call, I would like to open the call for
    discussion of advance directives for mental health by asking our
    listeners in the field to share their thoughts and experiences on
    this topic. We ask that when you talk, you please begin by telling
    us your name, location and title so that we continue to get to know
    each other better.

    -   Has anyone had a patient that has presented an advance directive
        for mental health? Did it help?

**Dr. Ellen Rothchild, Cleveland, OH VAMC:**

I agree with you that in the mental health field an advance directive
probably differs from a general medical/surgical advance directive. I
think there are some very nice aspects to it such as, a provision in
which a patient could make a request regarding visitors or about not
disclosing whether they are or are not in the hospital. But these things
are already going on, and any patient can request them. With respect to
things such as forced treatment and ECT, there are separate
considerations. With respect to forced medication, I think that usual
practice is to go to court to request that the court make a
determination following a psychiatric recommendation in the case of say,
a severely psychotic patient who is at high risk for harm to himself or
other persons.

In the same sense with respect to ECT, we also have to go to court.
Although State law does not affect VA law, here in Ohio we are obliged
to go to court in order to obtain support for administering ECT to a
patient where that treatment is indicated. I would question whether the
surrogate decision-maker appointed by a patient for example, close
friend or relative would carry any weight in Ohio.

**Angela Prudhomme, JD, Chief, Ethics Policy Service, Center:**

Department of Veterans Affairs is a Federal health care system and the
Ohio State laws would not be controlling. Our surrogates are authorized
to consent for any type of treatment of patients.

**Dr. Berkowitz:**

I was going to make the same comment to Dr. Rothchild. You may certainly
want to be familiar with and consider the Ohio law, and we have great
respect for State law, but you are not obliged to follow it. Instead you
should follow the VA policies, procedures and regulations for
administering ECT and other treatments. I know there are separate
polices on forced administration of psychotropic medications that are
different than your other sister or non-VA institutions in Cleveland.
You may want to look at that because I think your regulatory structure
and your policies may give you some more latitude than you think.

**Dave Busse, JD, Louisville VA, Attorney:**

The VA does have advance directive policy so there is some VA regulation
in that area and these regulations ought to be followed. But the VA has
no guardianship law for appointment of guardian and the VA has no
Federal mental inquest and to that extent Dr. Rothchild is correct. If
we wanted to invent a federal mental inquest law we could do that, but
in 50 years the agency has never chosen to do so, and we therefore rely
upon state mental inquest laws to implement that just like we rely on
State guardianship laws.

Dr. Rothchild is right in most of the things she said. In Kentucky, for
instance, you can not get a court order either in state or federal court
for a guardian to hospitalize a patient against their will even if a
guardian signs that order. That's because the courts have felt that the
state mental inquest processes have control over the guardianship
processes. I believe there is a whole lot of merit to what Dr. Rothchild
was saying in most states in this country.

**Dr. Berkowitz:**

I certainly was not intending to imply that there was not merit in what
she was saying. And I agree with you completely. Dr. Rothchild any
comments back?

**Dr. Rothchild:**

I think that it is a very interesting discussion, and we often do feel
as if we are treading on thin ice with respect to knowledge of a state
regulation against VA regulations. I was not including the issue of
forced hospitalization but only forced treatment. I guess in the case of
forced hospitalization we would feel supported by state regulations, but
that's another issue.

I surely do not see that any advance directives would hold a lot of
weight with respect to hospitalization if we go by the usual standards
that are used in this state and other states with respect to risk of
harm to self and others in the care for ones self. I very much
appreciate all the discussion. Thank you.

**Dr. Berkowitz:**

To pick up on what you were saying; that's one of our concerns when
thinking about advance directives in general. At some point, the
practical value of these documents is limited by the situation of the
patient. And there are times when if there is a significant danger of
the patient to themselves or others, their wishes while known and
expressed, might be superseded.

**Elissa Brown, RN, West LA:**

In some ways it is like other advance directives where, the most that
they give us is a guide to what the patient thinks they may want in that
situation. So, they are similar in that respect. At what point would you
suggest that we get the advance directive from a patient? Who is to
determine, just like with regular advance directive, whether this
patient has the capacity to make those decisions at the time that we are
talking to him about advance directives?

**Dr. Berkowitz:**

I think that we have talked, in this series, extensively about
determination of decisional capacity, and in general, the responsibility
for that decision falls to the patient's primary care provider. Of
course, if the question of capacity is complicated by the presence of a
mental illness then we certainly would recommend consultation with a
mental health provider to attempt to ensure that the treatment is
optimal and that the patient's decision-making capacity is restored. But
short of that, that determination really falls to the patient's primary
care provider.

As far as the second part of your question, the timing of the advance
directive for behavioral health, as with all advanced directives, is
sort of a "Catch-22." Your initial knee jerk reaction is that the
earlier these things are discussed the better off you are. However, the
further the patient is from the immediacy of the decision, the less
likely he/she may be to actually state things that would apply in that
situation.

So, I cannot give you a straight answer except that if a patient is
foreseeably going to be in a situation where they are going to lose
capacity, one thing is absolutely clear, it's much better to do it
before that situation occurs. This is stating the obvious. Short of
that, the sooner the better is the general rule, but that has other
problems.

Elissa, as someone who has been in involved in the delivery psychiatric
services at the West LA, VA for a long time, what has your experience
been with advance mental health directives. Have you ever been presented
with one from a patient, have they ever been used in your facility?

**Ms. Brown:**

No, not that I know. We have a number of people sitting here and we do
not know if they are being used. The first time I heard about it, was
through a call I received about it from another VA. They were concerned
about the Joint Commission and wondering if everybody should have them.
But no, we have not had to deal with them here that we know of.

**Florence Long, Supervisor, SWS, West LA VA:**

In California we have a law whereby patients are placed on
conservatorship of person and estate, and when patients come in and
refuse to receive mental health treatment, then the conservator can
intervene and require that the person be admitted and receive treatment.
Now how is that going to conflict with this new mental health advance
directive, because it seems very, very similar to me?

**Dr. Berkowitz:**

I assume that a conservator is a surrogate just like any other
authorized surrogate decision-maker, and there are ethically sound ways
in which they are supposed to make decisions. All surrogates are
supposed to try as best as they can to make decisions in a substituted
judgment form. That is, by considering whatever they know about the
patient's values, background, and history, and try to make a decision
that the patient would have made in that specific situation.

This is where an advance directive really could help in that you have
pretty clear and convincing evidence, in writing, of what a patient
intended, assuming the document applies to the current situation. The
surrogate would be wise to make their decisions based on what they think
is in the patients best interest, as determined in consultation with the
patient's treatment team. Does that sound appropriate to you?

**Ms. Long:**

What happens when the court appoints these conservators and patient's
rights are involved? There are a number of people here in California
involved in treatment of a mentally ill patient, then they go to court
and a conservatorship is assigned. So if the conservatorship is
assigned, that conservator, by law, has all of the decision-making
responsibility and if someone else comes in with the advance directive
for mental health care that might present a problem for us.

**Dr. Berkowitz:**

Well, I think though, and this is my personal opinion, that it would
irresponsible of a surrogate to make a decision and not consider the
previously known wishes as stated by the patient. I would think that
would be true of any authorized surrogate whether it was a next-of-kin
or a court appointed surrogate. Do not you think?

**Ms. Long:**

I think that would have to be within certain limits. Any person involved
in the patient's treatment should try to collaborate together,
communicate and come up with the best decision. However, because the
conservator could be a court appointee e from the office of the public
guardian, rather than a relative, then there might be some conflict in
determining what the patient would have wanted, and that is something
that we might experience here.

**Ms. Prudhomme:**

Even if a patient has a court appointed guardian, that guardian is still
supposed to act based first on substituted judgment, what they know the
patient would have wanted, and they would use information available
perhaps from the family member or the advance directive document as
evidence of that, or if they do not have that kind of information then
they go to a best interest standard. That applies to all types of
guardians or surrogates.

**Ms. Long:**

Thank you, not every patient should be asked about advance directives,
and not every patient for mental health should be required to complete
an advance directive in mental health. Can you explain that a little
further?

**Dr. Berkowitz:**

I feel very comfortable saying that not every patient should be required
to complete any type of advance directive. That's really a decision that
is up to the patient. I would like to think that we talk to all of our
patients in general about advance care planning, which is required by
law and by VA policy. I think that this is ethically in the spirit of
collaborative decision making that we as a health care system strive to
create. However, what I meant to say is that the Joint Commission's
intent is not for us to ask every patient that comes into our health
care system about an advance directive specifically for mental health
care.

Local facilities may want to consider this, and this is phrased as a
question, whether or not we think that we should offer these advance
directives to people who come into our mental health environments or to
certain programs. What would probably be more relevant to many people in
that population? What do people think about that?

**Sue Ward, RN, Reno, NV VAMC:**

The Joint Commission cited us in September 2001, on that TX7.1.3
standard, and one of the citations was that we did not determine whether
patients had advance directives for behavioral health care and then
shared that information with staff. To get that citation taken care of,
we had to have an electronic progress note that says we will ask each
and every mental health patient upon admission if they have one, and if
they do have one it will be placed in the chart and staff will be made
aware of it.

**Dr. Berkowitz:**

Now is that for every patient that comes in?

**Ms. Ward:**

Every behavioral health care patient.

**Dr. Berkowitz:**

Again, I am not Joint Commission but I have it in writing from them,
that that is not the intent of that standard. If you want to communicate
with me further I could provide you with their statements in writing.

**Ms. Ward:**

We certainly appreciate that input because it gives us additional
information about how this is being handled in the clinical setting. It
might be nice if you could just put an attachment to the minutes, so
people could get the letter you have from Joint Commission. Other
facilities may need to have it in their files to pull out to show their
surveyor.

**Dr. Berkowitz:**

What I will do is this; I will include it in the transcript of the call.
Right now, I can read part of it; it says: "This standard is not meant
to say that it is required for the organization to ask, for as you would
the advance directive that is mandated by the patient self determination
act, this is a document that a psychiatric patient may present
themselves with upon entering the facility." In my conversations with
the Standards Interpretation Group, they specifically said they want us
to be able to respect them, to thoughtfully consider them if a patient
comes in. But at that time when I spoke to them, it was specifically not
their intent that we needed to ask everyone if they had one. Whether or
not you decide that these would become valuable for specific sub-types
of patients or not, I think that is something a local facility may
decide to do.

With that in mind it seems to me that we could make an analogy to other
groups of patients who we could foresee a large number of whom would get
into trouble, may lose decision-making capacity, and will have similar
decisions to face. My question is should we really be tailoring
treatment preferences to groups of patients as we go along? Take for
example a patient with advanced emphysema, who predictably will
encounter problems with ventilator failure. We would want to discuss
things about ventilators with him. Or, a patient with bad peripheral
vascular disease who predictably would develop a severe foot infection
at which time many patients lose decision-making capacity, it would be
nice to know ahead their feelings about amputation. So, I am not quite
sure if this isn't something that we should be thinking about or that we
already think about. Ideally, we use the treatment preferences portion
of our advance directives to tailor to the individual patient and their
medical condition.

**Dr. White:**

I guess you are asking whether we should have different flavors,
different brands of advanced care directives. Mental health, maybe
cardiovascular health, etc, etc. Is that the question you are proposing
to the audience?

**Dr. Berkowitz:**

I think so, and I think that we certainly do that to some extent already
as we care for our patients, but I am just wondering if people think
that is something that should be more structured or is it not necessary?
Any comments?

**Ken Adams, Ann Arbor, MI**:

I think we have an enormously difficult time getting the general
decision making stream or the sense of self-determination into the
record. It's always good to customize things and I could see that point,
but if you are asking, if we should make that more formalized, I
certainly think that would be problematic.

We have enough difficulty getting the general sense of advance
directives truly integrated into the care stream for patients. So, if we
start to get into 31 flavors of advance directives, we will have the
same problem that we have with resuscitation policies where there maybe
only one DNR or DNI order, but in practice people hang all sorts of
things on those orders in terms of qualifiers which make things more
difficult to the caregivers.

**Dr. White:**

Thank you for that response. Are there any other reactions to the
proliferation of advance care directives?

**Fran Cecere, RN, Syracuse, NY VAMC:**

Are you saying that we would use the same form that we do for the
regular advance directive to put the treatment preferences for
psychiatric on it?

**Dr. White:**

We really are not making a recommendation; we are raising a hypothetical
question. Does it make sense to ask about preferences for treatment in
the area of mental health? There are probably other dramatic areas of
health care intervention; Ken mentioned diabetes and the possibility of
amputation, where we would also want to elicit patient's preferences in
advance.

So the question becomes should we consider other types of advance
directives? So far, we have gotten kind of thumbs down reaction towards
that. But it's not really a recommendation but a hypothetical question
or inquiry.

**Ms. Cecere:**

The reason I am asking that question is lets say I had COPD and CHF and
I made some decisions and left some instructions as far as resuscitation
goes. Four years later I develop severe depression, and I fill out a new
advance directive that is for psychiatric problems. What happens to the
advance directive that I did 4 years ago that has to do with CHF? Does
one override the other?

**Dr. Berkowitz:**

Well you can certainly change your mind at any time, and I am assuming
that you had capacity when you filled out the second form. If the second
form did not address issues regarding resuscitation and the other things
that you had already commented on, I do not think that those previously
stated wishes would lose validity. So I think what you are saying is
that they would add to each other. If in the second form, you indicated
that you changed your mind about resuscitation and again if you had
capacity that certainly is well within your right and that first form
will be invalid.

**Marion (Mimie) Butterfield, MD, Durham, NC VAMC:**

I am a psychiatrist here and I was just going to comment that we
recently received funding from HSR&D Service to do a trial on
psychiatric advance directives here and collaboratively through National
Institute of Mental Health. I was going to comment on the earlier
comments on the multiple flavors of advance directives, of the DNR
verses the psychiatric advance directive.

I really think that circumstances under which they would fit are quite
different. That being end of life and physical advance directives verses
for psychiatric advance directives in the context of lost of decisional
capacity. I think they are unique and also in the way that a psychiatric
patient may actually have some thoughts and insight into what is helpful
for them in the context of psychosis or loss of decisional capacity. I
guess I am more of a splitter then a lumper on the intent of the
document that they are distinct from the physical ones.

**Ms. Prudhomme:**

The purpose of the advance directive and the reason for the VA form
combining two types of advance directives\--the living will with a
designation of a durable power of attorney for health care\--is that
individuals cannot interpret every circumstance they might be involved
in with respect to their future health. So the idea is to have patients
think about and express their wishes, ideally in addition to identifying
whatever preferences they may have, and to identify somebody to act as a
designated surrogate, have a discussion with that person about what
their preferences are, so that that person has some guidance down the
line.

Also, I do not have the advance directive policy in front of me, but I
believe that advance directives are supposed to be reviewed annually or
on admission to the hospital. So, you would not have a situation where
something is sitting around for 4 years without it being discussed with
the treatment team. Mental health advance directives are a new aspect
that is not really dealt with specifically in VA practices, but I would
think that if somebody is trying to execute that kind of an advance
directive that would be a good opportunity to compare it with a previous
one and ask them if there were any changes.

**Ms. Brown:**

I agree with Dr. Butterfield. I think the behavioral health advance
directive is rather unique. In relation to the 31-flavor concept, I tend
to want to simplify the form and make it more universal. I think the
issue about end-of-life decisions related to different diseases and
conditions that people have is a package issue and maybe we can make
some recommendation that people really attend to those issues that are
specific to their different disorders.

**Dr. Berkowitz:**

I agree with you completely. The current treatment preferences portion
of the form is in no way intended to be limited to preferences about
end-of-life or technology and could easily be used to document any
patient treatment preferences for behavioral health, mental health or
any other aspect of health care. So I think part of what has gotten us
into this, perhaps, is that we as a group, myself included, maybe
thinking in the box, of what we think should go in there, and what we
think should be addressed. And here we have an advocate for vulnerable
population saying hey, 'what about these other populations and what
about these other circumstances that are foreseeable'. And I do think
that we could perhaps apply what we have to those other groups.

**Mary Kundrat, RN, Des Moines, Iowa VAMC:**

We are making a presumption that there is a knowledge base that is very
detailed and not in doubt. If you look at advance directive treatment
preference discussions it is usually not by a physician. And I am not
sure we have the expertise to really think out of the box and provide a
wide variety of options.

**Dr. Berkowitz:**

One other way to look out of the box is to think that people who aren't
used to thinking about advance directives because they do not deal with
end of life issues, so perhaps the mental health professional should
start to think about advance directives as a tool that might be useful
to them even if they are not using it in the same way.

**Craig Rookey, PhD, Little Rock, AK VAMC:**

With a normal advance directive policy, the person who determines the
patient's level of decision-making capacity is usually a psychiatrist or
psychologist. With behavioral health advance directive, the patient
maybe having a treatment disagreement with his psychiatric or
psychologist, and I am curious if there is a recommendation as to who
should be determining the patient's decision-making capacity. Are we
leaving ourselves vulnerable if the same professional who is determining
the decision-making capacity is the individual with whom the patient is
having a treatment disagreement?

**Dr. Berkowitz:**

Certainly I would hope that there are due process procedures in place
for patients if they disagree with that or other significant decisions;
sometimes it might be a patient representative, perhaps an ethics
consult or perhaps there are other structures or processes in place to
avoid this problem. I do think that capacity determinations are made by
a wide variety of practitioners very often outside of the mental health
field. So there are times when people from mental health are brought in
on consultation to decide on things like that.

**Ms. Prudhomme:**

I just want to add that the determination of decision-making capacity is
not left exclusively to people in the psychiatric profession. It's
really a determination assessment of whether or not the patient can
understand the treatment that you are proposing to them and the risks,
benefits, and alternatives, and then if they could communicate a
decision back to you. It's not supposed to be based on whether or not
they agree with the provider.

**FROM THE FIELD**

**Dr. Berkowitz:**

Now I want to turn to our "From the Field" segment, where we take
comments from our listeners in the field on an ethics topic not related
to today's call. Please remember, no specific consultation requests in
this open format, but I invite you now to make your comments on other
ethics-related topics, or to continue our discussion on advance
directives for mental health care.

**Arnold Gass, San Diego, CA VAMC:**

Pharmacy sent me the following information a couple of weeks ago. They
had a situation in which they were presented with a prescription for
dispensing an emergency contraceptive call Prevent that is used as a
morning after pill. They wanted to know if they would need to have a
policy for those pharmacists who did not wish to fill these
prescriptions due to religious or ethical beliefs. So, I would like to
know if anyone faced this situation and how they handle it, and if not,
where do we go to get some answers regarding the ethics policy in area?

**Dr. Berkowitz:**

Well, actually I do think there are things already in VA policy on
provider rights of conscience and the conscience clause. I think it is a
very complicated question and I actually do think that would probably
best be handled by our consultation team. If you want to send us an
e-mail to VHA Ethics in the Outlook system, I think we would be able to
do that very interesting question justice.

**Lynne Rustad, PhD, Cleveland, OH VAMC:**

We do have a policy. In fact, it's mandated by JACHO. It's called staff
rights but actually it is a policy that is meant to protect the patient
when a staff member has conflict about care.

**Dr. Berkowitz:**

I think Lynne, most facilities do\--certainly all facilities
should\--have policies recognizing staff rights. I know VA as a system
does. So if you want to send me that electronically, I'd love to take a
look at yours, and I'll certainly consider whatever we know in our
response to the folks out in San Diego.

**Alice Beal, MD, VA NY Harbor:**

We were looking for some advance directives and policies in other
languages beside English. And I was wondering if we could have a
national area where we could look to see which hospitals have translated
their policies or their patient information on these things.

**Dr. Berkowitz:**

Alice, at the beginning of the call I made an announcement asking that
if any facility already has approved translations or information that
they are using on advance directives in other languages, I already asked
that they would forward them to us here at the Center. I will make sure
that you get a copy if we get anything.

**Linda Williams, MD, Little Rock, AK VAMC:**

My question is about the application of these mental health advance
directives. You have a patient who has a history of multiple admissions
for depression and past suicide attempts, he comes in with another
attempted suicide and this time he has on his person a directive saying
he does not want further treatment for depression. How would that
advance directive impact the care of this patient?

**Dr. Berkowitz:**

That really gets to the very nature of our recognizing that there are
situations where the practical nature of these documents will be
limited. And we should be up front with people in advance and tell them
that there are just times that we as a society and as a system will not
respect them. That's really a decision that as an organization and as a
society has already been made and should be consistent and transparent.

# CONCLUSION

**Dr. Berkowitz:**

Well, as usual, we did not expect to conclude this discussion in the
time allotted, and unfortunately we are out of time for today\'s
discussion. We post on our Web site, a very detailed summary of each
National Ethics Teleconference. So please visit our Web site to review
or continue today\'s discussion.

I will be sending a follow up email for this call that will include the
links to the appropriate web addresses for the call summary, the CME
credits, and the references referred to.

**FINAL THOUGHTS**

I would like to thank everyone who has worked hard on the conception,
planning, and implementation of this call. It is never a trivial task
and I appreciate everyone\'s efforts, especially Gladys White, Leland
Saunders, and other members of the Ethics Center and EES staff who
support these calls.

-   ***NEXT CALL***: Will be on **Tuesday June 24, 2003** from 12:00 to
    1:00 Eastern Time. The topic will be announced soon. Please look to
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    announcements.

-   I will be sending out a follow-up e-mail for this call with the
    e-mail addresses and links that you can use to access the Ethics
    Center, the summary of this call, the instructions for obtaining CME
    credits, and the references that I mentioned.

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