National Ethics Teleconference

**National Ethics Committee (NEC) Report-**

**Advance Directives for Mental Health:**

**An Ethical Analysis of State Laws & Implications for VHA Policy**

**March 26, 2008, 1:00 -- 2:00 pm ET**

# 

# INTRODUCTION

**Dr. Berkowitz:**

Good day everyone. This is Ken Berkowitz. I am the Chief of the Ethics
Consultation Service at the 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 ethical concerns relevant to
VHA. 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

[CME credits]{.underline} are available for [listeners]{.underline} of
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To get a CME credit hour for participating in the conference call you
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please contact the Project Manager, John Whatley, PhD, at (205) 731-1812
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# 

# PRESENTATION

**Dr. Berkowitz**:

In today's call, we will discuss the February 2008 National Ethics
Committee Report on Advance Directives for Mental Health. The National
Ethics Committee (NEC), an interdisciplinary group authorized by the
Under Secretary for Health through the National Center for Ethics in
Health Care, produces reports on timely topics that are of significant
concern to practicing health care professionals. NEC reports are
intended to heighten awareness of ethical issues and to improve the
quality of health care, both within and beyond VHA.

For today's discussion, I am pleased to welcome:

Susan Bowers, VISN 18 Network Director

Kathy Heaphy, JD, General Attorney, OGC

William Van Stone, MD, Associate Chief for Psychiatry

Joining me from the Ethics Center is Michael Ford, JD, staff to the
National Ethics Committee.

**Dr. Berkowitz:**

Each NEC report describes an ethical issue, summarizes its historical
context, discusses its relevance to VHA, reviews current controversies,
and outlines practical recommendations. Ms. Bowers, could you begin
today's discussion by summarizing the ethical and historical background
for mental health advance directives?

**Ms. Bowers:**

I'd be happy to. Advance directives were originally developed in the
context of decisions regarding end-of-life care to give patients some
control over their own health care if they were to lose decision-making
capacity. Now, advance directives are also being promoted as a way to
enable patients with severe mental illness to retain control over their
psychiatric treatment if they experience a mental health crisis. Like
other advance directives, mental health advance directives or MHADS,
which are also called psychiatric advance directives, support patient
autonomy by allowing patients to note which particular interventions
they would prefer to receive or to refuse.

Advocates of mental health advance directives suggest that MHADs not
only respect patient autonomy and choice, but also may benefit patients
in other ways. For example, they suggest that using MHADs can strengthen
relationships between patients and mental health professionals and
increase patients' adherence to therapy, promote early treatment to
prevent mental health crises, decrease the need for involuntary
treatment and reduce hospitalization rates for psychiatric patients.

**Dr. Berkowitz:**

Ms. Bowers, where in this overall background does VA policy fit?

**Ms. Bowers:**

VA recently revised its national policy on advance care planning to
address MHADs^.^ The revised policy specifically mentions MHADs as tools
for patients who are at risk for losing decision-making capacity in the
future due to mental illness. It also provides an opportunity for
patients to document treatment preferences for mental health just as
they may document other types of treatment preferences---that is, on a
state-authorized advance directive form or on VA Form 10-0137. Thus
policy treats MHADs no differently than other advance directives for
health care.

**Dr. Berkowitz:**

If current VA policy already incorporates mental health advance
directives, what motivated the NEC to focus on ethical issues related to
MHADs?

**Ms. Bowers:**

There are advocates who suggest there be a separate type of advance
directive for mental health patients. They have recently raised
questions about whether VA policy on advance directives is adequate to
meet the needs of patients who receive mental health care in VA. The
National Ethics Committee report that we will discuss today considers
whether VA policy on advance directives adequately addresses the needs
of patients with mental illness.

**Dr. Berkowitz:**

How did the NEC go about evaluating whether current VA policy on advance
care planning meets the needs of psychiatric patients?

**Ms. Bowers:**

Many states have separate mental health advance directives that include
provisions that are not usually included in traditional advance
directives. In order to evaluate the adequacy of current VA policy, the
NEC analyzed ethically some of these distinctive provisions to see what
this analysis implies for VA policy. It is important to emphasize that
the NEC analyzed state mental health advance directives, not in their
own right, but as a way to evaluate the adequacy of current VA policy.
Here, as in other areas, VA policy takes precedence over state laws.

**Dr. Berkowitz:**

Dr. Van Stone, in order to introduce our ethical analysis of provisions
included in separate mental health advance directives, could you begin
by providing a general overview of how states may approach such
directives?

**Dr. Van Stone:**

Certainly. In many states, patients can use generic advance directives
to document preferences for psychiatric treatment. However, the language
that some advance directives statutes and forms use is better suited to
documenting preferences about end-of-life care than preferences for
mental health treatment. For example, unlike in VA, in some states the
advance directive only takes effect when the attending physician
determines that the patient has a "terminal condition" or is in a
persistent vegetative state. In addition, some states limit the degree
to which advance directives can be used to make decisions about mental
health care---for example, by limiting the ability of the health care
agent to make decisions for psychiatric treatment.

**Dr. Berkowitz:**

Dr. Van Stone, what steps have some states taken to address these limits
on the use of generic advance directives for patients with mental
illness?

**Dr. Van Stone:**

Fully half of all states have adopted separate MHAD statutes designed
for psychiatric patients who experience fluctuating decision-making
capacity, such as individuals with schizophrenia or bipolar disorder.
These statutes often include features that we do not find in traditional
advance directive statutes or current VA policy.

**Dr. Berkowitz:**

Dr. Van Stone, could you give examples of distinctive features that some
states include in MHAD statutes?

**Dr. Van Stone:**

Some state Mental Health Advance Directive statutes:

-   require that MHADs automatically expire after a certain period

-   place special restrictions on who may serve as witness

-   identify special circumstances under which clinicians need not
    follow a MHAD

-   require that clinicians assess decision-making capacity for patients
    completing a MHAD

-   allow activation of the MHAD before the patient loses
    decision-making capacity

-   restrict the conditions under which the patient may revoke the MHAD

**Dr. Berkowitz:**

Thank you, Ms. Bowers and Dr. Van Stone, for providing an introduction
to today's discussion. In the remainder of the call, we will analyze
these provisions from an ethical perspective. The goal is to examine
what this ethical analysis implies for current VA policy. More
specifically, is VA policy adequate in its current form to meet the
needs of persons with mental illness?

The first feature included in some state MHADs is automatic expiration.

Mr. Ford, could you elaborate on this provision?

**Mr. Ford:**

Sure, Ken. Ten states require that MHADs automatically expire after a
certain period, which varies from two to five years. When the directive
expires, a patient in these states must execute a new advance directive
for mental health treatment.

**Dr. Berkowitz:**

Do other advance directives automatically expire after a certain period?

**Mr. Ford:**

Automatic expiration is unique to MHADs; other advance directives remain
in effect until they are revoked or until they expire on a date directed
by the patient.

**Dr. Berkowitz:**

What ethical reasons do advocates for MHADs give for requiring that the
directive expire after a certain period of time?

**Mr. Ford:**

Advocates for MHADs argue that requiring patients to execute new
directives on a regular basis improves shared decision making;
encourages constructive dialogue with mental health professionals; and
helps to ensure that these directives continue to reflect patients'
preferences.

**Dr. Berkowitz:**

Mr. Ford, what ethical conclusion did the National Ethics Committee
reach regarding the provision for automatic expiration?

**Mr. Ford:**

From an ethical perspective, the NEC identified several problems with
automatic expiration. To begin, automatic expiration does not seem to be
the best tool to encourage ongoing dialogue about the patient's
treatment preferences because it places a unique burden on mental health
patients and treats them as an exception.

**Dr. Berkowitz:**

If automatic expiration were the most effective way to encourage such
dialogue between clinician and patient, this feature should apply
equally to all treatment directives, not just those for mental health
care.

**Mr. Ford:**

In addition, automatic expiration of the MHAD places a unique burden on
patients with severe mental illness that is not placed on other
patients: i.e., to keep track of when their advance directive expires
and take positive steps to keep them active. If the directive expires
while the patient believes that the document is current and active, the
individual may lose the opportunity to guide treatment if he or she lost
decision-making capacity.

**Dr. Berkowitz:**

If there were evidence to suggest that the preferences expressed in
mental health directives are more likely to change than preferences
expressed in other advance directives, automatic expiration might make
sense.

**Mr. Ford:**

We are not aware of any data to suggest that this is the case. Without
such evidence, to treat mental health patients as "exceptions" by
mandating automatic expiration of MHADs seems ethically unjustified. It
is especially important not to single out mental health patients
especially at a time when advocates are seeking to reduce the stigma of
mental illness and create parity for mental health care.

**Dr. Berkowitz:**

What does this ethical analysis of automatic expiration imply for
current VHA policy? Should VA advance directive policy be changed to
mandate automatic expiration of advance directives for mental health?

**Mr. Ford:**

No. For the reasons noted above, the National Ethics Committee concluded
that there is no compelling reason to treat mental health advance
directives differently from other types of advance directives on this
point.

**Dr. Berkowitz:**

VA policy treats all advance directives uniformly. Current VA policy
encourages ongoing communication between clinicians and patients about
the content of advance directives and also encourages patients to
regularly review the treatment preferences and goals for care that they
stated in their advance directive. Policy requires that VA primary care
providers review the content of the advance directive with the patient
at least every three years and more often if the patient is at high risk
of losing decision-making capacity.

**Mr. Ford:**

Under VA policy all advance directives remain valid until the competent
patient revokes them; patients are not burdened with the responsibility
of ensuring that their advance directive remains in effect.

**Dr. Berkowitz:**

Thank you, Mr. Ford. Witness restrictions are the second feature
included in some state MHADs. Ms. Heaphy, could you elaborate on this
provision?

**Ms. Heaphy:**

Advocates for mental health advance directives are concerned that these
directives might be used to coerce vulnerable patients to accept certain
types of treatment. They argue that patients may feel coerced by health
care professionals or family to choose certain treatment options if they
believe that they might otherwise be confined involuntarily or forced to
be medicated. Fears of coercion or undue influence have prompted 24 of
the 25 states with separate MHAD statutes (all except Montana) to
restrict who can serve as a witness for a MHAD.

**Dr. Berkowitz:**

Ms. Heaphy, could you provide examples of witness restrictions found in
some state MHAD statutes?

**Ms. Heaphy:**

Several state statutes prohibit members of the patient's family from
serving as witness. And many exclude members of the treatment team.

**Dr. Berkowitz[: ]{.underline}**

What is the typical role of the witness?

**Ms. Heaphy:**

Under most of these statues witnesses attest, among other things, that
the patient executed the MHAD voluntarily.

**Dr. Berkowitz:**

Are there empirical studies to suggest -- either that patients who
suffer from mental illness feel coerced into making certain specific
treatment choices or that the choice of particular witnesses has any
impact on the patient's decisions?

**Ms. Heaphy:**

No. The studies of perceived coercion that do exist focus on specific
interventions, such as electroconvulsive therapy or forced
administration of antipsychotic medication.

**Dr. Berkowitz:**

Are witness restrictions and concerns about undue influence unique to
mental health advance directives?

**Ms. Heaphy:**

No. Forty-four states also restrict who may serve as a witness for
general advance directives. VA policy requires two witnesses sign a VA
advance directive. Nonclinical employees of the VA treatment facility
are authorized to serve as a witness. Clinical employees are prohibited
from serving as a witness unless they are members of the patient's
family or are employees of the Chaplain Service, Psychology Service, or
Social Work Service.

**Dr. Berkowitz:**

What is the intent of VA policy regarding restrictions on who may serve
as a witness for an advance directive?

**Ms. Heaphy:**

The patient's treatment decisions may significantly affect those who
have strongly held beliefs about appropriate care, including doctors,
nurses, and other clinicians. The intent of VA policy is to protect
patients from undue influence by prohibiting these clinicians from
serving as witnesses for advance directives.

**Dr. Berkowitz:**

Ms. Heaphy, what does this discussion of the ethical reasons for witness
restrictions imply for current VHA policy?

**Ms. Heaphy:**

There is no clear evidence to indicate that witnesses to an advance
directive have a coercive effect on the patient. However, the National
Ethics Committee is concerned that the intent of VA policy may not be
fully realized in the case of patients completing a mental health
advance directive. In mental health, licensed clinical psychologists and
social workers often have primary responsibility for providing therapy
or directing and developing treatment plans mental health treatment.
Permitting these clinical employees to witness mental health advance
directives may present a conflict of interest and may make it difficult
for a patient to feel free to choose and document their own treatment
choices in an advance directive.

**Dr. Berkowitz:**

What does the NEC concern about possible undue influence in the
completion of mental health advance directives imply for current VA
policy? Should VA policy be changed to place special restrictions on who
may serve as a witness for a mental health advance directive?

**Ms. Heaphy:**

The Committee did not feel that was the case. However, the committee
urges that witnessing provisions of Handbook 1004.2, paragraph 9.b(1)(b)
be revised to prohibit [any]{.underline} clinical employee who is
providing medical or mental health treatment for a patient from
witnessing that patient's advance directive.

**Dr. Berkowitz:**

In addition to requiring automatic expiration and witness restrictions,
some state MHAD statutes Identify special circumstances under which
clinicians do not have to follow a MHAD. Ms. Bowers, could you elaborate
on what the National Ethics Committee refers to as "override
provisions"?

**Ms. Bowers:**

In the case of a traditional advance directive, clinicians must follow
the patient's documented preferences except under very narrow
circumstances such as when the patient's preferences fall outside the
acceptable standard of care or are not available within the health care
system, are medically ineffective, or are inconsistent with law. These
are the same circumstances under which VA clinicians would not be
required to honor the choices that a competent patient makes for current
treatment.

**Dr. Berkowitz:**

For the MHAD statutes in some states, how do the circumstances for
overriding the patient's documented treatment choices differ from the
narrow circumstances that traditional advance directives allow?

**Ms. Bowers:**

Seventeen states currently give clinicians greater leeway to override a
MHAD than a general advance directive. These same seventeen states
permit a clinician not to follow a MHAD when the patient has been
committed for inpatient treatment and in the event of "emergency" (which
most of the statutes do not further define). A few give clinicians even
greater latitude than this---e.g., Louisiana permits clinicians to
disregard a patient's previously expressed refusal of psychotropic
medication if the clinician deems the medication "essential."

**Dr. Berkowitz:**

Ms. Bowers, what ethical conclusions did the National Ethics Committee
reach regarding the override provisions included in some state MHADs?

**Ms. Bowers:**

The primary intent of advance care planning is to enable the patient's
treatment preferences to guide care when he or she is no longer able to
participate in decision making. The NEC concluded that allowing
clinicians significant latitude to override a patient's competent,
previously expressed preferences undermines this ethical intent. Special
override provisions for mental health patients undermine the role of
advance directives in promoting patient autonomy and self-determination
and, like automatic expiration, treat mental health patients as
exceptional.

This may be cause both ethical and legal problems. The sole federal case
on the subject is *Hargrave v. Vermont*. The court held that Vermont's
override law, which applied only to persons with mental health
disorders, discriminated on the basis of disability and therefore
violated federal law.

**Dr. Berkowitz:**

What override provisions, if any, does VA policy allow for patients who
are suffering from mental illness?

**Ms. Bowers:**

Under current VA policy, patients who complete a mental health advance
directive can be assured, like all other patients, that clear treatment
preferences for future care will be honored, with narrow exceptions as
noted above. If there is a disagreement between the treatment team and
the patient's surrogate on how to interpret the advance directive, VA
policy provides a mechanism to resolve the conflict. As a general rule,
the preferences that a patient expresses in a valid mental health
directive should be respected just like those that the patient expresses
in a general advance directive.

**Dr. Berkowitz:**

What about cases where the patient poses a risk to him/herself or
others?

**Ms. Bowers:**

Certainly safety comes first and appropriate steps must be taken to
protect the patient and others from harm, which may require overriding
the preferences expressed in an advance directive. However, clinicians
cannot automatically disregard the preferences that the patient
expresses in an MHAD, just because there is a psychiatric emergency or
the clinician decides that involuntary commitment and/or treatment are
essential.

**Dr. Berkowitz:**

Ms. Bowers, what does this ethical analysis of special override
provisions for mental health advance directives imply for current VHA
policy? Should VA policy identify special circumstances in which
clinicians need not follow a mental health advance directive?

**Ms. Bowers:**

No. The committee believes that clinicians should have no greater leeway
to override mental health directives than to override general advance
directives.

**Dr. Berkowitz:**

Thank you, Ms. Bowers, for discussing override provisions. In addition
to automatic expiration, witness restrictions, and override provisions,
some states also require that clinicians assess decision-making capacity
for patients completing a mental health advance directive. Dr. Van
Stone, could you elaborate on this requirement for capacity assessment?

**Dr. Van Stone:**

At present two states explicitly require that a mental health
professional make a clinical determination that a patient has
decision-making capacity in order to complete an MHAD.

**Dr. Berkowitz:**

Dr. Van Stone, what is the rationale for this requirement?

**Dr. Van Stone:**

Clinicians may be reluctant to follow MHADs if they question whether
patients had decision-making capacity at the time they completed the
directive. Surveys suggest that mental health clinicians would be more
likely to follow instructions when the advance directive form is
countersigned by a clinician who attests that the patient was competent
when the document was signed.

**Dr. Berkowitz:**

Do other advance directives require capacity assessment prior to
completion?

**Dr. Van Stone**:

No state requires capacity assessment by a mental health professional
for patients completing general advance directives. However, witnesses
to general advance directives are often required to attest that the
patient appears to be "of sound mind" (or similar language). But these
judgments are different from a mental health professional's formal
assessment of decision-making capacity. Like the vast majority of
states, VA does not require clinicians to formally assess the patient's
decision-making capacity for purposes of completing a mental health
directive.

**Dr. Berkowitz:**

Dr. Van Stone, what ethical conclusion did the National Ethics Committee
reach regarding capacity assessment?

**Dr. Van Stone:**

Again, the Committee believes that selectively requiring a capacity
assessment for MHADs would mean that the person who suffers from mental
illness is being treated as an exception without ethically justifiable
reasons for doing so. Typically, we do not require capacity assessment
for patients who wish to complete general advance directives. We presume
that patients have decision-making capacity and carry out formal
assessment only when the clinician has reason to be concerned that the
individual may lack capacity. In addition, most patients who complete
advance directives do so outside clinical settings and there is no
opportunity to assess their decision-making capacity.

**Dr. Berkowitz:**

Is there evidence to suggest that patients engaged in advance care
planning for mental health are more likely to lack capacity than
individuals with a history of Alzheimer's disease, stroke, or other
conditions that may impair decision-making capacity?

**Dr. Van Stone:**

Not to our knowledge. To require that, singles these patients out for
"special" treatment. It also creates a barrier to advance care planning
that other patients do not face and could discourage providers or
patients from working to complete an advance directive.

**Dr. Berkowitz:**

What does this ethical analysis of the provision for capacity assessment
imply for current VHA policy? Should VA policy be changed to require
that clinicians automatically assess decision-making capacity for
patients completing MHADs?

**Dr. Van Stone:**

No. The committee concludes that requiring formal capacity assessment
specifically for patients who wish to complete a mental health advance
directive would not be appropriate*.* This requirement is not consistent
with overall goals of promoting autonomy and empowering patients with
mental illness, of reducing the stigma associated with mental illness,
and of ensuring parity for mental health as a health care priority.

**Dr. Berkowitz:**

How does this conclusion take into account the surveys that suggest that
clinicians are more likely to follow mental health advance directives
when a clinician who has assessed the patient's decision-making capacity
prior to completion counter-signs?

**Dr. Van Stone:**

The National Ethics Committee acknowledges that some providers may be
concerned about whether a Mental Health Advance Directive represents a
patient's authentic treatment preferences. Therefore, the Committee
recognizes that patients themselves may wish to have their
decision-making capacity assessed at the time they complete an MHAD so
that a note attesting to their capacity may be incorporated into their
health record.

**Dr. Berkowitz:**

In addition to automatic expiration, witness restrictions, override
provisions, and capacity assessment, some state MHAD statutes allow
activation of the MHAD before the patient loses decision-making
capacity. Ms. Heaphy, could you elaborate on this early activation
provision?

**Ms. Heaphy:**

Sure, Ken. Early activation is one of the more controversial features of
some MHAD statutes. Advocates argue that patients who are approaching a
mental health crisis, but who have not yet lost decision-making
capacity, may make treatment choices that do not reflect their true
intent or their "true self." For example, patients with bipolar disorder
who are entering into a manic phase may not recognize that they are ill
or may refuse medical care.

**Dr. Berkowitz:**

How do those who advocate for early activation believe that this will
help such patients?

**Ms. Heaphy:**

Advocates believe that this would help patients like these to state in
advance how they wish to be treated and therefore receive more timely
treatment. In an effort to achieve this goal, six states allow patients
to designate a point before loss of decision-making capacity at which
the individual wishes the MHAD to be used as the basis of decision
making. In the remaining 19 states with separate MHAD statutes, early
activation does not apply and the directive is not activated unless the
patient is deemed incapable of making his or her own decisions.

**Dr. Berkowitz:**

What ethical conclusion did the National Ethics Committee reach
regarding early activation of MHADs?

**Ms. Heaphy:**

The NEC acknowledges that the patient may be in the best position to
judge, based on his or her own past experience, whether he or she is in
danger of losing capacity and is in need of mental health intervention.
However, the Committee thought that it could be a problem to allow the
patient to identify situations other than loss of decision-making
capacity to activate advance directives.

**Dr. Berkowitz:**

What particular ethical concern did the Committee have?

**Ms. Heaphy:**

The Committee was concerned that the early activation provision might
lead patients and clinicians to expect that that the treatment directive
(or a decision by the patient's health care agent) would prevail over
contemporaneous preferences expressed by a patient who has not yet been
determined to have lost decision-making capacity*.*

**Dr. Berkowitz:**

How does this discussion of early activation relate to current state
provisions for valid general advance directives?

**Ms. Heaphy:**

A number of states allow patients with decision-making capacity who have
valid general advance directives to ask others to make decisions for
them, guided by the directive. However, the patient who has not been
determined to have lost decision-making capacity can always override the
decision or the directive. A patient who has decision-making capacity
can always make decisions different from the preferences expressed in
his or her advance directive or from decisions made by the agent to whom
the patient delegated decision-making authority. This principle holds
equally for MHADs, as recognized even in those statutes that allow
patients executing such directives to define situations other than loss
of capacity as criteria for implementing the directive.

**Dr. Berkowitz:**

What does current VA policy say about the role of the patient in making
treatment choices different from those documented in his or her advance
directive?

**Ms. Heaphy:**

VA policy likewise upholds the principle that until and unless a patient
has been deemed not to have decision-making capacity, his or her current
treatment preferences should prevail over wishes stated in the patient's
advance directive. VHA Handbook 1004.2 specifically states that "an
advance directive is not to be used as the basis for decision making
while the patient has decision-making capacity. The existence of an
advance directive never precludes the requirement to discuss treatment
options with a patient who has decision-making capacity."

**Dr. Berkowitz:**

Are there ways other than early activation that the patient can
incorporate into the advance care planning process his/her knowledge of
how he responds in the early phases of a psychiatric emergency?

**Ms. Heaphy:**

The MHAD can be a valuable tool for discussing future treatment
decisions with the patient even if the patient's situation does not meet
the criteria under which the directive is to be implemented. Clinicians
can draw on the directive to remind patients who are in the early stages
of a mental health crisis of what they previously said they wanted as
part of a process of shared decision making.

In addition, when a patient who was previously able to make treatment
decisions now appears to be unwilling or unable to do so, it may be
evidence that the individual may have lost decision-making capacity.
Under VA policy, this kind of situation should trigger a clinical
assessment of decision-making capacity.

**Dr. Berkowitz:**

Are there additional ethical concerns that the National Ethics Committee
expressed about the early activation provision that is found in some
state statues?

**Ms. Heaphy:**

Allowing activation of the directive before loss of decision-making
capacity would single out patients who have MHADs for special treatment,
potentially reinforcing the stigma of mental illness and undermining the
goal of parity for mental health care.

**Dr. Berkowitz:**

Ms. Heaphy, what does this ethical analysis of early activation imply
for current VA policy? Should VA policy be changed to allow a patient to
specify a point prior to loss of decision-making capacity at which a
mental health advance directive becomes active?

**Ms. Heaphy:**

No. To the NEC, early activation seems unnecessary to achieve the goal
of supporting timely intervention in keeping with a patient's previously
expressed treatment preferences.

**Dr. Berkowitz:**

Thank you, Ms. Heaphy. The final provision in some state statues for
MHADs that we will discuss today is revocation after loss of
decision-making capacity. Mr. Ford, could you elaborate?

**Mr. Ford:**

Many clinicians are concerned about whether patients who have lost
decision-making capacity may revoke an advance directive for mental
health. In most states (36 out of 50) a patient may revoke a general
advance directive at any time, even if he or she has lost
decision-making capacity. In contrast, most states that have MHAD
statutes (18 out of 25) are more restrictive in that they only allow
revocation of MHADs if the patient has decision-making capacity.

**Dr. Berkowitz:**

What does current VHA policy say about when a patient may revoke an
advance directive?

**Mr. Ford:**

Like the majority of MHAD statutes, VA policy restricts revocation of
advance directives to patients who have decision-making capacity---even
for general advance directives.

**Dr. Berkowitz:**

What is the ethical reason for restricting revocation of advance
directives to persons who have capacity?

**Mr. Ford:**

In general, the choices that patients make and write down in advance in
a formal document are more likely to reflect the authentic values of the
patient than the choice of an incapacitated patient. We respect the
patient's autonomy when we honor decisions the patient made while fully
able to consider values and goals of care and the risks and benefits of
different treatment options.

**Dr. Berkowitz:**

Mr. Ford, what does this ethical analysis of when the patient may revoke
advance directives imply for current VHA policy? Should VA policy be
changed to make it harder to revoke a MHAD than a general advance
directive?

**Mr. Ford:**

No. The committee concludes that VA's current policy, that requires that
patients have decision-making capacity in order to revoke an advance
directive, is restrictive enough to protect the interests of all
patients.

**Dr. Berkowitz:**

I would like to thank Ms. Bowers, Mr. Ford, Ms. Heaphy, and Dr. Van
Stone for their participation as faculty on today's call -- in
particular, for describing how the National Ethics Committee analyzed
several provisions that can be found in some state mental health advance
directives and for discussing what this analysis implies for current VA
policy. In our view current VA policy, which incorporates MHADs into
advance care health planning overall, appropriately meets the needs of
patients with chronic, severe mental illness. We find many of the
provisions in state statutes pertaining to MHADs to be unwarranted for
VHA. Such provisions may even pose ethical problems, insofar as they
make exceptions for patients completing MHADs that do not apply to
patients completing general advance directives or limit the rights of
patients with mental illness. It is also important to reiterate that
here, as in other areas, VA policy takes precedence over state laws.

The National Ethics Committee believes that by addressing advance care
planning for mental health care in parity with general advance health
care planning, VA's current policy both meets the patient's needs and
avoids treating persons who suffer from mental illness as exceptions.
Thus the Committee concludes that, with the exception of clarifying the
language Handbook 1004.2 at paragraph 9.b.(1)(b) to more clearly express
the underlying intent of restricting who may serve as witness, no
changes in VA policy governing advance care planning for mental health
need be contemplated at this time.

**MODERATED DISCUSSION**

I'd like to hear if our audience has any responses to anything that
we've said, or any questions about the ethical and policy concerns
raised in today's discussion of advance directives for mental health.
Does anyone have anything to say?

**Dr. Kleespies, Boston:**

I believe you said that under VA policy that if there is substantial
risk to self or others with a mental health patient, an override of an
advance directive may be necessary. If that's correct, can the National
Ethics Committee give a little more guidance as to when that might
become effective?

**Dr. Berkowitz:**

Does anyone from the Committee want to answer that question?

**Dr. Kleespies:**

Let me just add, I think that typically we make a judgment about
imminence of risk, for which we use a general guideline that, in our
opinion, something very serious may happen in the next few minutes,
hours, or days. I don't know if that is necessarily the opinion of the
Committee.

**Dr. Berkowitz:**

I can tell you the way that I understand and think about this issue.
Patients can express their choices about things in care, but then there
are sometimes limits to when we will follow those choices. When it comes
to an assessment that a patient's behavior is putting them at risk, or
putting others at risk, that is the limit of when the patient could make
requests and that would change how we would react to the patient's
requests. And that is not just true for patients with mental illness,
that's true for all patients. So if a patient in the intensive care unit
with encepholopathy, instance, had said that they did not want to have
medical immobilization devices or restraints used, but the team felt
that there was no choice and that was the least restrictive way to
manage the patient, again, the patient's wishes at that time become
secondary to the need to protect his or her safety. And I think that we
extend similar thinking to patients with mental illness. Does that
clarify the issue?

**Dr. Kleespies:**

Yes, it's hard to judge sometimes in mental health where the patient
crosses that line.

**Dr. Berkowitz:**

All I can say is that this is an issue of clinical judgment. Throughout
our system we do practice least restrictive environments and we do
practice trying to respect patient's wishes as much as possible and I
hope that all our clinicians incorporate that general philosophy into
their practices.

**Dr. Van Stone, Associate Chief for Psychiatry (116A)**

I think it is a matter of clinical judgment. Sometimes a lot harder to
consider the individual case, rather than trying to generalize and come
up with something that makes sense because situations differ every time.

**Ms. Caballero, San Antonio, TX:**

I know that in Texas a general advance directive can be revoked without
regard to the declarant's mental state or competency. And you say that
the VA guidelines take precedence because they are federal, is that
correct?

**Ms. Heaphy, Office of General Counsel (023):**

That revocation provision is in the regulations, in Title 38 FR 17.32.
It is a policy decision reflected in our regulations and those
regulations have the effect of law. We require decision-making capacity
in order to revoke an advance directive.

**Dr. Berkowitz:**

Kathy, if you could send the link to these regulations to me, I will
include it in the follow-up e-mail to this call, so that everyone on the
call will receive it.

And again, and this is just my opinion, when I read about the provision
that some states allow mental health advance directives to be revoked,
even if the patient does not have decisional capacity, I was struck by
the inconsistency. If you know that a patient doesn't have capacity, any
patient, not just a mental health patient, to make a decision, and if
they have previously expressed wishes at a time when they were able to
make a decision, why would you listen to them when they didn't have
capacity over a time when they did have capacity?

**Ms. Caballero:**

Oh, certainly, and I agree with that, I'm just pointing out that the
state law says something different than the VA guidelines.

**Dr. Berkowitz:**

And again, as Ms. Heaphy said, all of VA's advance directive policies,
reflecting the effect of law, allow that a patient who does have
decisional capacity to make that decision can of course revoke their
advance directive at any time, but absent that, they can't.

**Ms. Caballero:**

Thank you.

**Dr. Maheswaran, New York, NY:**

I have a comment. In the medical advance directive it includes specific
treatment preferences for life-sustaining treatment. But the VA document
only specifies that mental health preferences can be documented in a
particular place. Why is it that the form does not include scenarios
that can help patients complete a mental health advance directive? It's
very open and it's hard for patients to really understand what it all
means.

**Dr. Berkowitz:**

Well, I think that the same argument could be made for an advance
directive for Parkinson's disease and an advance directive for emphysema
and an advance directive for diabetes, other conditions that are chronic
and progressive and can sometimes predictably lead to loss of capacity.
I think that it is up to the practitioners to realize that a patient is
at risk for certain things and to incorporate those things into an
advance directive. For example, a patient with end-state emphysema is at
a very high risk for being likely to need intubation and practitioners
should discuss specifically mechanical ventilation and things like that
with those patients. If a patient in the early stages of dementia is
very likely to lose his or her capacity, due to progression of dementia,
I think practitioners should discuss things that those patients are
likely to face, the same as they would Parkinson's disease or any other
specific illness. I do think that the onus falls on the clinician. That
is how I view it; I don't know whether any one else wants to comment.

**Dr. Hans, Ethics Center (10E):**

Ken, this is Sherrie Hans, the Deputy Chief Officer for the National
Center. Let me just add a little bit to what Dr. Berkowitz has said. We
did at the Center envision providing additional tools to patients and
clinicians for helping mental health patients in completing advance
directives. For those of you who are very familiar with our advance care
planning policy, you may have noted that we included many references in
the policy to an online program *Your Life, Your* *Choices* which is
supposed to be running through *My Healthe Vet*. We worked very closely
with the Mental Health office to develop a number of worksheets that are
part of that electronic program to help clinicians and patients go
through treatment preferences and be more specific in the information
that they would include in their advance directive. We're still working
with our friends in the Office of Information to be able to complete the
process of getting that information online and making it available to
the clinicians and we continue to hope that that will occur this fiscal
year.

**Dr. Berkowitz:**

So thank you for pointing out, Dr. Hans, that there are other tools on
the way for mental health patients and for all patients to help them
complete advance directives.

**Mr. Thompson, Canandaigua, NY:**

I'm a registered nurse in Network 2 at the Canandaigua Medical Center
and we have actually just initiated the availability for veterans in
Network 2 of the New York State Mental Health Advance Directive.

**Dr. Berkowitz:**

I'd be happy to work with you specifically through an Ethics
Consultation if you would like, but I would advise that you take a look
at your policies, take a look at the national policy, and make sure that
that your local policies are in accord with the national policies, which
again reflect the strength of federal laws and regulations. So if you
have specific questions about that after you review what you are doing,
please feel free to get in touch with us and you can do that through an
e-mail to vhaethics on the Outlook system.

**Mr. Thompson:**

Thank you.

**Chaplain Gillespie, Roseberg, ORE:**

Are there going to be any information on the follow-up on the national
website to this call that would give links to examples of mental health
advance directives in various states or forms that other VA facilities
may use?

**Dr. Berkowitz:**

In the National Ethics Committee Report, I think that there are
extensive references. I doubt that we'll post them on our follow-up
because, quite frankly, we don't think that we want people to be using
them. We want people in our system to be using the VA advance directive
form which, again, for all the reasons we listed, we think is the
ethical way to go to meet the needs of all of our patients. One thing
that also wasn't mentioned is that by combining the mental health
component of the advance directive for those patients with the rest of
the advance care planning process, you ensure that the patients with
mental illness also consider those other issues that all patients should
consider with respect to their care planning. So another advantage of
the current advance directive form is that it meets all the needs of the
patients with mental illness, not just the mental health-specific needs.

We are moving to the last few minutes of the call. I'd like to open up
for one or two more questions, but also get to the "From the Field"
section and ask people if they have anything else on their mind before
we close.

**FROM THE FIELD**

**Ms. Williams, Charleston, SC:**

I'm an inpatient social worker at the Charleston VA. I just wanted to
know where I can obtain an advance directive for mental health because I
usually just use the general advance directive and I wasn't aware that
there was a separate one.

**Dr. Berkowitz:**

There isn't a separate one. We want people to use the VA Form 10-0137,
but to recognize under the Additional Preferences, section III B under
the Living Will section, that those additional preferences can in fact
reflect treatment preferences with respect to mental health just like
they can reflect any other treatment preferences. Again, what I hope is
that mental health providers take special care with their patients to
envision scenarios that would be relevant to those cases and to make
sure that they document any relevant preferences on that existing
Additional Preferences section in Form 10-0137. So thank you for
pointing that out and I hope I clarified that.

**Michael Ford, Staff to the National Ethics Committee (10E):**

This is Michael Ford. Under current VA policy, patients can also attach
separate paper with preferences.

**Dr. Berkowitz:**

Right. So any relevant preference can be on that form or attached
separately. We do want to know people's preferences; we just don't think
that it should require a separate form for all the reasons we have
talked about today.

**CONCLUSION**

I'd like to take the last minute of the call to thank everyone who
worked hard on the development, planning, and implementation of the
call. It is not a trivial task and I appreciate everyone's efforts,
including the members of the Ethics Center and the EES staff also who
support these calls. The National Ethics Committee is also grateful to
individuals who contributed their expertise in reviewing drafts of this
call. In addition to our faculty, Susan Bowers, Michael Ford, Kathleen
Heaphy, and William Van Stone, there was also Bradley Karlin, Director
of Psychotherapy Programs (116).

I just want to tell everyone that you can find on our web site
vaww.ethics.va.gov all of the summaries of prior National Ethics
Teleconferences. They are all archived there and if you look in your
Outlook e-mail, you will receive details about when the summary of this
call goes up; the reference that Ms. Heaphy is going to send; and
announcements for upcoming National Ethics Teleconferences. We are not
scheduled to have a call in April. The next call is scheduled for
Wednesday, May 28^th^ from 1:00-2:00 ET and again, we will be sending
out the follow-up e-mail. Let us know if you or someone you know doesn't
receive our e-mails and you want to be put on our list. Please also let
us know if you have suggestions about topics for future calls or any
questions and again, our e-mail address is <vhaethics@va.gov>.

So thank you everyone, and have a great day!

**REFERENCES**

*Advance Directives for Mental Health: An Ethical Analysis of State Laws
& Implications for VHA Policy*. National Ethics Committee Report.
February, 2008.

VHA Handbook 1004.2. *Advance Care Planning and Management of Advance
Directives.*