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Psychiatric Advance Directives: Worth the Paper They’re Printed On?

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Medical advance directives provide a way for people to be free of unwanted medical treatments if they should become incompetent. There has been a double standard, however, between advance directives that refuse ordinary medical care and those that refuse psychiatric care. A recent decision from the Second Circuit holds that such discrimination violates the Americans with Disabilities Act, at least concerning involuntary non-emergency psychiatric medication. Unfortunately, many still hold that the police power allows forced psychiatric care when a person is not a danger to others, but only wishes to die.

1. The Right to be Free from Unwanted Treatment

Generally speaking, people have a right to be free from harmful or offensive physical contact, especially unwanted intrusions into their bodies. When someone intentionally causes harmful or offensive contact without consent, the person receiving the unwanted contact may sue for battery. In her concurring opinion in Cruzan v. Director, Missouri Department of Health, Justice O’Connor notes that, in other contexts, bodily intrusions raise due process and Fourth Amendment concerns, suggesting a related constitutional right to be free from unwanted medical treatment. Specifically, she states that

The State’s imposition of medical treatment on an unwilling competent adult necessarily involves some form of restraint and intrusion. A seriously ill or dying patient whose wishes are not honored may feel a captive of the machinery required for life-sustaining measures or other medical interventions. Such forced treatment may burden that individual’s liberty interests as much as any state coercion. . . . The State’s artificial provision of nutrition and hydration implicates identical concerns.

While the majority in Cruzan do not find that there is a constitutional right to surrogate or advance decision making by an incompetent person to refuse treatment, all fifty states and the District of Columbia have enacted laws allowing advance or surrogate decision-making through living wills, also known as medical advance directives.

Medical advance directives are a way for people to specify what treatments they do and do not wish to receive in the event that they become incapacitated. Typically, medical advance directives focus on end-of-life care. A typical provision from an advance directive comes from the California statutory medical advance directive:

I do not want my life to be prolonged if (1) I have an incurable and irreversible condition that will result in my death within a relatively short time, (2) I become unconscious and, to a reasonable degree of medical certainty, I will not regain consciousness, or (3) the likely risks and burdens of treatment would outweigh the expected benefits;

or, alternatively,

I want my life to be prolonged as long as possible within the limits of generally accepted health care standards.

States generally enforce medical advance directives; for instance, the California Probate Code allows an individual to sue a health care provider who intentionally violates his medical advance directive for $2500 or actual damages, whichever is greater, plus attorney’s fees.

Unfortunately, much of the power of a medical advance directive is removed by “conscience” provisions, such as California Probate Code 4734, which provides in part that

A health care provider may decline to comply with an individual health care instruction or health care decision for reasons of conscience.

A conscientious objector must notify the patient and arrange transfer as soon as possible to a health care provider who will comply with the advance directive. Meanwhile, he is to provide “continuing care” to the patient – in many cases, exactly what the patient hoped to avoid by creating an advance directive.

2. Psychiatric Advance Directives and the Americans with Disabilities Act

Psychiatric advance directives contemplate future psychiatric care and specify which treatments a person consents to or refuses. Psychiatric advance directives are much less accepted than ordinary medical advance directives, as forced psychiatric treatment is widely considered to be unquestionably ethical, even if the patient refused it in advance while competent. Even where existent, psychiatric advance directives are typically laughably minimal in scope. A typical psychiatric advance directive provision, published by Protection and Advocacy, Inc. of California, provides in part:

If during my admission or commitment to a mental health treatment facility it is determined that I am engaging in behavior that may make emergency intervention necessary, I prefer the following choices to help me regain control:

  • Provide a quiet private place
  • Have a staff member of my choice talk with me one-on-one
  • Assist me with telephoning a friend or family member
  • Allow me to go outside
  • Provide me with materials to journal or do artwork

Other common provisions include the refusal of certain medications and the refusal of electroconvulsive therapy.

What I find striking about the above list (aside from its infantilizing nature) is the level of coercion it assumes and accepts as part of treatment (“allow” me to go outside?). Nevertheless, states have often refused to enforce even such minimal provisions.

In 1999, a schizophrenic Vermont woman named Nancy Hargrave executed a psychiatric advance directive refusing “any and all anti-psychotic, neuroleptic, psychotropic or psychoactive medications,” and electroconvulsive therapy. She then sued to ensure that her directive would be enforced. The state of Vermont argued that it was free to involuntarily medicate Hargrave in violation of her advance directive because of a state law that allowed for forcible medication of “mentally ill” people who posed a danger to themselves or others – even in non-emergency situations. Hargrave argued that the state policy of refusing to honor the advance directives of people with mental illnesses, but not others, violated the Americans with Disabilities Act. The federal trial court agreed with Hargrave, and the state appealed.

In 2003, the United States Court of Appeal for the Second Circuit ruled that Vermont’s discriminatory policy – which applied only to certain mentally ill people – violated the ADA. Hargrave v. State of Vermont, 340 F.3d 27 (2d Cir. 2003). (In 2005, the plaintiffs were granted their attorney’s fees.)

It is important to note that this is a very limited victory for psychiatric advance directives. That said, the trial court’s position is very promising:

The very nature of a [medical advance directive] is to ensure that individuals, competent at the time of its creation, are protected from unwanted medical interventions at a time when they are no longer competent. For individuals facing physical illness and disability, their ability to preclude certain life saving treatment to which they might be subjected at a later point when they are not competent to voice a decision is protected by a previously executed [directive]. There is no question that at the time a particular medical treatment is at issue, an individual’s physical illness might be terminal without the treatment. Thus, a prior decision to forego medical intervention necessary to sustain life is permitted for the physically ill or disabled, even though at the time of the incapacity, rejection of the treatment could be seen as posing a “danger to themselves.” In fact, that is the very purpose behind legislation permitting individuals to execute prior health directives such as Vermont’s [directive]. While there is no provision in Vermont law to compel an incompetent physically disabled individual to undergo treatment in violation of a [medical advance directive], even if that treatment is needed to save the individual’s life, the State would have the Court declare that because a mentally ill individual at a particular point in time poses a danger to herself, her prior wishes to forego medical treatment calculated to abate the danger can be ignored. Hargrave v. State of Vermont, No. 2:99-CV-128 (D. Vt. Jan. 11, 2000). [Bolded emphasis mine; italics in original.]

The Second Circuit likewise focuses on dangerousness to others as the only relevant exception to ADA protection – not danger to oneself – but its language is not nearly as liberty-affirming as that of the trial court.

3. Suicide and the Police Power

An important challenge to the right to die is the idea that the police power of the government applies to the prevention of suicides. Justice Scalia has been a great defender of this idea, as in his concurring opinion in Cruzan. Scalia’s position is that not even a competent person has a Constitutional right to be free from bodily interference if that bodily interference is directed toward preventing his suicide. He writes:

It is not even reasonable, much less required by the Constitution, to maintain that, although the State has the right to prevent a person from slashing his wrists, it does not have the power to apply physical force to prevent him from doing so, nor the power, should he succeed, to apply, coercively if necessary, medical measures to stop the flow of blood. The state-run hospital, I am certain, is not liable under 42 U.S.C. § 1983 for violation of constitutional rights, nor the private hospital liable under general tort law, if, in a State where suicide is unlawful, it pumps out the stomach of a person who has intentionally taken an overdose of barbiturates, despite that person’s wishes to the contrary.

True to form, Scalia provides no hint of an ethical argument justifying his position; he merely repeatedly refers to the fact that suicide was a felony at common law. He specifically states that, under the Constitution, “the power of the State to prohibit suicide is unquestionable.” What is suicide to Justice Scalia? Actually, it includes not only what we would normally consider acts of suicide, but also ordinary advance directives calling for the removal of life support if a person will never regain consciousness.

Scalia is, of course, the same enlightened figure who defended torture because he thought a character on a television show was doing it right. Intellectual giants like Justice Scalia remain on our bench and continue to make decisions that affect the lives – and deaths – of all of us lesser creatures.

Suicide Rate Is Highest Just After Psychiatric Hospitalization

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If psychiatric hospitalization is so effective, why is the suicide rate highest immediately after release from the hospital?

A massive study (1,185,727 patient-years) published in January (“Higher-risk periods for suicide among VA patients receiving depression treatment: Prioritizing suicide prevention efforts,” M. Valenstein et al., Journal of Affective Disorders, Volume 112, Issues 1-3, January 2009, Pages 50-58) on a military veteran population being treated for depression found that suicide rates were dramatically elevated immediately following a psychiatric hospitalization.

The base suicide rate of the population was found to be 114 per 100,000 person-years. Clearly, the depressed VA patients are at a much higher suicide risk than the general population of the United States, for which the suicide rate is estimated at only 16.7 per 100,000 person-years. But the suicide rate for these depressed veterans shot up to 568 per 100,000 person-years during the 12 weeks following a psychiatric hospitalization – five times the already high base rate for the non-hospitalized depressed veterans, and 34 times that of the overall American suicide rate.

But if hospitalization were actually effective in “treating” suicidality, wouldn’t we expect the suicide rate to be quite low after a hospitalization?

One problem with this line of thinking is that we might expect only the most seriously suicidal patients to be hospitalized at all. One hypothesis is that hospitalization is effective in reducing suicidality, and that the suicide rate of hospitalized depressed veterans would have been much higher if they hadn’t been hospitalized. No study I am aware of attempts to compare the suicide rates of patients who meet criteria for hospitalization, but who are randomly assigned to be or not to be hospitalized. Given the widespread faith in hospitalization as a suicide treatment mechanism, to conduct such a study would probably be considered a breach of professional ethics toward the non-hospitalized group.

However, in the absence of data from such a study, I think the alternative hypothesis needs to be considered: that hospitalization is so horrible, demeaning, and above all ineffective, that it does nothing to prevent suicides and may actually increase one’s resolve in that direction. Far from showing caring and compassion, forced psychiatric hospitalization demonstrates to the patient that he is a prisoner. For a prisoner, there is a clear method of escape. Yes, there are people who claim to have benefited from involuntary psychiatric hospitalization, just as there are people who claim to have benefited from childhood beatings and from those wilderness camps they send bad kids to. But there are also people who have suffered involuntary hospitalization and found it to be a life-changing, demeaning experience. In fact, I think we must be suspect of the “glad it happened” group. The psychological defense mechanism of denial, the discomfort of cognitive dissonance, contribute to people interpreting past events with unwarranted optimism. As long as you can convince yourself that the involuntary hospitalization was good for you, you don’t have to admit to yourself what an insult to your dignity was done to you.

Sadly, the authors of the study are using the results to recommend yet more coercive practices. What is really needed is more intensive “treatment” following a hospitalization, they say – or a “firm connection to outpatient services,” in the Orwellian words of the study’s authors.

For those whose link to the study is gated, here’s a Washington Post summary of the study: “With Depression, Vets Face Higher Suicide Risk.”

Update: Commenter Jessa continues the discussion on coercion at her site, Made with Awesome.

Update: Zarathustra responds to my arguments here.

Update: Jim adds to the discussion here and here.

Written by Sister Y

January 12, 2009 at 10:09 pm

Depression, Cognition, and Value

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Loss of appetite, often coupled with weight loss, is commonly seen in what our medical system defines as depression. It is a diagnostic criterion for a Major Depressive Episode under the DSM-IV. (A Major Depressive Episode is, in turn, the building block for a diagnosis of Major Depressive Disorder.) Spefically, Criterion A3 for Major Depressive Episode is (in the amusingly vague, catch-all language of the DSM-IV):

significant weight loss when not dieting or weight gain (e.g., a change of more than 5% of body weight in a month), or decrease or increase in appetite nearly every day.

(Interestingly, anorexia or significant weight loss, but not weight gain, is a diagnostic subcriterion for what the DSM-IV calls “melancholic features,” a sort of diagnostic hanger-on to Major Depressive Disorder that requires either a loss of pleasure in almost all activities, or a loss of reactivity to usually pleasurable stimuli. People exhibiting melancholic features are less likely to respond to placebo, says the DSM-IV.)

Some depressed people, the DSM-IV tells us, overeat, and some fail to eat enough. For simplicity, and to illustrate an aspect of depressed cognition, I will consider in this essay only the depressed people whose appetite is reduced.

Why do some depressed people not eat? Is there some mysterious “chemical imbalance” that causes both depressed feelings and reduced appetite (except that the same imbalance causes increased appetite sometimes)? Instead of reaching for a possible explanation why someone might not eat, let’s consider the opposite question: why do non-depressed people eat?

A model of the eating-related introspection of a non-depressed person might look like this:

  1. The person feels hungry (or, perhaps more commonly in wealthy countries, the person feels bored).
  2. The person imagines various options for food.
  3. The person picks something that triggers pleasurable associations, based on a hope that eating will produce pleasurable sensations (satiety, aesthetic interest).
  4. The person eats.

People eat to relieve hunger or boredom, in a sense, but the cognitive path followed by a person in order to eat must have some basis in hope – hope that eating will make the person feel better, hope that the action of acquiring food, chewing, and swallowing will be worth it.

A model of the eating related introspection of a depressed person, on the other hand, might look like this (and I’m taking this from introspection, and exaggerating a bit for clarity):

  1. The person feels hungry or bored.
  2. The person, being depressed, also feels miserable.
  3. The person imagines various options for food.
  4. While the person remembers food relieving hunger, the person, if very depressed, also remembers that food does not relieve misery.
  5. No imaginary food seems that much better than any other, since all will ultimately lead to misery (by failing to relieve the misery).
  6. Why bother?
  7. The person may often fail to eat.

Failure to eat by depressed folks has nothing to do with body image, as in eating disorders. It merely has to do with a lack of hope for getting relief from food – and, ultimately, a lack of recognition of the value of eating (distinct from an intention to starve oneself to death).

Despite some evidence for depressive realism, there is some sense in which we might say that the cognition of severely depressed people may be impaired – especially their decision-making capabilities. We might easily say that a person who can’t decide what to eat, and so fails to eat, is indeed cognitively impaired, rather than being especially wise. (I feel rather silly when it happens to me.) In fact, “diminished ability to think or concentrate, or indecisiveness, nearly every day” (emphasis mine) is DSM-IV Criterion A8 for a Major Depressive Episode.

Recent work in cognitive science has explored the role that emotion plays in decision-making. For example, in “The role of emotion in decision-making: Evidence from neurological patients with orbitofrontal damage,” Brain & Cognition 55 (2004) 30–40, Antoine Bechara reports that

The studies of decision-making in neurological patients who can no longer process emotional information normally suggest that people make judgments not only by evaluating the consequences and their probability of occurring, but also and even sometimes primarily at a gut or emotional level. Lesions of the ventromedial (which includes the orbitofrontal) sector of the prefrontal cortex interfere with the normal processing of ‘‘somatic’’ or emotional signals, while sparing most basic cognitive functions. Such damage leads to impairments in the decision-making process, which seriously compromise the quality of decisions in daily life.

That decisions, in humans, are based on emotion is an empirical fact, to the extent that there is evidence for it. People with impaired capacity to experience emotion are not perfect rational calculators; their decisions appear very strange, and often poor. But that is a mere description of our meat-based decision-making apparatus. It says nothing as to how the best decisions might be made – or, most importantly, what characteristics distinguish the best decisions. To specify that, we need to know what is valuable – for values must be the ultimate criteria for which decisions are good, and which poor. Why do anything? Here psychology must collide with philosophy.

To the extent that a depressed person does not make a normal decision – including the silly case of failing to eat (for lack of a compelling reason, not for lack of resources) – the depressed person is merely revealing his values. To claim that the depressed person is cognitively impaired in a way that would justify intervention into his decisions is to say that his values are incorrect, or that he is not justified in pursuing his values, and should be required to pursue our values instead. We cannot, I think, ethically intervene (force-feed) when a hunger striker decides that she values, say, women’s suffrage over the continued satisfaction of her hunger, even unto death. When a depressed person concludes that nothing is valuable, except perhaps an end to suffering, we are in no better ethical position to intervene – either to force-feed, or to withhold the means for suicide.

Depressed people who overeat are consistent with my model. These people – less severely depressed, perhaps – have not completely given up on food as a source of relief, and may in fact clearly remember receiving positive feelings as a result of food. Therefore, instead of triggering the “eat” response every time one is hungry or bored, the overeating depressed person triggers it in addition every time he feels miserable, leading to increased eating and perhaps weight gain. As I pointed out above, increased appetite is not a feature associated with “melancholic features,” which might, in a vague sense perceptible from the DSM-IV report on response to placebo, indicate a more severe type of depression. This is consistent with overeaters being less “hopelessly” depressed than undereaters.

Written by Sister Y

June 2, 2008 at 5:57 am

Is Suicide Illegal?

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Aside from the question, “should a government be able to force people who wish to die to remain alive?” – that is, “should suicide be illegal?” – there is the question as to whether suicide really is illegal, in a meaningful sense. Many people who haven’t devoted much thought to the question don’t understand how a suicide prohibition might work (all charming quotations from All Philosophy):

how the hell do you plan to punish the people if they did it right they’d be FUCKEN dead!!! You can’tr do anything; even if it was illegal people, like me, would think about it and many do it anyway. It would be a waste of time and paper!

How could someone possibly be charged for killing themselves. I almost laugh seing the scenero of a trial. Whats gonna happen, they give someone who attempted suicide the death peanelty?

I don’t think it really matters, I mean if you are really serious about killing yourself, you’ll make sure you get the job done thus making the legality of it moot.

And my personal favorite, which sums the position up most beautifully:

how can they prosecute you when you’re dead?

It’s true – it’s impossible to really criminalize suicide, in the sense that if a person manages to successfully commit suicide, he or she is beyond the reach of the criminal justice system. But there are several ways, beyond a criminal penalty imposed on a successful suicide, that a genuine suicide prohibition is enforced.

First, the most reliable, painless methods for committing suicide are widely criminalized or at least restricted. These restrictions certainly function as prohibitions on suicide. If a would-be suicide cannot obtain a gun or appropriate medication, he or she is stuck either using a much more painful, much less reliable method, or, if he or she is not willing to do so (cut arteries or hang oneself, for instance), he or she is effectively prohibited from committing suicide.

Second, the act of assisting someone to commit suicide – even a competent adult who desperately wants to die – is widely criminalized. Those assisting terminally ill relatives in killing themselves are even routinely prosecuted for murder. This especially includes those with access to the best suicide methods, namely doctors.

Third, if a person attempts suicide but is discovered before he or she dies, he or she will be rushed to the hospital and treated, even against his or her will as stated in a medical advanced directive. The failure to respect the wishes of a suicide to refuse medical treatment functions as a legal prohibition. Some patients survive suicide attempts, only to live with severe brain damage or disfiguring physical injuries for the rest of their lives, especially if they suffer such severe injury that they are no longer practically capable of committing suicide. This is a risk of committing suicide under our current system.

Finally, there are penalties for committing suicide, such as the fact that life insurance policies may exclude suicide as a cause of death for which they must pay the decedent’s family a benefit. This focus on suicide as a decedent’s rational choice, which may respond to penalties, fails to square with the legal position underlying the forced resuscitation of suicide victims. Mandatory resuscitators (and those who support forced hospitalization for failed suicides) must hold the position that a suicide’s refusal of medical treatment is invalid, because he or she was necessarily mentally incompetent, and therefore unable to make rational decisions. However, the refusal of life insurance payouts to families of suicides relies on the assumption that the suicide is in rational control of his or her death, so that either it is unfair to expect the insurance company to pay, or the potential suicide will respond to the disincentive of no insurance payout in deciding whether to commit suicide. The positions are inconsistent. If suicide were really the result of mental incompetence, and the end of a sort of disease process, it would not be fair to exclude the families of suicides from life insurance benefits, any more than the families of cancer victims.

The Myth of the Hospital

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I have been unlucky enough to be the guest of two different psychiatric hospitals. In addition, I have worked in nine psychiatric hospitals in a professional capacity. Most people, even professional psychiatrists, have a rather naive view of what happens in a mental hospital. Private psychiatrists who spend most of their time treating private patients for depression and anxiety may have very little experience with a real psychiatric hospital. Ordinary people may get their views of psychiatric hospitals from books and movies, such as the extremely optimistic “Girl, Interrupted,” during which a forced psychiatric patient rediscovers her joy in life while receiving a great deal of individual therapy and developing relationships with other inmates.

The reality of the psychiatric hospital is, unfortunately, much bleaker than even popular culture would lead us to believe. The hospital is a good place for low-functioning people with thought disorders or severe personality disorders to get stabilized on their meds. The hospital is no place for a high-functioning depressive.

What could you expect if you were involuntarily hospitalized? First, don’t expect for there to be people like you around. Most people involuntarily hospitalized are the aforementioned low functioning folks with thought disorders (like schizophrenia) and severe personality disorders (like borderline personality disorder). “Low functioning” means that these people will mostly have a hard time engaging in normal activities of daily living, like washing themselves, feeding themselves, and having a conversation. You will share a room with one or more of these people.

You won’t get individual therapy (one-on-one talk therapy). It’s too expensive, and not very effective for the hospital’s normal clientele, those low functioning folks with thought disorders. The usual plan for low functioning people with thought disorders is to “stabilize them on meds” – they come in psychotic, they are given antipsychotic medication for a while, and their psychosis disappears. (Medication may be forced in most states. Some states require a hearing before forced medication may happen; these are generally rubber-stamp proceedings.) This process has a very high success rate for low functioning people with thought disorders; individual therapy is not seen as effective or necessary.

Generally, hospitals try to apply the stabilize-on-meds approach to high functioning depressives, with mixed results. As mentioned above, individual therapy is not available. Instead, expect mandatory “group therapy.” Group therapy, in a private, outpatient setting, is often interesting and productive, given a group of intelligent, high-functioning, thoughtful people. You will not find that in a hospital. Instead, you will find yourself in group therapy with that same group of low functioning people with thought disorders that you’ve been rooming with and eating with and smoking with during your stay. Often, group therapy takes the form of practicing activities of daily living – say, writing a letter, or washing oneself. This would be very helpful for a low functioning person with a thought disorder; it is humiliating and harmful for a high functioning depressive.

You may meet with a doctor once or twice during your stay. The doctor does not want to talk to you. The doctor wants to know if you are tolerating your meds, and if you have figured out how to answer questions about your suicidal intent correctly, so that you may be released. Most suicidal high functioning depressives quickly figure this out, and answer that they feel much better, that the meds are working fine, and that they have no further suicidal ideation.

The stabilize-on-meds approach for depressed patients is especially ridiculous, given that anti-depressant medications don’t work any better than placebos. Given that the hospital doesn’t help the high functioning depressive, except to medicate him or her, the purpose of the hospital in this context becomes clear: it is a prison. Hospitalization doesn’t help people become non-suicidal. It merely teaches the high functioning depressive to make sure he or she succeeds the next time he or she attempts suicide. And never to be honest with a doctor again about suicidal ideation.