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Markkula Center for Applied Ethics

Ethical Tensions: Laws and Ethical Norms

Laws and Ethical Norms Modelled on “Physical” Illness.

Although there is increasing recognition that bifurcated conceptions of physical and mental health are scientifically incoherent, many prevailing legal and ethical conventions in healthcare developed presuming models of acute or chronic illness, with mental health challenges considered a conceptual aberration despite their actual high prevalence. Contemporary American bioethics developed coincident with the civil rights movement and was first framed as a patients’ rights movement. Historically the field developed as a reaction against an overly paternalistic medical profession perceived as failing to treat competent adults as such just because they were sick or lacked physicians’ scientific training. With this starting point, impaired patient decisional capacity seemed a deviation, and the foundational cases considered both ethically and legally were those in which a formerly competent patient became unconscious (such as the famous case In the Matter of Karen Ann Quinlan,1975). Movements urging patients to create advance directives, including appointment of preferred surrogate decision-makers (durable powers of attorney, in legal terms) invoked respect for autonomy as the rationale. The goal was to insure one’s wishes were followed if one became temporarily or permanently devastated by accident or disease. This ideal has proven difficult to actualize even in the kinds of cases for which it was envisioned. Significantly, the model itself does not well accommodate mental health conditions which may render patient wishes ambiguous, inconsistent, or dramatically variable during periods in which patients in retrospect might say they were relatively more or less “themselves.” 

Because much healthcare law developed on the civil rights model, in most jurisdictions mental and behavioral health care providers can only commit or treat a patient against his/her wishes if it is an emergency situation in which the patient is an immediate threat to him/herself or to others, unless he/she is a minor with parental consent or a dependent adult with a conservator. This emergency-only limitation on treatment can conflict with the moral duty to act in the general best interest of the patient if he/she could benefit substantially from intervention. It can also conflict with the moral duty to respect patient autonomy, if the health care provider believes the decline of treatment does not represent a truly autonomous decision because of the nature of the mental illness. At the same time, unchecked authority of providers to declare expressed wishes “non-autonomous” would pose great ethical dangers. Patients deemed unfit to make decisions about their care may have a court-appointed conservator. However, conflict can arise between the conservator, the patient, and the provider regarding the patient’s treatment plan. 

In response to these tensions, some mental health advocates recommend “psychiatric advance directives” for patients who have mental illnesses with known contours. For example, a patient with bi-polar disorder while in a stable period could write a psychiatric advance directive requesting that her health care team continue to provide their mutually agreed treatment plan if she goes into a manic period, regardless of conflicting directives or refusals she may give while in the manic phase. Or a non- minor young adult with schizophrenia who generally makes his own health decisions and does not wish to share health data with his parents could request that if he shows evidence of schizophrenic delusions, his parents be notified and be given temporary guardianship, and provided partial health history data limited to that deemed necessary for treatment of the schizophrenic episode. Currently about half of U.S. states formally recognize psychiatric advance directives and the others allow their development under general regulations for advance directives. Psychiatric advance directives do not render easy decisions about when to take coercive measures, but at their best they can simultaneously enable such decisions in advance of extreme emergencies, place restrictions on the scope of coercive powers, and encourage a team approach between providers and the patient that recognizes both autonomy-impairing potentials of the condition and strategies to maximize the patient’s personal autonomy. 

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