Health care proxies: Can they make mentally ill "Legally untreatable"
by DJ Jaffe
(This is not legal advice. Do not rely on it. Discuss with your lawyer and doctor.)
Health care proxies/advance directives are receiving a lot of attention among those who advocate for people with mental illness. But are they more likely to useful or harmful?
Health care proxies give someone else the ability to make decisions for you if you become incapacitated or incompetent to make your own decisions, as can happen to individiuals with serious mental illness, especially those who go off treatment.
Advance Directives are different. They don't give a person the right to make decisions for you, they directly inform people as to the treatments you do and don't want if you become incapacitated or incompetent.
Proponents argue that these can be used by persons with mental illness to help. They fill out a form while they are competent, directing what happens when they are not.
However, they are also being used to create a new class of patients: the legally untreatable. These are people with mental illness who signed an advance directive, or gave their proxy instructions saying that if they become incompetent to make their own decisions, they want no treatment at all.
Hence they become psychotic, institutionalized, and legally untreatable. Their proxy or advance directive bars treatment.
Arthur Fish, a brilliant Canadian Attorney weighs in on this:
His comments on Ulysses Contracts are interesting, but some have said that under our law Americans (properly) have no ability to waive future civil rights (ex. sign themselves into slavery). Another author (http://www.york.cuny.edu/yorkscholar/v2/puran/n_puran.pdf ) claims Ulysses contracts are on valid when both parties (the person who wrote it and the one who must administer it) have the same goal of recovery.
I personally think advocates for people with serious mental illness have to have a better understanding of the issues involved before becoming involved in any effort to expand the use of these documents. There is an upside. But for the most seriously ill, there is also a downside that must be considered.
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The information on Mental Illness Policy Org. is not legal advice or medical advice. Do not rely on it. Discuss with your lawyer or medical doctor. Mental Illness Policy Org was founded in February 2011 and in order to maintain independence does not accept any donations from companies in the health care industry or government. That makes us dependent on the generosity of people who care about these issues. If you can support our work, please send a tax-deductible donation to Mental Illness Policy Org., 50 East 129 St., Suite PH7, New York, NY 10035. Thank you. Contact firstname.lastname@example.org Contact Mary Ann Bernard, of counsel. Contact DJ Jaffe, founder http://mentalillnesspolicy.org.