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:

“This is the exception rather than the rule, In most cases Health Care proxies help get treatment, not prevent it. And there is no doubt that the mere existence of working on an advance directive and/or health care proxy helps people with mental illness communicate with those around them so they clearly understand their treatment preferences.

“Ontario has relieved (but not solved) the problems that proxies create by giving an administrative tribunal the authority to interpret known wishes and also, in limited circumstances, to override the decisions of a proxy who is not acting in the incapable person’s best interests. US law should do this too.

“There is also an opportunity to be gained here: given lemons make lemonade.

Ontario’s law could (and has) resulted in cases similar to those you describe in the NBD Update. But it also provides for proxies that people can use to waive their rights under commital and involuntary treatment laws (Ulysses Contracts)

“In other words, when well a person can say. ‘when I get sick hospitalize me fast, give me no recourse to the law, and make it hard for me to revoke these instructions’. In practice I’ve found these devices especially useful for people with bi polar disorder, although I have also helped people with schizophrenia make them. “

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  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.

DJ Jaffe is Executive Director of the non-partisan Mental Illness Policy Org., and author of Insane Consequences: How the Mental Health Industry Fails the Mentally Ill. He is a critic of the mental health industry for ignoring the seriously ill, and has been advocating for better treatment for individuals with serious mental illness for over 30 years. He has written op-eds on the intersection of mental health and criminal justice policy for the New York Times, Wall St. Journal and the Washington Post. New York Magazine has credited him with being the driving force behind the passage of New York’s Kendra’s Law and Congress incorporated ideas proposed by DJ in the Helping Families in Mental Health Crisis Act.