Sunday, June 02, 2013

The Emancipated Patient


On our last blog post pseudo-Kristen laid the groundwork for what I'm about to say. In a comment there she said:

"I want the same scenario as the cancer patient. I want to say, as someone who is presently competent to make decisions, that this form of intervention was not life saving for me, it was harmful to me personally and drove me further from care. I want to be able to opt out of all forced treatment in case of psychiatric emergency…"

Presently this isn't possible. Although psychiatric advance directives exist, the reaction I've gotten from both doctors and patients is that they are essentially useless. Doctors don't like them because they can lose the ability to give involuntary medications---leading to a patient taking up a hospital bed who can't be treated. Patients don't like them because in many states they can't be used to prevent civil commitment.

This got me thinking. What would happen if advance directives had teeth? What would be the outcome if certain patients, after a certain process, were essentially exempt from ever being subject to involuntary care?

There is an analogous process we can look to in juvenile law. (Forgive the comparison, I'm not implying that psychiatric patients should be or are lesser than adults although I'm sure sometimes it feels that way.)

In juvenile law, if someone can prove that he is living independently of his parents and is not financially dependent on them, or is married and raising a child, he may have himself declared emancipated by a judge. This essentially grants the chronological juvenile the same legal rights as an adult---he can sign contracts, consent or refuse medical treatments, and do other things not otherwise available to children.

Imagine a process by which a psychiatric patient could claim absolute treatment decision rights. He has perfect insight, has a reasonable understanding of what his illness is and what the symptoms are, the effects these symptoms have on his loved ones and employment, and all the possible ramifications of getting sick (yes, even the risk of suicide or criminal acts). Let's temporarily suspend all the obvious objections to this from family, psychiatry, and society in general and assume for the sake of discussion that such a process were magically adopted by the legislature.

Voila. You're free.

What happens next?

Ideally, nothing different. The patient gets better on his own or with the voluntary help of a mental health professional on either an outpatient basis or with a consenting inpatient admission.

Maybe he doesn't get better, but also doesn't want the "help." He struggles along on a daily basis, maybe functional or not-as-functional as he might be. Maybe he doesn't struggle along. He stops eating, stops bathing, stops drinking, loses weight and his family gets worried. He still doesn't want the "help."

Here's the point where everybody really starts getting nervous. The ugly question, the question not to be said out loud by any psychiatrist:

Should a psychiatric patient have the right to let himself die? (I feel a bit sick just writing that.)

At this point let me be clear that my own personal opinion is NO. This is only a theoretical discussion.

Now let's make things even more complicated. I'm going to draw on a real life, actual legal opinion for this hypothetical.

Before our hypothetical patient drew up his motion for emancipation he had to be assessed as competent to file for emancipation. Psychiatric advance directives have a similar requirement. But the Federal Court of Appeals for the state of Vermont has said that this is a violation of the Americans with Disabilities Act since medical patients don't have to prove competence before signing a medical advance directive. In Vermont, a theoretically incompetent person could sign an advance directive refusing all psychiatric care.

Personally I think a formal emancipation process would be better than taking that risk.

I could take this one step further and make the hypothetical even more extreme by pointing out that Vermont also just passed a law allowing physician assisted suicide (what if you want the right to die due to an terminal-if-untreated psychiatric condition?). I think I'll stop here for now. This slope is slippery enough.