Making the case for a model mental health advance directive statute.

Abstract

Acute episodes of mental illness temporarily destroy the capacity required to give informed consent and often prevent people from realizing they are sick, causing them to refuse intervention. Once a person refuses treatment, the only way to obtain care is as an involuntary patient. Even in the midst of acute episodes, many people do not meet commitment criteria because they are not likely to injure themselves or others and are still able to care for their basic needs. Left untreated, the episode will likely spiral out of control. By the time the person finally meets strict commitment criteria, devastation has already occurred. This Article argues that an individual should have the right to enter a Ulysses arrangement, a special type of mental health advance directive that authorizes a doctor to administer treatment during a future episode even if the episode causes the individual to refuse care. The Uniform Law Commissioners enacted the Uniform Health-Care Decisions Act as a model statute to address all types of advance health care planning, including planning for mental illness. However, the Act focuses on end-of-life care and fails to address many issues faced by people with mental illness. For example, the Act does not empower people to enter Ulysses arrangements and eliminates writing and witnessing requirements that protect against fraud and coercion. This Article recommends that the Uniform Law Commissioners adopt a model mental health advance directive statute that empowers people to enter Ulysses arrangements and provides safeguards against abuse. Appendix A sets forth model provisions.