Self‐binding directives for mental health treatment: when advance consent is not effective consent

Variation in Australian law concerning self‐binding directives for mental illness is unnecessarily complex for clinicians

Self‐binding directives (SBDs, also referred to as Ulysses directives)1 are a type of advance health directive used by people with mental illness to bind themselves to future treatment that is likely to be resisted at the time when it is needed. SBDs offer the potential to use the individual's past experience of illness to describe early indicators of the onset of another acute phase of illness,2 and give advance consent to specified forms of mental health treatment. This treatment is intended to occur at a time when the person considers their functioning will have become severely affected by illness, which may be before they meet the criteria for involuntary treatment under mental health laws.

SBDs for mental illness were first proposed in the 1980s3,4,5 and have recently experienced a revival in interest due to their potential utility for people living with recurrent disorders such as schizophrenia or bipolar disorder.1,6 Anyone who experiences acute episodes of mental illness, interspersed with periods of good or partial recovery, may find an SBD useful. SBDs have two major advantages. First, they promote and extend self‐determination by enabling individuals to give advance consent to necessary psychiatric treatment. Second, they facilitate earlier intervention, which enables individuals to prevent, or at least limit, some of the most significant damage to people, relationships and property caused by a major episode of untreated severe mental illness, and may also lead to a reduced duration of treatment.1 Box 1 provides an example of a situation in which an SBD might be useful.

Legal issues

The major ethical and legal dilemma posed by SBDs is that they authorise clinical staff to provide treatment over a person's current objections, which in some circumstances may require coercion or in some cases the use of force to effectuate. This is obviously distressing for both the individual and the clinical staff involved. This clinical conundrum is further and unnecessarily complicated by the lack of uniformity in the legal treatment of SBDs. SBDs are made under laws that apply to refusals of medical treatment as well as consent to treatment, and in many cases these laws were drafted with end‐of‐life decisions in mind, rather than decisions concerning mental health treatment. Accordingly, in some jurisdictions, SBDs should be followed; in some jurisdictions, they may be followed at the discretion of the medical practitioner; and in others, they are unenforceable.

Australian law

Currently in Australia, SBDs may be made in three ways: at common law (or judge‐made law) in all states and territories (except Queensland); under general legislation governing advance health directives in Queensland, South Australia, Victoria, Western Australia and the Northern Territory; or under specific mental health laws in the Australian Capital Territory (Box 2). In New South Wales and Tasmania, the only way to execute an SBD is pursuant to the common law.

However, in many cases, advance consent to treatment in SBDs is legally ineffective, for reasons which are discussed below. This undermines the postulated benefits (in terms of self‐determination and possible earlier intervention) for people with recurrent mental illnesses.

Where a person refusing treatment lacks capacity

Advance directives only take effect once a person has lost decision‐making capacity. If, at the time treatment is to be provided, a person lacks decision‐making capacity, their contemporaneous refusal of treatment is not legally decisive. In many cases, at that point, they may meet the criteria for compulsory treatment under mental health laws if there is no other “less restrictive way” of providing necessary treatment. The directions contained in the SBD may constitute a less restrictive way for the person to receive treatment for mental illness, so long as the directive was validly executed under common law or legislative requirements (Box 2) and the directions are “ordinary, reasonable and appropriate” (Messiha v South East Health [2004] NSWSC 1061). Clinically appropriate instructions contained in an SBD should generally be followed by medical practitioners in preference to giving treatment involuntarily under mental health laws.

However, the legal status of SBDs varies considerably under legislation in the various states and territories, as described in Box 3. If compulsory treatment laws do not apply, clinicians should ordinarily follow instructions in an SBD in WA or the NT, but have discretion to determine whether the instructions in an SBD are appropriate or not in most other jurisdictions. In the ACT, medical practitioners cannot provide treatment requested in an SBD over a person's current objections unless the ACT Civil and Administrative Tribunal authorises the treatment.

SA legislation is unique: a person can specify in the SBD which symptoms or behaviours indicate an impairment of decision‐making capacity. The SBD takes effect when these requirements are satisfied (Advance Care Directives Act 2013 (SA), s 7(1)(b); Mental Health Act 2009 (SA), s 5A(2)(b)), or when the more usual legal test of incapacity is met. This effectively allows people with mental illness in SA to self‐assess when their capacity to consent to, or refuse, medical treatment is compromised by their mental illness. Advance wishes requesting early intervention can thus take effect from that point.

Use of force

Assuming a mentally ill person lacks capacity and their instructions are clinically appropriate, clinicians may nevertheless be prevented from providing treatment consented to in the SBD, if that person's contemporaneous objections make the use of force or physical restraint necessary. Clinicians need to be aware of the considerable variation between jurisdictions (Box 4). In Queensland, physical restraint or other means of managing a patient may be used to provide medical treatment where the restraint is specifically requested in the person's advance directive. By contrast, in the ACT, clinicians “must not apprehend, detain, restrain or use force to give effect to” treatment consented to in an SBD. In other jurisdictions, it remains unclear how medical practitioners are to resolve the conflict between a person's consent to treatment contained in an SBD, and their contemporaneous resistance to the provision of this treatment.

Revocation

In most jurisdictions, an SBD, like other forms of advance directive, can only be revoked by a person who has decision‐making capacity (Box 5). Hospital staff would need to assess the patient as having decision‐making capacity before giving effect to any request for revocation.

In SA, a person who lacks capacity can apply to the Tribunal to have an advance directive revoked if this is appropriate in the circumstances and genuinely reflects the person's wishes. However, SA's laws expressly protect people who wish to execute an SBD: if it expressly states that it is not to be revoked, an SBD cannot be revoked, despite objections, unless the person indicates a conscious wish to override the non‐revocation condition.

However, in WA an SBD is automatically revoked “if the maker of the directive has changed his or her mind about the treatment decision since making the directive”. A change of mind does not have to be in writing and witnessed, and can be informally expressed, including at a time when a person does not have decision‐making capacity. Accordingly, in WA an SBD is likely to be ineffective if the person knows they will object to treatment when their mental health is declining, as these objections will be considered a change of mind that will revoke the earlier SBD.

Exceptions

In all jurisdictions, an SBD may not be followed if the person meets the criteria for involuntary treatment under mental health laws and clinicians determine that the appropriate treatment is not that requested in the SBD. In addition, even where compulsory treatment is not indicated, statutes in most jurisdictions contain exceptions conferring considerable discretion on medical professionals to choose not to follow instructions contained in an SBD. For example, in Queensland, SA, Victoria, WA and the NT, clinicians may determine that circumstances have changed and it would no longer be appropriate to follow an SBD (Box 6). Additionally, in Queensland and SA, clinicians may choose not to follow SBDs if they consider them to be “inconsistent with good medical practice”, and in SA additionally if they are not “reasonably practical”. Such broadly phrased exceptions detract from the utility of SBDs for people with mental illness.

Conclusion

SBDs represent deliberate choices by people with mental illness to bind themselves in advance to receive future treatment, in order to minimise harm resulting from future acute episodes of illness. However, current Australian law is ill equipped to deal with such self‐binding advance consent to medical treatment.

There is wide variation between jurisdictions as to whether an SBD will be enforceable once a person has lost decision‐making capacity. This is both illogical and unsatisfactory for people with mental illness. Whether an SBD will be enforceable will depend on a complex web of legal rules governing the use of force or restraint to implement a person's wishes; when an SBD can be revoked; and a broad array of exceptions. This introduces unnecessary complexity and uncertainty for treating clinicians and undermines any confidence people with mental illness have that their wishes will be respected. The law of consent to treatment needs reform to strengthen the legal enforceability of SBDs for mental health treatment. Only then will their potential to promote both self‐determination and recovery for people living with mental illness be fully realised.