By Spielman, Bethany
Developments in Mental Health Law , Vol. 12, No. 1
The Patient Self Determination Act (PSDA) (1) went into effect on December 1, 1991. The Act includes an informational requirement mandating that, upon admission to a hospital, nursing home, or hospice, or upon enrollment in a health maintenance organization receiving Medicare or Medicaid funds, patients must be informed of their right to refuse treatment and to formulate a living will or appoint a health care proxy. The Act's purpose, in part, was to increase the number of people who exercise their rights to execute an advance directive and refuse medical care.
Among those who may choose to exercise that right are the thirty-two million Americans who suffer each year from a diagnosable mental disorder. One and one-half million have a chronically disabling mental illness such as schizophrenia, other psychoses, or severe alcoholism.
The Patient Self Determination Act and Psychiatric Facilities
The threshold question regarding the PSDA in mental health contexts is: does it apply to them at all? The answer requires an examination of the Act's text and legislative history. The text of the PSDA says it is to be applied to hospitals, nursing facilities, home health or personal service providers, hospices, health maintenance organizations, and other prepaid agencies. Therefore it does apply to psychiatric facilities if the term "hospitals" (or "other eligible organizations") includes psychiatric facilities. Psychiatric facilities are not specifically mentioned anywhere in the text of the Act or in its legislative history. There is no indication that Congress intended psychiatric hospitals to be included, but no indication that it meant them to be excluded, either. It is reasonable to conclude psychiatric facilities are covered by the Act.
The Act states that a provider must give written information to each individual concerning rights under state law to make decisions concerning "medical care." The PSDA is intended to enhance "the right to accept or to refuse medical or surgical treatment," and that phrase appears both in the text and also regularly in the legislative history of the Act.
Senator Danforth, who sponsored the original bill, apparently had in mind Cruzan-like cases involving termination of life sustaining medical treatment. When he introduced the bill, Nancy Cruzan lay in a persistent vegetative state, supported by artificial nutrition and hydration in Senator Danforth's home state of Missouri. In his remarks to the Senate, Danforth included references to her family's dilemma. (2)
Because psychiatric treatment is a form of medical care, the text of the PSDA must be understood to require disclosure of information about the right to accept or refuse psychiatric treatment. Under the PSDA, psychiatric facilities would be required to inform patients of existing law regarding the right to refuse psychiatric treatment as well as the right to refuse nonpsychiatric treatment and to formulate advance directives. The Patient Self-Determination Act contains an antidiscrimination clause. It states that providers should not condition the provision of care or otherwise discriminate against an individual based on whether or not the individual has executed an advance directive. The antidiscrimination clause is not to be construed as requiring provision of care that conflicts with advance directives. But it will prevent psychiatric facilities from skirting the problems that advance directives create by simply avoiding the patients who have the directives. Facilities must accept a patient who already has an advance directive and inform those who don't of their right to formulate one.
This aspect of the PSDA may conflict with current law in several jurisdictions. For example, under Florida law, (3) a voluntary patient who refuses consent or revokes consent may be discharged from a psychiatric hospital within three days, or proceedings for involuntary placement maybe instituted, or emergency treatment may be given in the least restrictive manner. …