By Judy Clausen
The JBA Health Law Committee Chair
Taking a cue from Greek mythology, Florida should give patients the right to form Ulysses arrangements.
Concerned the Sirens’ song would lead him astray, Ulysses directed his shipmates to tie him to the mast of his ship to protect him, even if the song compelled him to demand to be set free.
A patient forms a Ulysses arrangement when he or she has capacity. Through the arrangement, the patient authorizes doctors to administer treatment during a future episode, even in contravention of illness-induced refusals, and even if the patient lacks capacity and does not meet commitment criteria.
Florida does not have a separate mental health advance directive statute, but relies on a generic health care planning statute to address all advance health care planning. That statute, focused on end-of-life care, is not a Ulysses-enabling statute.
Acute episodes may temporarily destroy capacity required for informed consent, prevent individuals from recognizing they are sick, and cause treatment refusals.
In the midst of an episode, many people do not meet Florida’s involuntary treatment criteria. Once an episode has caused treatment refusals, the only hope for intervention is through involuntary commitment.
In Florida, involuntary examination, admission and treatment are only authorized if the person’s behavior reveals danger to self or others. A person exhibiting psychosis may not meet commitment criteria and that results in postponing intervention until the person becomes dangerous.
In the meantime, the episode may affect the person’s employment, savings, health, safety or the safety of others.
Emergency involuntary admission is authorized only for up to 72 hours, after which many patients, still in the midst of an episode and needing treatment, may no longer meet commitment criteria and require discharge.
A Ulysses-enabling statute requires the following components: The patient must be able to prevent himself or herself from refusing care to which her directive consents; and revoking the arrangement when an episode causes them to attempt revocation. The statute must ensure arrangements are formed knowingly and voluntarily, and articulate procedures for administering treatment despite contemporaneous objections.
Without a well-defined process, a doctor will not force treatment on a refusing patient based only on consent provided in a directive. Doctors will be concerned about liability for unlawfully administering involuntary treatment.
Moreover, the statute must safeguard against undue influence, coercion and fraud.
Finally, the statute must allow patients to secure involuntary transportation to a facility. Without this right, patients whose illnesses induce them to refuse transportation cannot obtain intervention.
Florida should adopt the following procedures and safeguards:
First, to ensure formation is voluntary, the statute should empower patients to choose whether they want authority to revoke the arrangement when they lack capacity.
Second, to safeguard against fraud and coercion, the statute should require a writing, signed by the principal, and a doctor’s attestation that the principal had capacity at the time of formation.
Third, automatic expiration after two years requires patients to regularly reevaluate the need for self-binding intervention and update treatment protocols.
Fourth, patients should be able to designate when directives become active.
Fifth, the statute should allow a patient who wants involuntary transportation to designate an agent to initiate transportation by preparing an affidavit explaining why the directive has become active and then petitioning the court for an ex parte order. The court shall review the agent’s petition, affidavit, and the directive within 48 hours, and issue a transportation order. The order ought to be issued if the court finds by clear and convincing evidence that the directive has activated and requests involuntary transportation.
And sixth, the statute should provide a process to admit a patient pursuant to a Ulysses arrangement when the patient arrives at the facility and refuses admission. When such a patient arrives, two doctors should evaluate the patient’s capacity.
Statements in the directive requesting inpatient treatment, combined with directive activation and contemporaneous admission refusals, create a rebuttable presumption of incapacity. The presumption incentivizes doctors to follow the directive instead of contemporaneous refusals.
The hospital may retain the patient only for the period the arrangement specifies and may not retain an incapacitated patient based only on a Ulysses arrangement for more than 21 days. After 21 days, regardless of whether capacity has restored, if the patient refuses treatment, the facility shall release the patient, unless the patient meets commitment criteria.
Safeguards are required because administering medication pursuant to an arrangement involves forcing treatment based on the patient’s advance request. If a patient with an arrangement consenting to medication voices contemporaneous refusals, only a psychiatrist may administer medication, and only if: (1) the directive consents to medication; (2) the agent, if one was designated, consents; and (3) two psychiatrists recommend in writing treatment with the medication.