A. Psychotropic Drugs
Involuntary Medication (i)
Jackson’s parents sought guardianship of their son and authorization to treat him with antipsychotic medication. At a temporary hearing, Jackson was adjudicated mentally ill. From that hearing until trial, Jackson’s condition showed great improvement, but his parents contended that the improvement was not enough to render him competent to make his own psychiatric treatment decisions.
Jackson said he is not mentally ill, but two psychiatrists testified that he suffers from paranoid schizophrenia, and because of this illness he was not competent to make his own decisions about medication. Jackson called in another psychiatrist who could not testify that Jackson was not mentally ill, but who offered a possible alternative diagnosis: bipolar disorder. Jackson’s family contended that this psychiatrist did not review records other than those of a recent hospitalization, did not get a family history, did not speak with the physicians who had examined or treated Jackson, and admitted that he did not have enough information about the patient to reach a definitive diagnosis. Further, the family said, Jackson’s chosen psychiatrist examined Jackson during a time when Jackson had improved.
At trial, Jackson testified about his activities and reaction to the medication. He said he hadn’t taken his medication for a while because of its side effects. The judge found that Jackson was more relaxed and happy since his hospitalization. Jackson had been hospitalized with an order for involuntary medication after the initial hearing on temporary guardianship. Jackson had been involved in classes at a university, had taught at a hockey clinic, and was involved with a religious group. He was also living with his girlfriend and serving as a music minister.
The judge concluded that while Jackson had been incompetent by reason of mental illness at times in his life, his parents did not meet their burden of showing that he was incompetent at the time of trial. Additionally, applying principals of substituted judgment, the judge denied the petition seeking involuntary treatment.
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Questions for Discussion
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What does it mean in behavioral health cases when patients’ capacity waxes and wanes? How should this be taken into account in making treatment decisions for psychiatric patients?
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How competent ought one be to enjoy the right to refuse treatment?
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Even in cases of complete incapacity, it is sometimes possible for a person to communicate care preferences. How valid are these expressions?
Involuntary Medication (ii)
The ward had a long history of mental illness before the establishment of this guardianship, and had been institutionalized. During his second institutionalization, this guardianship was established after the ward attacked another patient for no apparent reason and had to be restrained by hospital attendants. He was diagnosed with schizophrenia paranoid type, and the hospital recommended that he be treated with antipsychotic medication.
The ward refused all drugs, as he had done on many previous occasions, and also refused psychotherapy. His refusal was based on his prior experiences with illicit drugs which, among other things, caused him to be in a car accident. His guardian ad litem further argued that another factor in the ward’s refusal was the ward’s acceptance of certain tenets of the Christian Science faith. Over the objections of the guardian ad litem, the court decided that the guardian (who was at the time a temporary guardian) had the authority to consent to forcible administration of antipsychotic drugs for the ward because the ward was institutionalized.
After the ward’s discharge from the institution, the guardian ad litem successfully sought to prohibit the continued forcible administration of the anti-psychotic medications. The appellate court held that in the absence of an emergency, the guardian of a mentally ill ward does not have inherent authority to consent to forcible administration of antipsychotic drugs of a non-institutionalized ward. Only a court can authorize the forcible administration of psychotropic medications on a non-institutionalized ward. The substituted judgment determination under these circumstances cannot be delegated to the guardian. Instead, a judicial determination of substituted judgment is required.
In undertaking substituted judgment, the judge is required to consider, among other relevant factors, the following: the ward’s expressed preferences regarding treatment; his religious beliefs; the impact upon the ward’s family; the probability of adverse side effects; the consequences if treatment is refused; and the prognosis with treatment. If the judge determines that the ward, if competent, would accept the medication, he is required to order its administration. If the judge determines that the ward’s substituted judgment would be to refuse the treatment, then the judge must balance that judgment against any State interests.
Included among State interests that may outweigh the right to refuse treatment are the preservation of life, the protection of the interests of innocent third parties, the prevention of suicide, and maintaining the moral integrity of the medical profession. If the judge determines that the State interests outweigh the right to refuse treatment, the court must then make an “extended substituted judgment” determination to choose from among all acceptable, available and least intrusive means of satisfying the State interest. A substituted judgment determination limited to a decision between involuntary commitment or involuntary medication must be made.
Source
Questions for Discussion
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Is a substituted judgment determination a legal fiction when used in cases of wards with long histories of mental illness? Compare this to never-competent persons.
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Why not use a best interest or reasonable person standard in such cases?
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What kinds of “interests of innocent third parties” should be able to constitute a state interest strong enough to justify forced medication?
B: Other Issues
Ward Refuses Medical Treatment
Mrs. W., 92, is a legally incompetent woman who has a mass in her bladder. Although her doctors are considering aggressive procedures to determine the nature of the mass, Mrs. W. is expressing a desire not to endure any diagnostic procedures or surgical procedures. Her guardian, Ms. G., has been appointed to make medical decisions on her behalf. Ms. G. is now faced with the question whether to override Mrs. W.’s wishes and authorize a full diagnostic workup.
In making her determination, Ms. G. discussed treatment options with Mrs. W.’s physician. According to her physician, the procedure contemplated (a transvaginal probe and biopsy) would cause discomfort and afford no certain benefit. In addition, it presents a number of nontrivial risks. Because of her refusal, Ms W. might need to be restrained (physically and/or chemically) – a potentially violent measure that would damage or destroy any therapeutic relationship with the health professionals involved.
Ms. G. also discussed the situation with Mrs. W., who very clearly expressed her desire to refuse any invasive workup or surgical intervention. Throughout her life, Mrs. W. sought medical care when necessary, but, in part because of a number of bad experiences, has since refused and expressed disdain for surgery in general; this opinion long predates her incapacity. Her decision to refuse the procedure presently at issue is consistent with a longstanding belief. She also expressed her conviction that she regards the transvaginal procedure being contemplated as a violation of her personal dignity. She has lived a long and full life, and seems to have a sense of the consequences of her refusal – which might include death.
Ms. G. made the decision to refuse the diagnostic workup and any surgical intervention. Her reasoning was that forcing an unwanted surgical procedure would cause unreasonable distress and there were grounds for believing that Mrs. W. considered the treatment unnecessary. Adequate pain management and palliative care were recommended in case her malady worsened because of the refusal.
It is widely accepted that capacity is not a binary value such that people are either completely capacitated or completely incapacitated; and that this is true even for people who have guardians assigned them. Mrs. W.’s refusal would be completely uncontroversial and unremarkable in a person who had not been declared incompetent by a court.
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Questions for Discussion
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Does and should a legally incompetent person have the right to refuse potentially life-sustaining treatment? What criteria should be used?
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Should a refusal of treatment be disregarded because a person is determined to be incompetent?
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How should values held before incapacity be understood to apply after incapacity?
Quality of Life and Family Connections
John is a 68-year-old legally incompetent male who has had a diagnosis of schizophrenia since his early 20’s. John’s father died in the early 1970’s. His mother died in 2002. John lived with his mother at her house until late 1996. His mother was his guardian for most of his adult life, and John’s niece, Judy, became his legal guardian when his mother’s declining health forced her to resign.
John suffers from many medical problems, including chronic hypertension. Approximately 15 months ago he was diagnosed with bladder cancer which was treated with surgery and chemotherapy. Most recently, he has developed heart problems. The doctors have recommended open-heart surgery involving the use of a heart/lung bypass machine, with surgery to repair or replace his mitral valve. Post-operative recuperation would require the patient’s cooperation in rehabilitation therapy.
Judy needed to decide whether to treat John’s heart disorder aggressively. In consultation with a cardiologist, the guardian decided against surgery but, instead, elected to keep the ward as comfortable as possible. Options included a pacemaker or an angioplasty that would result in opening the blood vessels sufficiently to increase blood flow and more efficient heart pump action.
When discussing the choices with the cardiologist, Judy had already been through the bladder cancer recovery period with John and knew that he was very uncooperative with treatment. John has a very low level of functioning and either is not able to understand what is necessary or is unwilling to take the necessary steps to recover after surgery. Throughout his cancer treatment, John experienced paranoia and was defiant and resistant to treatment. At times he was still exhibiting those symptoms, in addition to periodic bouts of confusion and depression.
The guardian’s decision not to approve surgery was based primarily on a determination to preserve John’s quality of life. She believed that John would not have a clear understanding of his medical condition and would not cooperate with treatment. She also believed that major surgery would only serve to aggravate his mental health and would not improve his medical condition significantly.
Note that the guardian had been very close to her grandmother – the mother of the ward – and that the guardian’s mother – the ward’s sister – is very emotional about the possibility that the family could lose both her mother and her brother in a short time. The guardian had promised grandmother that John would always be taken care of and protected even after grandmother died.
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Questions for Discussion
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How should quality of life be balanced against life itself?
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How should mental disability be included in assessing quality of life?
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How should guardians-as-family-members weigh family pressures and the concerns of loved ones in making decisions for wards?
Organ Donation for Research
A ward needs final arrangements to be made, and his guardian has been approached by the teaching hospital at a local university about donating his brain for analysis after death. The ward is being treated there for his Alzheimer's disease, and his physician is nationally respected for his work in the field.
The ward is not able to participate in this decision and has left nothing of his personal history for the guardian to review. Little is known about his life before his incapacity. He was probably a blue collar laborer. He was abandoned by someone, possibly a stepson, in an apartment. There is no known family.
The guardian, a volunteer, is seeking advice. Should the guardian allow the ward’s brain to be used for research after he dies?
Source
- E-mail from Julia Nack, Volunteer Guardian Director, Central Ohio Area Agency on Aging, to nga-list@guardianship.org, Brain Donation – Ethics Situation (December 23, 2003)
Questions for Discussion
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Which surrogate decision making sandard – substituted judgment, best interest or reasonable person – should be applied? Why?
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Should “benefit to society” be included in the guardian’s decision process? If so, under what circumstances?
