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Rights and Privacy Issues


Psychiatric advance directives permit people to determine what treatment they will receive if and when they lose the capacity to make treatment decisions. Mental Health America supports and promotes the use of psychiatric advance directives as a tool for the expression of an individual’s free will and self-determination in coping with mental health and substance use conditions. State laws regulate advance directives, and compliance with these laws is strongly advised. See, generally, National Resource Center on Psychiatric Advance Directives, The Bazelon Center for Mental Health Law provides a template for decision making in constructing a psychiatric advance directive..


A psychiatric advance directive is a written statement of a person’s treatment preferences and other wishes and instructions. A psychiatric advance directive or a power of attorney (sometimes called a durable power of attorney or a power of attorney for health care) can also be used to assign decision-making authority to another person who can act on that person’s behalf.

Psychiatric advance directives are based upon several important considerations:

  • Most people with even the most serious mental health conditions are capable of making important decisions about their mental health treatment most of the time.
  • Some serious mental health conditions, such as schizophrenia and bi-polar disorder, are relapsing and remitting in nature—serious symptoms may only appear occasionally. Sometimes the serious symptoms of these conditions may, for a period of time, interfere with the ability of an individual to make or communicate decisions which are consistent with the wishes of that same individual before or after those periods. For example, people who have had symptoms before are apt to know, better than anyone else, whether psychotropic medications have been effective in treating their symptoms and, if so which medications, and they will know the nature and seriousness of any side effects and which medications they would refuse if they were able to do so. Alternatively, they may know that other treatments have been more effective than medications or have caused fewer side effects.
  • A psychiatric advance directive permits someone who has a serious mental illness which is not interfering with her ability to make decisions to express in a legally binding manner how she or he wishes to be treated if and when that individual is later unable to make decisions.

Psychiatric advance directives offer several key benefits. Correctly implemented and executed, they can:

  • Promote individual autonomy, empowerment and recovery from mental illness;
  • Enhance communication between individuals and their families, friends, healthcare providers, and other professionals;
  • Protect people from being subjected to ineffective, unwanted, and possibly harmful treatments or actions; and
  • Help in preventing crises and the resulting use of involuntary treatment or dangerous interventions such as restraint or seclusion.

People considering the creation of a psychiatric advance directive need to be fully informed about the benefits and limitations of these legal instruments. Anyone creating an advance directive should be able to do so without coercion, with choices regarding implementation and revocability, and with full knowledge and understanding of the implications of his or her decisions. It is particularly important that no treatment, service or government benefit be conditioned on the willingness of an individual to create an advance directive or on the content of an advance directive.

The primary goal and focus of mental health services should be recovery.1 The recovery model recognizes that persons with mental health conditions should be able to live a meaningful, self-directed life in the community. It also recognizes that persons with mental health conditions are able to set their own goals and define what recovery means to them. Psychiatric advance directives can be an important tool in enabling persons with mental health conditions to achieve their recovery goals.

Psychiatric advance directives are an underutilized tool for empowering individuals and offer significant potential for preventing or mitigating crisis situations. While every state has enacted legislation authorizing some form of advance directive for health care, many of these general advance directive laws do not provide adequately for the unique problems relating to the treatment of mental illnesses. Specifically, many states do not allow people to choose whether and under what circumstances they wish their advance directive to be revocable. This choice can be very important in protecting the rights and autonomy of persons with mental health conditions. Barriers to the implementation of psychiatric advance directives, such as state laws that add unnecessary procedural or legal burdens, should be eliminated. Thus, it is a priority for Mental Health America to reform state laws that impede ready access to psychiatric advance directives or reliable compliance with them.

Call to Action

  • States should amend their existing advance directive laws for healthcare to permit individuals to include specific provisions for mental health treatment. This would eliminate the need to create two advance directives in those states which already have a special psychiatric advance directive and a general one for other healthcare. Alternatively, in those states without any special provisions for mental health care, existing legislation should be amended to provide for specialized psychiatric advance directives. Such legislation should be designed to enable people to choose the most important elements of the directive for them, including: what types of treatment will be covered, what events or determinations will trigger implementation, and whether or not and under what circumstances the directive will be revocable. Psychiatric advance directives should also permit a person to designate individuals to be contacts in an emergency and those individuals with whom information concerning that person’s treatment may be shared.
  • Such legislation should also be based upon the recognition that, while the treatments authorized can be highly beneficial, even life-saving, for the individual, many treatments have serious side effects. Therefore, the decision to agree or not to agree in advance to such treatments or to authorize someone else to do so on one’s behalf is a serious one which should be accompanied by appropriate safeguards to insure that the decision is fully informed and free from coercion.
  • Such safeguards should include the requirement that any advance directive be witnessed by at least one person who is independent of any entity providing treatment to the person.
  • It is particularly important that a person who is considering designating someone to act on her/his behalf choose someone who understands that individual’s values and preferences and can be relied upon to faithfully carry out her/his wishes.
  • Individuals, family members, friends, advocates, healthcare providers and other professionals should meet in community dialogues and work together to promote education, training and research towards the successful creation and implementation of psychiatric advance directive programs.
  • State laws should require that mental health providers comply with valid psychiatric advance directives unless to do so would result in serious and imminent physical harm to the individual in treatment or others.2
  • Provider agencies and inpatient and outpatient facilities, including hospitals and emergency departments, should be educated about and should be encouraged to ask people receiving services/treatment whether they have an advance directive.
  • The presence or absence of an advance directive should be added to an individual's health records, and provider policies should encourage asking at regular intervals if an individual would like to create or update an advance directive.

Effective Period

This policy was Approved by the Mental Health America Board of Directors on December 5, 2015. It will remain in effect for five (5) Years and is reviewed as required by the Mental Health America Public Policy Committee.

Expiration:December 31, 2020

1.See MHA Position Statement 11: In Support of Recovery-Based Systems Transformation,

2.Mental Health America strongly agrees with the decision in Hargrave v. Vermont, 340 F.3d 27 (2nd Cir. 2003), that even a person who is involuntarily committed to a psychiatric hospital has the right to have the hospital comply with her/his advance directive. State laws should expressly recognize this right.