An Americans with Disabilities Act Critique of Advance Directive Override Provisions

Abstract

This Article argues many mental health advance directive statutes violate the Americans with Disabilities Act (ADA). Advance directives empower people to determine care to be administered when they lack capacity to provide informed consent. General advance directives typically address end-of-life care. Mental health directives govern treatment administered during periods of incapacity caused by acute episodes. Because end-of-life decision-making is different than planning for episodic mental illness, half of the states have enacted separate mental health directive statutes. These specialized statutes often provide doctors more leeway to force treatment on a patient in contravention of a directive than do generic directive statutes. People with mental illness who form directives are qualified individuals with a disability under the ADA. When a state makes it easier for a doctor to override mental health directives than the directives of other people, it excludes people with mental illness from full participation in the state’s advance directive program because of their disability. The ADA does not require public entities to allow individuals to participate in or benefit from programs where the individuals pose a direct threat to the health or safety of others (direct threat exception). However, mental health directive statutes often fail to require an individualized dangerousness assessment at the time of directive abrogation as is mandated by the ADA. This Article proposes a model override provision which allows doctors flexibility to respond to threats to the health or safety of others and complies with the ADA. The recommended approach also clarifies the relationship between mental health directive laws and involuntary commitment laws which is currently vague at best.