State Sen. Scott Oelslager (R-Plain Township) introduced legislation in May that could resolve the complex, intertwined conflicts between the rights of people with mental illness and the need to protect both them and the public from harmful acts caused by their sickness.
Like many physical ailments, mental illness often does not constantly afflict those who suffer from it. Stress, substance abuse and abstinence from medication can give rise to flare-ups, while calming influences, medication and other factors often nurture long periods of lucidity.
The inconsistent nature of mental illness was part of testimony on this bill by Doug DeVoe, executive director of Ohio Advocates for Mental Health, a statewide organization working for people with severe mental illness. DeVoe testified before the Judiciary Committee on Criminal Justice, chaired by Oelslager.
"It is an illness that frequently may have long periods of remission, but most people experience an occasional exacerbation, no matter how good their treatment," DeVoe said.
It is during such periods of remission that Oelslager's bill would allow those diagnosed with mental illness to complete a legally enforceable document, known as an advance psychiatric directive. The document is a declaration for mental health treatment, determining the options available to doctors and other health-care providers.
The legislation does not limit the breadth or specificity of treatment directives, according to Corey Schaal, an intergovernmental relations coordinator with the Ohio Judicial Conference.
"The patient's directions could be as specific as, 'I do not want to receive such-and-such drug or such-and-such treatment,' " Schaal said.
Since no one can anticipate all treatment scenarios, the bill also allows a mentally ill person to designate a proxy, who is legally empowered to make health care decisions when the patient is incapacitated. The proxy accepts the responsibilities of this designation by signing the declaration and must make decisions consistent with the specific directives contained in the document.
At the drafting of an advanced psychiatric directive, two witnesses must attest to the mentally ill individual's ability to make sound health care decisions. The directive does not go into effect until one doctor, who may be designated by the patient in the advance directive, and one additional provider agree the patient is no longer capable of making treatment decisions.
While health care providers would generally be bound to adhere to the directive, instructions may be ignored if an emergency endangers the life or health of the patient or others, if the patient's actions represent a substantial risk to himself or others or if the patient has been found guilty by reason of insanity.
Without advance psychiatric directives, treatment providers are often confronted with conflicts between a patient's wishes and effective treatment of a psychotic episode. While under the control of mental illness, patients might view themselves as healthy and therefore resist treatment. Patients afflicted with paranoia might violently oppose treatment, believing health care workers intend harm. Patients might shun some medications because of severe side effects, such as lethargy, dizziness, blurred vision, loss of libido, drowsiness, nausea or involuntary ticks and twitches.
Consequently there are times when, if the mentally ill patient is to be treated effectively, medications and other treatments must be forced upon them. According to some advocates for people with mental illness, such compulsory treatment violates the patient's civil rights.
"I think that any person, regardless of label, who can express his or her own wishes and desires, no matter how irrational they may appear to others, deserves to have those wishes respected," said Judi Chamberlin of the National Empowerment Center, an advocacy group for the mentally ill, in a speech to a mental health conference.
But others see nothing wrong with treating mentally ill patients against their will. Perhaps the most recognized and outspoken of this latter group is psychiatrist E. Fuller Torrey. In an April 2002 Washington Monthly article — "Hippie Healthcare Policy" — and in a recent appearance on 60 Minutes, Torrey argued mental illness is an organic disease that, in most cases, can be successfully treated with medication. If a mentally ill person refuses to take the medication, she should be forced to, according to Torrey.
Chamberlin's belief is obviously weighted toward the rights of the mentally ill patient at all times, even when the patient's decisions have no rational foundation and could contradict his own wishes during periods of clarity.
Torrey's views, on the other hand, seem to ignore that mentally ill people have periods of clarity during which they possess the reasoning and logic to make health care decisions that are as sound as those made by people without mental illness.
If a mentally ill person decides, while competent, to reject a certain medication because it nauseates him and that decision does not harm anyone, then it is similar to a cancer victim refusing chemotherapy so she can enjoy life without the sickness and weakness it causes.
In addition to resolving some of these conflicts, Oelslager's bill could save money for Ohio. The declaration for mental health treatment could reduce court and treatment costs, according to the Legislative Service Commission, the state agency responsible for analyzing the financial impact of legislation.
"Because an individual who establishes a declaration would be pre-authorizing treatment, there could be a reduction in the number of involuntary civil commitment hearings and forced medication hearings," the commission's analysis says. "Individuals might also receive treatment earlier, thus reducing the need for hospitalization. If this happens, the Department of Mental Health costs could decrease."
Witnessing firsthand the unnecessary waste of judicial resources, probate judges from Stark and Trumbull counties initiated the push for an advanced psychiatric directive in Ohio. The legislation was drafted with input from numerous mental health and legal groups. Oelslager's bill, Senate Bill 267, recently cleared the Criminal Justice Committee. Due to the summer break, it will probably not be presented to the full Senate until after the November elections.