A selection of articles and case summaries
regarding advanced directives

                        Prepared for ATTAC of NAPAS
                        By Center for Public Representation
                        

March 2002

Introduction

    However, the government has funded some research into the effectiveness of mental health directives and a recent symposium issue of Psychology, Public policy and Law devoted to ADs, including mental health directives, has been published, so the available materials are growing.

    Please let us know if there are citations which should be included. The Center for Public Representation provides back-up services to P&As and will be pleased to assist in any way possible.

                        Bob Fleischner
                        Center for Public Representation
                        22 Green St.
                        Northampton, MA 01060
                        413-587-6265
                        RFleischner@cpr-ma.org

March 2002

*Amering, Michael, Elisabeth Denk, Hemma Griengl, Ingrid Sibitz, Peter Stastny,“Psychiatric Wills of Mental Health Professionals: A Survey of Opinions Regarding Advance Directives in Psychiatry,” 34 Social Psychiatry and Psychiatric Epidemiology 30 (1999) (The authors conclude that there is an interest and positive attitude towards ADs among mental health professionals. Professionals felt inclined to make very specific statements as to which available treatment strategies they would reject and request for their own treatment.)

Annas, George, "The Health Care Proxy and the Living Will," 324 New Engl. J. Med. 1210 (1991)

*Backlar, Patricia, “Anticipatory Planning for Research Participants with Psychotic Disorders Like Schizophrenia,” 4 Psychology, Public Policy, and Law 829 (1998)

*Backlar, Patricia, “Anticipatory Planning for Psychiatric Treatment is not Quite the Same as Planning for End-of-Life Care,” 33 Community Mental Health J. 261 (1997)

*Backlar, Patricia, “The Longing for Order: Oregon's Medical Advance Directive for Mental Health Treatment,” 31 Community Mental Health J. 103 (1995)

*Backlar, Patricia, Asniann, B.D., Joondeph, Robert.C.,“Can I Plan Now for Mental Health Treatment I Would Want if I Were in Crisis? A Guide to Oregon's Declaration for Mental Health Treatment,” (summarized on KEN, www.mentalhealth.org)(available from the Oregon Advocacy Center)

*Backlar, Patricia & McFarland, B. H., "A Survey of Use of Advance Directives for Mental Health Treatment in Oregon," 47 Psychiatric Services 1387 (1996)

*Backlar, Patricia & McFarland, B. H., "Oregon's Advance Directive for Mental Health Treatment: Implications for Policy,” 25 Administration & Policy in Mental Health 609

(1998)

Barnes, A.P., "Florida Guardianship and the Elderly: The Paradoxical Right to Unwanted Assistance," 40 U. Fla. L. Rev. 949, 988 (1988)

Baron, Charles, "Medical Paternalism and the Rule of Law: A Reply to Dr. Relman," 4 A.J.L. & Med. 337 (1979)

Bowers, V.J., Elder Law Symposium, “Advance Directives: Peace of Mind of False Security?” 26 Stetson L. Rev. 677 (1996)

Bradley, Elizabeth H. & John A. Rizzo, “Public Information and Private Search: Evaluation of the Patient Self-Determination Act,” 24 J. Health Pol. Pol'y. & L. 239 (1999)

Brett, "Limitations of Listing Specific Medical Interventions in Advance Directives," 266 J. Am. Med. Assoc. 825 (1991)

*Brown, S.J., "An Idea Whose Time Has Come: Advanced Directives Move Into Mental Health Care," Clinical Psychiatry News, July 10-11, 1995.

Buchanan, A.E., "The Limits of Proxy Decisionmaking for Incompetents," 29 UCLA L. Rev. 386 (1981)

Buchanan, A.E., "Advance Directives and the Personal Identity Problem," 17 Phil. & Pub. Affairs 277 (1988)

Buchanan, A.E. & Brock, D.W., Deciding for Others: The Ethics of Surrogate Decision Making, 1989

Cate, F.H., “Implementing the Education Mandate of the Patient Self-Determination Act,” 7 Health Lawyer 11 (Fall 1993)

Chambers, C.V. et al., "Relationship of Advance Directives to Hospital Charges in a Medicare Population," 154 Achieves Internal Med. 541 (1994)

Choice in Dying (formerly Society for the Right to Die), "Refusal of Treatment Legislation, 1991," (updated annually) (250 W. 57th Street, N.Y., NY 10107) *Clayton, Roger R. et al., “Survey of Illinois Law: Health Care Law,” 22 Green Street S. Ill. U.L.R. 939 (1998).

Cohen-Mansfield, Rabinovich, Lipson, Fein, Gerber, Weisman & Pawlson, "The Decision to Execute a Durable Power of Attorney for Health Care & Preferences Regarding the Utilization of Life-Sustaining Treatments in Nursing Home Residents," 151 Archives Internal Med. 289 (1991).

*Cross, John, Fleischner, Robert, & Elder, Jinanne N., “Health Care Proxies: Special Problems in Psychiatric Treatment,” in Guardianship and Conservatorship in Massachusetts, Lexis Law Publishers (1997)

*Cuca, Roberto., Note, "Ulysses in Minnesota: First Steps Toward a Self-Binding Psychiatric Advance Directive Statute," 78 Cornell L. Rev. 1152 (1993)

*Daar, Melissa, Nelson, Theresa and Pone, Daniel, Durable Power of Attorney for Health Care Manual: An Advocacy Tool for Mental Health Consumer Empowerment and Patient Choice, Protection and Advocacy, Inc. (CA) (1994) (Available from Protection and Advocacy, Inc.)

*Doudera & Swazey (eds.), Refusing Treatment in Mental Institutions - Values in Conflict (1982)

*Dresser, R.S., "Bound to Treatment: The Ulysses Contract," 14 Hastings Center Rpt. 13 (1984)

*Dresser, R.S., "Ulysses and the Psychiatrists: A Legal and Policy Analysis of the Voluntary Commitment Contract," 16 Harv. C.R.-C.L. Rev. 777 (1982)

Dresser, R.S., “Missing Persons: Legal Perceptions of Incompetent Patients,” 46 Rutgers L. Rev. 609 (1994)

*Dukoff, R, T. Sunderland, “Durable Power of Attorney and Informed Consent with Alzheimer's Disease Patients: A Clinical Study,” 154 Am. J. Psychiatry 1070 (1997).

*Dunlap, Justin A., “Mental Health Advance Directives: Having One's Say?” 89 Ky. L.J. 327 (2000-2001).

*Ehrlichman, "The 1990 Health Care Proxy Law: Beyond the Best Interests of the State," 76 Mass. L. Rev. 145 (1991)
Elster, J. Ulysses and the Sirens: Studies in Rationality and Irrationality (1984)

Emanuel, E.J. & Emanuel, L.L., "Proxy Decision Making for Incompetent Patients," 267 JAMA 2067 (1992)

*Equip for Equality, Inc., The Mental Health Treatment Preference Declaration,(1996) (Guidebook to assist individuals with mental illness and their families in understanding the Illinois mental health treatment declaration statute. Available from Equip for Equality)

*Fisher, Daniel, “Making Advance Directives Work for You,” Newsletter of the National Empowerment Center, Spring 1999 p. 13.

*Fleischner, Robert D., “Advance Directives for Mental Health Care: An Analysis of State Statutes,” 4 Psychology, Public Policy, and Law 788 (1998)(Charting all state statutes)

*Gallagher, Elizabeth, “Advance Directives for Psychiatric Care: A Theoretical and Practical Overview for Legal Professionals,” 4 Psychology, Public Policy, and Law 746 (1998)

*Gallagher, Elizabeth, “Providing in Advance for Treatment Choices with Psychiatric Advance Directives,” Envoy Aug./Sept. 1995 (Washington Protection and Advocacy System newsletter)

Garraty, C.M., Note, “Durable Power of Attorney for Health Care: A Better Choice,” 7 Conn. Probate L. J. 115 (1992)

General Accounting Office (GAO), “Patient Self-Determination Act: Providers Offer Information on Advance Directives but Effectiveness Uncertain,” (Letter report, 9/1/95, GAO/HEHS-95-135)

Grisso, Thomas & Applebaum Paul S., “The MacArthur Treatment Competency Study. III: Abilities of Patients to Consent to Psychiatric and Medical Treatments,” 19 L. & Hum. Behav. 149 (1995)(nearly half of patients with schizophrenia and over two-thirds of those with clinical depression performed within adequate range of decision making abilities)

Gustitus, T., Note “A Comparative View of Advance Health Care Directives in Florida and North Carolina,” 11 Quinnipiac Probate L.J. 163 (1997)

Haimowitz, S. & Goldman, R.A., "A Patient Returns from `Death with Dignity': Error, Uncertainty and the Right to Die," N.Y. State Bar J. (Oct. 1990) at 58
*Halpern, A. & Szmukler, G., “Psychiatric Advance Directives: Reconciling Autonomy and Non-consensual Treatment,” 21 Psychiatric Bulletin 323 (1997)

Harrison, P., “Advance Health Care Directives,” 3 S.C. Lawyer 29 (1991)

Hastings Center, "Practicing the PSDA," Special Supplement, 21 Hastings Center Report, S-1 - S-16 (1991)(Ten articles on advance directives)

Herr, Stanley, "Representation of Clients with Disabilities: Issues of Ethics and Control," XVII Rev. of Law & Social Change 609 (1989-1990)

Hoffman, D.E., “The Maryland Health Care Decisions Act: Achieving the Right Balance?” 53 Md. L. Rev. 1051 (1994)

*Hoge, Steven K., "The Patient Self-Determination Act and Psychiatric Care," 22 Bull. Am. Acad. Psychiatry & L. 577 (1994)

*Honberg, Ronald S., “Advance Directives,” 11 Journal of NAMI California, also available at NAMInet <<www.nami.org>>

*Jaffe, D.J., “Health Care Proxies and a potentially 'easier' way to get someone help before they become a danger to self or others,” (several short articles on advance directives, available at http://www.schizophrenia.com/ami/coping/proxy.html)

Jacobson, J.A. et al., "Patient's Understanding and Use of Advance Directives, " 160 W. J. Med. 232 (1994)

* Kapp, M., “Implications of the Patient Self-Determination Act for Psychiatric Practice,” 45 Hosp. & Community Psychiatry 355 (1994)

King, N., Making Sense of Advance Directives, Boston: Klower Academic Press (1991)

Krasik, "The Role of the Family in Medical Decisionmaking for Incompetent Adult Patients: A Historical Perspective and Case Analysis," 48 U. Pitt. L. Rev. 539 (1987)

Larson, E.J. and Eaton, T.A., “The Limits of Advance Directives: A History and Assessment of the Patient Self-Determination Act,” 32 Wake Forest L. Rev. 249 (1997)

Leflar, R.B., “Advance Health Care Directives under Arkansas Law,” 1994 Ark. L. Notes 37
*Lentini, Cece, “Advance directives: A New Area of the Law,” 4 The Key 1 (Summer 1998)(Newsletter of the National Mental Health Consumers' Self-Help Clearinghouse)

*Lieberson, Alan D., “Commentary: Advance Directives _ 1998: A Medical View,” 12 Quinnipac Prob. L. J. 305 (1998)

*Macklin, A., "Bound to Freedom: The Ulysses Contract and the Psychiatric Will," 45 Toronto Fac. L. Rev. 37 (1987)

*Massachusetts Health Care Proxy Task Force, “Consensus Report,” 1992 (available from Massachusetts Health Decision, P.O. Box 417, Sharon. MA 02067)

*McArdle, Edward F., “Advance Directives and the Treatment of Patients with Mental Illness: Can an Advance Directive Avert Court Intervention when the Patient Refuses the Administration of Antipsychotic Medication?” 29 Journal of Psychiatry and Law __ (2001).

*McLean Hospital, “Information on Advance Directives: Health Care Proxies and Durable Powers of Attorney,” 1991 (booklet provided to patients upon admission to McLean Hospital, Belmont, MA)

"Medical Decision-Making and the 'Right to Die' after Cruzan," 19 Law, Medicine & Health Care (Special edition 1991)

Meisel, Alan, The Right to Die, Wiley Law (1989) (annual supplements)

Milani, A.A,, “Better Off Dead than Disabled: Should Courts Recognize a "Wrongful Living" Cause of Action when Doctors Fail to Honor Patients' Advance Directives?” 54 Wash. & Lee L. Rev. 149 (1997)

*Miller, Robert D., “Advance Directives for Psychiatric Treatment: A View from the Trenches,” 4 Psychology, Public Policy, and Law 728 (1998)

*Miller, Robert D., “Patient Responsibilities; The Other Side of the Coin,” 17 T.M. Cooley L. Rev. 91 (2000).

Mower, W.R. & Baraff, L.J., "Advance Directives: Effect of Type of Directive on Physician's Therapeutic Decisions," 153 Archives of Internal Med. 153 (1993)

Mulholland, K.C., Recent Developments, “Protecting the Right to Die: The Patient Self- Determination Act,” 28 Harv. J. on Legis. 609 (1991)
National Health Lawyers Association, "The Patient Self-Determination Directory & Resource Guide," (1991) NHLA, 1620 I Street., NW, #900, Washington, DC 20006
Orentlicher, "The Illusion of Patient Choice in End-of-Life Decisions," 267 J.A.M.A. 101 (1992)

*Perling, Lester J., "Health Care Advance Directives: Implications for Florida Mental Health Patients," 48 U. Miami L. Rev. 193 (1993)

Peters, "Advanced Medical Directives: The Case for the Durable Power of Attorney for Health Care," 8 J. of Legal Medicine 437 (1987)

*Pinkney, D.S., "Advance Directive Could Give Mentally Ill More Treatment Control," Am. Med. News, Dec. 16, 1991, at 3

Posner, N.B., Comment, “The End of Parens Patriae in New York: Guardianship Under the New Mental Hygiene Law Article 81,” 79 Marq. L. Rev. 603 (1996)

*Raddan, J., "Planning for Mental Disorder: Buchanan and Brock on Advance Directives in Psychiatry," 18 Soc. Theory & Prac. 165 (1992)

Rhoden, N.K., “Litigating Life and Death,” 102 Harv. L. Rev. 375 (1988)

*Rissmiller, David J, Erica Musser, Walter Rhoades, Frances R. Rissmiller, Robert A. Steer, “A Survey of the Use of a Durable Power of Attorney to Admit Geropsychiatric Patients,” 52 Psychiatric Services 98 (2001)(About half the facilities surveyed have policy to allow admission by a health care agent; 37 percent believed it is optional to AD or civil commitment to force admission of demented patients; 47 percent believed such patients could be admitted against their will only by use of civil commitment.)

*Rosenfeld, Elizabeth Ann, Note, “Mental Health Advance Directives: A False Sense of Autonomy for the Nation's Aging Population,” 9 Elder L. J. 53 (2001)

*Rosenson, M.K. & Kasten, A.M., "Another View of Autonomy: Arranging for Consent in Advance," 12 Schizophrenia Bull. 1 (1991)

Sabatino & Gottlich, "Seeking Self-Determination in the Patient Self-Determination Act," 25 Clearinghouse Rev. 639 (1991)

*Sales, G.N., "The Health Care Proxy for Mental Illnesses: Can It Work and Should We

Want it To?" 21 Bull. Am. Acad. Psychiatric Law 161 (1993)(summarized on KEN www.mentalheath.org)

Sachs, Miles & Levin, "Emergencies and Advance Directive," 20(6) Hastings Center Report 42 (Nov/Dec 1990)

Schlesinger, S.J. and Scheiner, B.J., Practicing Law Institute Tax Law and Estate Planning Course Handbook Series, Estate Planning and Administration PLI Order No. D4-5231 Handling Your First Health Care Proxy, Living Will and Durable Power of Attorney (1992)

Sehgal, Galbraith et al., "How Strictly Do Dialysis Patients Want Their Advance Directives Followed?" 267 JAMA 59 (1992)

Sheafor, C.M., Recent Development, “Missouri Health Care Durable Power of Attorney,” 70 Wash. U.L.Q. 973 (1992)

*Sherman, Paul S., "Advance Directives for Involuntary Psychiatric Care,” Symposium Proceedings: Involuntary Interventions - The Call for a National Legal and Medical Response, Univ. of Texas/Houston, Health Science Center (1994)

*Sherman, Paul S., “Brief on Advance Directives for Involuntary Psychiatric Care,” (summarized on KEN www.mentalhealth.org)(available from author)

*Sherman, Paul S., “Computer-Assisted Creation of Psychiatric Advance Directives,” 34 Community Mental Health J. 351 (1998)

*Sherman, Paul S., “On the Advantages to Funders and MCOs of Sponsoring the Creation of Advance Directives for Psychiatric Care.” (summarized on KEN www.mentalhealth.org)(available from author)

*Sherman, Paul S., “Toolkit for Creating Advance Directives for Health Care.”(summarized on KEN www.mentalhealth.org)(available from author)

Short, D., "A Physician's Misgivings Regarding the Advance Directive," Ethics & Med. (Spring 1993) at 7

Shugrue, R.E., “The Patient Self-Determination Act,” Annual Eight Circuit Survey, 26 Creighton L. Rev. 751 (1993)
*Srebnik, Debra S. and LaFond, J.Q., “Advance Directives for Mental Health Treatment,” 50 Psychiatric Services 919 (1999) (Surveying information and suggesting future research.)

Stachura, M.E. "The Rhode Island Health Care Power of Attorney and the Living Will: A Comparative Overview," 43 R.I. Bar J. 15 (1995)

*Stavis, Paul F., “The Health Care Proxy Law: Is it a “Catch 22" for Many Persons with Mental Illness?”, Quality of Care 2 (Sept.- Oct. 1993)(Published by the New York P&A)

*Stavis, Paul F., “The Nexus: A Modest Proposal for Self-Guardianship by Contract: A System of Advance Directives and Surrogate Committees-at-Large for the Intermittently Mentally Ill,” 16 J. Contemp. Health L. & Pol'y (1999)

Stefan, Susan, "Silencing the Different Voice: Competence, Feminist Theory and Law," 47 U. Miami L. Rev. 763 (1993)

*Stolle, Dennis P., “Advance Directives, AIDS and Mental Health: TJ Preventive Law for the HIV-Positive Client,” 4 Psych., Pub. Pol'y, & L.854 (1998)

*Sundram, Clarence, "Informed Consent for Major Medical Treatment of Mentally Disabled People: A New Approach," 318 New Eng. J. Med. 1368 (1988)

*Swanson, J., Tepper, M., Backlar, P., & Swartz, M., “Psychiatric Advance Directives: An Alternative to Coercive Treatment?” 63 Psychiatry 160 (2000)

*Szasz, Thomas, "The Psychiatric Will: A New Mechanism for Protecting Persons Against `Psychosis' and Psychiatry," 37 Am. Psychologist 762 (1982)

*Szasz, Thomas, “Parity for Mental Illness, Disparity for the Mental Patient,” The Lancet, October 10, 1998 p. 1213 (available at www.cjnetworks.com/~cgrandy/ articles/ psych_advance_directive)

*Thomas, David L. & Watson, J. Morrissa, “Advance Directives in a Correctional Setting,” 4 Psychology, Public Policy, and Law 878 (1998)

Tomlinson, Howe, Natman & Rosmuller, "An Empirical Study of Proxy Consent for Elderly Persons," 30 Gerontologist 54 (1990).

Wagley, S.M., “After Cruzan: The Changing Art of Drafting Living Wills and Durable Powers of Attorney,” 7 Me. B.J. 160 (1992)
Wheaten, L.S., “Caring for the Incapacitated-A Case for NonProfit Surrogate Decision Makers in the Twenty-First Century,” 64 U. Cin. L. Rev. 879 (1996)

Wheaten. L.S., “ Durable Powers as a Hedge against Guardianship: Should the Attorney- at- Law Accept Appointment as Attorney-in-Fact?” 2 Elder L.J. 39 (1994)

Winick, Bruce, "Competency to Consent to Treatment: The Distinction Between Assent and Objection," 28 Houston L. Rev. 15 (1991)

*Winick, Bruce, "Advance Directive Instruments for Those with Mental Illness," 51 U. Miami L. Rev. 57 (1996)

Zinberg, "Decisions for the Dying: An Empirical Study of Physicians' Responses to Advance Directive," 13 Vt. L. Rev. 400 (1989)

In re: A.C., 573 A.2d 1235, 1250 (D.C. 1990) To determine the subjective desires of a patient, a court should give the greatest weight to advance written or oral directives in order to protect patient's right to choose. The court reversed a trial court authorization for a hospital to deliver the patient's fetus by Caesarean section without first ascertaining through substitute judgment what the patient's wishes would have been.

Allore v. Flower Hosp., 1977 WL 362465, No. L-96-329 (Ohio Ct. App.1997) (Unpublished opinion) Summary judgment granted to defendant doctor who and hospital which failed to honor an AD, when there was no evidence that the defendants knew or should have known of the existence of the directive.

Anderson v. St. Francis-St. George Hospital, 1995 WL 109128 (Ohio App. 1st Div.)(Unpublished)(Ohio Sup. Ct. Rule 2 Applies)(previous decision reported at 83 Ohio App. 3d 221, 614 N.E.2d 841 [1992]). While both the Ohio durable power of attorney for health care act and the advance directive provisions provide immunity from civil liability for following a patient's advance directives, neither provides immunity for failure to follow these directives in the absence of an agreement to transfer a patient to a provider willing to follow the directive. Therefore, a patient is entitled to compensation for the foreseeable injuries proximately caused by the unwanted medical intervention.

Asselin v. Shawnee Mission Medical Center, Inc., 894 F. Supp. 1479 (D.Kan. 1995) There is no private right of action under the Patient Self-Determination Act for failure of hospital to follow its provisions.

Barber v. Superior Court, 195 Cal. Rptr. 484, 489 (Ct.App. 1983) Recognizing that lack of awareness, procrastination and "reluctance to contemplate the need" for ADs makes it a tool which will all too often go unused. * Guardianship of Boyle, 674 A.2d 912 (Me. 1996) Since the enactment of an advance directive statute, "[t]he authority of guardians to authorize or withhold medical treatment is now limited only in the case of a ward who is terminally ill or in a persistent vegetative state and has directed otherwise in a living will." Therefore, court authority is not necessary for a guardian to consent to antipsychotic medication over the objections of a ward, even when the ward has rejected the medication while competent.

In re Browning, 568 S.2d 4 (Fla. 1990) Enforcing written living will and designation of agent, "written declaration or designation of a proxy, in absence of any evidence to the contrary, establishes a rebuttable presumption that constitutes clear and convincing evidence of the patient's wishes."

* Cohen v. Bolduc, 455 Mass. 608, 760 N.E.2d 714 (2002). An agent acting under a valid, activated, unlimited, generic health care advance directive has the authority to admit her unprotesting principal as a conditional voluntary patient to a mental health facility. The hospital acted correctly when it treated the principal's revocation of the directive (Massachusetts allows revocation at any time, regardless of capacity) as a “three day notice” of an intention to leave the hospital and the timely filing of a petition for civil commitment was appropriate. The Massachusetts Supreme Judicial Court's comprehensive opinion includes a survey of state statutes.

In the Matter of the Guardianship and Protective Placement of Edna M.F., 210 Wis.2d 558, 563 N.W.2d 485 (1997); Case Note, 14 Issues in Law and Medicine 205 (1998). If a ward is not in a persistent vegetative state, it is not in the best interests of the ward as a matter of law to withdraw life sustaining treatment unless the ward has executed an advance directive or other statement clearly indicating his or her desires.

First HealthCare v. Rettinger, 342 N.C. 886, 467 S.E.2d 243 (1996) The state Supreme Court held that the wife of a nursing home resident must pay charges for cost of medical treatment provided contrary to her objections and to the husband's living will since the requisite findings required by the living will statute were not entered into the medical chart prior to the treatment and since the wife had signed a contract agreeing to pay for the costs of care. The Supreme Court reversed an opinion of the Appeals Court.

Fiske v. Evangelical Health Systems, 674 N.E.2d 888, 221 Ill. Dec. 95 (1996) Court holds that the defendant hospital did not have any duty under the Illinois Health Care Surrogate Act to inquire into the availability of a surrogate absent a determination by the attending physician that the patient lacked capacity and had a qualifying condition; the patient's estate has a private right of action under the Surrogate Act but the patient's family members or loved ones do not have a private right of action under the Act.
Gabrynowicz v. Heitkamp, 904 F. Supp. 1061 (D.N.D. 1995) Case challenging provision of North Dakota law that limits the implementation of advance directives for pregnant women. Court acknowledged that statute raised constitutional questions, but held it was not ripe for adjudication.

Estate of Greenspan, 137 Ill.2d 1, 558 N.E.2d 1194 (1990)An agent may authorize withholding of artificial nutrition and hydration even through living will statute does not allow such use of a living will.

In re: Gordy, 658 A.2d 613 (Del. Chancery Ct., 1994) A guardian was appointed for a 96- year-old woman with Alzheimer's disease who was not mentally incapacitated and who had refused a gastric feeding tube and had so stated in a 1990 living will. The guardian was instructed to follow the woman's expressed direction regarding gastric feeding.

* Hargrave v. Vermont, No. 2:99-CV-128, U.S.D.C. Vt., (October 11, 2001) appeal to Second Circuit filed February 2002. Vermont Act 114 is facially discriminatory against people with mental illness under the ADA and § 504 insofar as it allows their lawfully executed DPOAs to be abrogated when they have been determined to be in need of care and treatment, since no such provision subjects non-mentally ill individuals to such abrogation, even when honoring the DPOA might result in death.

*In re Janet S., 712 N.E.2d 422 (Ill. App. 1999) Failure of state to allege that it had made a good faith effort to determine whether the patient had executed an advance directive was jurisdictional in nature and reversible error. (Contra, In re Len P., infra.)

* Khiem v. United States, 612 A.2d 160 (DC 1992) A murder defendant, found incompetent to stand trial, appealed from an order directing that he be treated with antipsychotic medication to restore his competence. Among other arguments, the defendant claimed that such treatment would violate his rights under the Health Care Decisions Act. The Court held that the HCDA has no applicability to a dispute between an incompetent pretrial detainee and a prosecutor attempting to enforce the government's law enforcement interest in bringing an accused to trial. Khiem did not have a written advance directive.

*In re Len P., 706 N.E.2d 104 (Ill. App. 1999) The state's failure to allege in a petition for involuntary administration of antipsychotic medication that it had made a good faith effort to determine whether the patient had executed an advance directive was not ground for reversal, but order reversed on other grounds. (Contra, In re Janet S., supra.)

Guardianship of Mason, 41 Mass. App. Ct. 298, 669 N.E.2d 1081 (1996)A case in which a designated agent refused to consent to a "no-code" order. The appellate court upheld the

appointment of a guardian to supersede the agent's authority, holding that such appointment was warranted when agent was not acting in accordance with standards of Health Care Proxy Act.

Osgood v. Genesys Regional Medical Center, (Cir. Ct., Genesee Cty., Michigan)(March 1997) Choice in Dying reports that a Michigan Circuit Court held that a hospital committed a battery when it misrepresented procedures performed in contravention of a durable power of attorney for health care. A jury awarded $16 million for emotional anguish and medical expenses. The parties reportedly settled and have not appealed.

In re O'Connor, 534 N.Y.S. 2d 886, 892, 72 N.Y.2d 517, 531, 531 N.E.2d 607, 613 (N.Y. 1988)The existence of written document suggests author's seriousness of purpose in making health care decisions.

In re Peter, 529 A.2d 419 (N.J. 1987) A durable power of attorney drafted specifically for health care decisions should be honored even though NJ statute does not specifically authorize such powers.

Pocono Medical Center v. Harley, 11 Fiduc. Rep. 2d 128 (C.P. Monroe Cnty, Penn. 1990) Court enforces an oral directive over a written power of attorney which was not durable and did not mention health care.

*Richter v. Vermont State Hospital, (Washington Cnty. Sup. Ct., filed July 17,1997) The complaint alleges that the defendants failed to recognize and comply with the plaintiff's AD. It is also alleged that the hospital retaliated against the plaintiff by restricting his visitors. (Filed by Vermont P&A.)(Pleadings available from NAPAS receptionist.)

In the Matter of Rena, 46 Mass. App. 335 (1999) A seventeen year old patient, a Jehovah's Witness, refused a blood transfusion after she lacerated her spleen in a snowboarding accident. She had executed a written advance directive declaring that she will not assent to a blood transfusion. The Appeals Court held that the trial court had erred by not taking into account the child's maturity in determining her best interests. The Court held that the trial court should then have balanced her best interests, the rights of her parents (who also opposed the treatment), and the state's interests. The Advance Directive, however, apparently was not considered controlling.

In re Roche, 296 N.J.Super 583, 687 A.2d 349 (N.J. Super. Ct. Ch. Div. 1996) An advance medical directive executed by a woman who has been adjudicated incompetent was not legally binding on health care providers, but could be considered by guardian as evidence of ward's subjective intent. The court reasoned that notwithstanding the opinion

of her public guardian and a doctor that the ward clearly understood the nature and effect of the AD, and even though in NJ an incompetent person may revoke and reinstate an AD, the legislature had intended that only competent persons may execute an AD.

*Matter of Rosa M., 155 Misc. 2d 103, 597 N.Y.S. 2d 544 (Sup. Ct. 1991)Court refuses to order ECT for an incompetent woman with previously written statement refusing treatment, even though the statement does not comply with statutory standards.

In re Rosebush, 195 Mich. App. 675, 491 N.W.2d 633 (1992) Previously expressed wishes of a mature minor should be taken into consideration in determining substituted judgment.

*Shambaugh v. Wolk, 302 N.J. Super. 380, 695A.2d 82 (Super. Ct, Chancery Div., 1996) This case is a suit by a stepdaughter against her stepfather to force him to allow her to visit her mother in a mental hospital and later a nursing home. The stepfather defends his action, in part, by claiming that he had the authority to regulate visits as the mother's agent under a power of attorney which includes health care decisions. After finding it had jurisdiction to decide the claim, the court denied cross motions for summary judgment noting that there was a genuine issue of material fact as to what the mother's wishes were. The court noted that her wishes are material since the attending physician had not certified her to be incapable under the AD statute and, besides, that her AD did not expressly or implicitly give the agent the right to make visitation decisions.

Werth v. Taylor, 190 Mich. App. 141, 475 N.W.2d 426 (1991) Patients' prior competent refusal of treatment need not be respected in an emergency because it did not specifically anticipate that refused treatment might be necessary to save patient's life.

Guardianship of Whalen, Mass. App. Ct. 95-J-535 (1995) (unpublished) The Court determined that there are no statutory limits on the subject matter of a durable power of attorney and, therefore, it may include authorization for the attorney-in-fact to make health care decisions. The durable power may stand on its own or be used in tandem with a health care proxy.