We pride ourselves as being a state that leads the nation in understanding that mental illness should not be a basis for discrimination. There is discussion afoot that ignores that principle when it comes to medical treatment.
The issue: long hospital stays by a few people in the state’s custody who have refused to take medications that could help address the illness.
Existing law allows for involuntary administration of drugs by court order when such a person lacks the capacity for informed consent in a process that can take a number of weeks.
That timeline begins only after an involuntary commitment, which rarely occurs before 30 days. (During that time, a patient doesn’t even get an automatic preliminary review by a judge to determine whether he or she is being held legally.)
The Shumlin administration suggests that Vermont law is “too lenient” when it comes to laws that protect the right of a person with a mental illness to make his or her own medical decision. That’s barking up the wrong tree.
No one has suggested — God forbid — that a person with legal capacity should not be able to make his or her own medical decisions. That deeply embedded constitutional right is enshrined in our law: “The state of Vermont recognizes the fundamental right of an adult with capacity to determine the extent of health care the individual will receive.”
What’s being lost in the public discussion is the fact that most people with a mental illness still have the capacity to make an informed decision about different types of treatment, including the option of medication.
Vermont’s Supreme Court has explicitly ruled that a person’s refusal to take psychotropic medication is not, in and of itself, grounds to determine that he or she lacks capacity. There are some valid concerns about the risks of these psychotropic medications, and medication is not the only treatment option.
It is for the few individuals who cannot provide legal consent that we struggle to resolve how to address substitute decision-making, particularly in the emotionally wrought situation when an aware individual is objecting to and actively resisting use of a drug that will affect his or her thinking and sense of self.
It is worth looking at how the process differs for people with other than a psychiatric illness.
First, there is an assessment of capacity. If a person is found to lack the ability to make the specific medical decision, a substitute decision-maker is identified.
Typically, if there is no conflict of interest, a family member is involved. If the person has an advance directive, an agent is the decision-maker. If necessary, a court can appoint a guardian.
Secondly, we recognize the right of the patient to have a decision made that is based on what he or she would have wanted. The law says that when a court-ordered guardian makes a medical decision, “consent shall be given or withheld consistent with the manner in which the person under guardianship would have given or withheld consent, provided there is sufficient information concerning the person’s wishes.”
Third, it is the substitute decision-maker, not the court or the physician, who considers the alternatives and provides the consent — or not. A patient who objects to the guardian’s decision has a right to a court review.
Finally, our guardianship laws allow for more rapid action in urgent medical situations. That isn’t available under the court process for people with a mental illness.
If we treated people with a mental illness as people worthy of the same legal rights and protections as everyone else, we would enable those who lack capacity to get access to the treatment they would have wanted, as rapidly as needed.
It would be called “parity.”
Rep. Anne Donahue, of Northfield, is a member of the Human Services Committee and identifies herself as a person in recovery from a mental illness.MORE IN Commentary
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