Expert Opinion

Adding Advance Care Planning to the Criminal Justice Diversion Dialogue

Health Care Advance Directive is not a common part of the dialogue had by those involved in the criminal justice system, this article discusses the importance of such conversations.

By Heather Zelle, JD, PhD, and Michael Binns, BA

Officer John Monahan responds to the late-night 911 call from the clerk at the Corner Convenience Store, who reports that an individual is loitering in the parking lot and incoherently shouting.

When Officer Monahan arrives, he finds the store's clerk at the door, not far from an individual sitting on the curb. Upon speaking with the employee, the officer discerns that the seated individual was the one causing the commotion. The man's name, according to the clerk, is Richard “Richie” Bonnie. Richie lives nearby and frequents the store. Officer Monahan walks over to Richie and begins asking him a few questions. Clearly agitated and not interested in answering any questions, Richie ignores the officer, muttering to himself under his breath. Stepping away to radio in a request for Richie's history, Officer Monahan discovers little information on the alleged perpetrator other than a handful of arrests for minor misdemeanors over the last few years.

With a dearth of information and an uncooperative individual, Officer Monahan takes Richie into custody and transports him to the police station for booking. We are all likely familiar with a story like Richie's, in which someone is in need of assistance, not punishment, yet options seem limited and lead to criminal justice involvement. A growing number of tools, trainings, and strategies have been developed to avert such scenarios. One tool with wide application that is not often part of the dialogue, though, is the Health Care Advance Directive.

Generally, Advance Directives (ADs) have evolved as legal documents that allow an individual to (1) choose an agent to make health care decisions for them and/or (2) write down his/her instructions and preferences about future health care treatment (including medical as well as end-of-life care). Importantly, individuals can include information and instructions specific to mental health care, and over half of states in the U.S. have specific statutes addressing the creation of ADs with mental health care details (often called Psychiatric Advance Directives, or PADs; Menninger, 2008).

ADs have the potential to be excellent tools for responding to mental health crises. They are designed to be activated when an individual lacks capacity to make informed decisions about his/her care. Even before someone is found to lack capacity, though, ADs are valuable resources because they house relevant information, such as symptoms indicative of decompensation and crisis, effective strategies to stabilize the person, preferred locations for treatment, and important contact information.

Research on PADs is supportive of their use. Between 66 and 77 percent of mental health care consumers say they desire a PAD (Swanson, Swartz, Ferron, Elbogen, & Van Dorn, 2006a; see also Srebnik, Russo, Sage, Peto, & Zick, 2003; Swanson et al., 2006b; Swanson et al., 2003).

The process of completing a PAD leads to increased working alliance with mental health care providers and to increased feelings of having one's treatment needs met (Swanson et al., 2006b).

Importantly, a quasi-experimental study conducted by Swanson and colleagues (Swanson et al., 2008) demonstrated that completion of a PAD reduced the number of coercive treatment incidences (including transportation to ER by police, involuntary medication, and involuntary hospitalization) by half over the course of two years.

Of course, we also know from research that use of ADs, psychiatric or otherwise, remains low across the country (Swanson et al., 2006a; U.S. DHHS, 2008). Implementation of these tools has been notoriously difficult, but continued efforts are warranted. Some barriers to implementation, such as clinicians' doubts about the usefulness of ADs, have been directly addressed in the research (e.g., 95 percent of PADs are rated clinically useful and consistent with appropriate treatment standards contrary to concerns raised by clinicians; Srebnik et al., 2005; Swanson, McCrary, Swartz, & Elbogen, 2006c). Low rates of completion are increased by nearly 30-fold when facilitation is provided (Swanson et al., 2006b). In addition, researchers and scholars are beginning to recognize the need to better frame PADs as a process, which implicates other areas of research and theory, such as health behavior change and dissemination and implementation concepts (Nicaise, Vincent, & Dubois, 2011; Zelle, Kemp, & Bonnie, in preparation).

We suggest, therefore, that PADs lie at the nexus of psychology and law not only because they are legal tools in the context of mental health care, but also because psychological research and theory are vital for growing PADs to their full potential as legally-founded mental health care tools. Work on PADs may be focused on policymaking, for example, as we continue to see efforts to reform mental health law in the United States. PADs are tools aimed at preventing (the escalation of) mental health crises, but as is often the case, preventive tools and strategies are eclipsed by pressing concerns about ensuring the safety of individuals and the public. For example, the “assisted outpatient treatment” provisions of the Helping Families in Mental Health Crisis Act of 2013 are currently garnering a great deal of attention. Safety concerns also drive state-level policy, as well (e.g., Killough, 2014; Vozzella, 2014). Even when legislation is passed that promotes the dissemination of preventive trainings and tools (e.g., Virginia's House Bill 1222 passed in April), PADs are frequently overlooked. Thus, there is room to improve the policymaking dialogue by encouraging consideration of tools like PADs as complementary to new and existing policy responses.

Alternatively, work on PADs may take a form more familiar to AP-LS members—empirical research on how these tools may be integrated into criminal justice diversion strategies and mental health service provision. For example, CIT-trained officers in Albemarle County (and surrounding counties) of Virginia learn that they may ask persons who appear to be in crisis if they have an Advance Directive or crisis plan. Officers have reported that this is sometimes helpful for engaging otherwise reticent individuals. Officers may then be able to determine a crisis contact to call or which emergency care avenue is best, rather than having to resort to booking the individual simply to assure some level of safety.

Basic acknowledgement that he has an AD, thus alerting Officer Monahan that the local crisis stabilization unit is a more appropriate destination. Or, perhaps Richie remained uncommunicative and even became physically resistant when Officer Monahan attempted to escort him to the patrol car, necessitating an arrest. In that case, an AD may prove helpful to jail staff tasked with assessing and caring for an agitated inmate about whom they otherwise know very little. Richie's AD may help jail staff to identify the best medication for him in a more expedient manner. An AD might also inform a point of civil legal decision making—temporary detention and/or involuntary commitment hearings, during which information about Richie's past crisis care needs can help determine the best avenue for securing his safety and treatment with minimal infringement on his liberty.

All of these “intervention points” in the justice system are merely conjecture at this point, and do not even reach how ADs might be integrated into jail/prison services during incarceration and beyond. Of course, ADs are not panaceas and cannot “solve” the many areas we seek to improve at the intersection of mental health care and the law. Nevertheless, the many plausible points at which an AD might help overcome barriers to the provision of mental health care, and perhaps even avoid penetration into the criminal justice system, warrant the attention of psychology and law researchers and practitioners.

Learn more information about Advance Directives and the ongoing project in Virginia. (The authors would like to thank Prof. Richard Bonnie and Dr. John Monahan for amicably allowing the use of their names for the vignette.)


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Zelle, H., Kemp, K., & Bonnie, R. J. (in preparation). Embedding advance directives in routine care for persons with serious mental illness: The challenge of implementation.