A Path Forward

Psychiatric advance directives (PADs) give people living with serious mental illness an important opportunity to plan for future mental health crises while they are able to make and communicate their own decisions. By documenting treatment preferences and appointing a trusted health care agent, PADs can help people maintain autonomy, receive care that reflects their wishes, and avoid unnecessary involuntary treatment and involvement with the criminal legal system.

Yet PADs remain significantly underused in North Carolina. Our new report, A Path Forward: How Unauthorized Practice of Law Reform Can Increase Psychiatric Advance Directive Completion in North Carolina(opens in new tab), by Brianna Looper, Lindsay Bass-Patel, Jeff Swanson, and Marvin Swartz, examines one important barrier: the difficulty of getting assistance to complete these legally binding documents.

“PADs can be an important tool for helping people maintain control over their treatment during a mental health crisis,” said Brianna Looper, Duke University MPP Student, member of the McAtee JustScience Lab, and lead author of the report. “But completing a PAD can be difficult without assistance, and uncertainty around North Carolina’s Unauthorized Practice of Law statute may prevent the very people who are best positioned to help—such as health care providers and peer support specialists—from doing so.”

Co-author Dr. Marvin Swartz, Professor of Psychiatry and Behavioral Sciences and Lead of the Center’s Behavioral Health team, added, “North Carolina can expand access to PADs without sacrificing the protections that UPL laws are designed to provide. A targeted statutory carve-out for trained non-lawyers would allow people with serious mental illness to receive assistance completing these documents, which provides a patient-centered and autonomous approach to treatment.”

Key takeaways

• Psychiatric Advance Directives (PADs) can promote autonomy and improve crisis care. PADs(opens in new tab) allow people to document treatment preferences and identify a trusted decision-maker before a crisis occurs. They can improve patient autonomy and help people receive care consistent with their preferences.
• There is substantial unmet demand for PADs. Research in five U.S. cities found that historically, only 4–13% of psychiatric outpatients had completed a PAD, while 66–77% said they would want to complete one if assistance were available.
• North Carolina's legal aid system cannot meet the need. The state has only one legal aid attorney for every 8,000 eligible North Carolinians, while millions of residents have unmet civil legal needs.
• NC’s Unauthorized Practice of Law (UPL) statute may discourage PAD facilitation. Although non-lawyers can provide legal information, the line between legal information and legal advice is not always clear. This uncertainty can discourage clinicians, peer specialists, and others from helping people complete PADs.
• A targeted statutory carve-out to North Carolina’s UPL statute would allow trained non-lawyers, including psychiatrists and peer specialists, to assist with PAD completion while maintaining safeguards such as approved training, referrals to legal professionals when appropriate, and existing witness and notarization requirements. The report concludes this would be a relatively low-cost way to expand access to PADs while preserving protections for people with serious mental illness.

Read the full report: A Path Forward: How Unauthorized Practice of Law Reform Can Increase Psychiatric Advance Directive Completion in North Carolina(opens in new tab)

Learn more about the Wilson Center’s work on Psychiatric Advance Directives(opens in new tab), including our recent grant from the Sozosei Foundation(opens in new tab) to expand our work.