Working Paper No. 00-24:
Nexum: Mental Health Advance Directives by Contract

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Date Posted: 2000

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Abstract:

The "Nexum" (the Latin term for the first contract recognized by Roman law) is a new approach for advance directives for persons with mental illness that can ameliorate many of the problems occurring with general health care advance directives. The Nexum contract provides that the patient and treatment system/provider negotiate for: (1) the definition incapacity and consequential need for mental health treatment; (2) acceptable choices within available and appropriate treatments and (3) agreement to honor the patient's wishes in good faith or submit the issues, disagreements or ambiguities to an effective, inexpensive and expeditious quasi-judicial adjudication system. For the first time in law a patient's advance instructions and consents for mental health care are based on a contractual model, rather than the ubiquitous testamentary model that is nothing more than a unilateral declaration by the patient without reciprocity from treatment providers. Since a Nexum contract is inherently bilateral its mutuality would not only commit the patient to treatment of his or her choice but would significantly commit the treatment system to the patient through a promise to honor his or her choices in good faith or refer the matter for advice, interpretation or enforcement under a well-regarded mandatory arbitration system. This Nexum article provides national charts of current mental health and general heath advance directives as well as a model law for implementing the Nexum system.

Despite all fifty states and territories have laws authorizing advance directives, they unfortunately have not had widespread acceptance by patients or faithful implementation by physicians as desired by Congress when it encouraged their use as a national policy under the Patient Self-Determination Act. Congress' intent was to have to enhance patient rights of autonomy, reduce costs and minimize uncertainties of health care. Studies have found that advance directives for general health care have not been successful because most patients do not get help from their physicians and even when they do exist, many physicians often do not know about them or won't follow the patient's instructions. A large majority of patients would sign one if their physicians would directly participate. However, physicians are reluctant to do so without an economic incentive or a reduction of associated legal disincentives. For persons with mental illness general health advance directives sometimes present another pernicious problem by permitting inadvertent self-cancellation by recognizing an incompetent revocation by the patient. This "Catch-22" thus defeats the purpose, benefit and autonomy enhancement underlying its creation. The Nexum addresses these and provides some solutions to these problems that includes a model statute and a national chart of related state statutes.