When patients with psychiatric disorders are hospitalized, the type of admission determines the treatment plan. Civil commitment admissions include the following:

• Voluntary admissions
  
• Emergency admissions
  
• Involuntary commitments (indefinite duration).

Each state has specific statutory regulations pertaining to each admission status that mandate procedures for admission, discharge, and commitment for treatment.

10.2.1 Voluntary Hospitalization

Patients who present themselves at psychiatric facilities and request hospitalization are considered voluntary admissions. Likewise, patients evaluated as being a danger to themselves or others or are so seriously mentally ill that they cannot adequately meet their own needs in the community but are willing to submit to treatment and are competent to do so have voluntary admission status.

Voluntary patients have certain rights that differ from the rights of other hospitalized patients. Specifically, they are considered competent (unless otherwise adjudicated) and therefore have the absolute right to refuse treatment, including psychotropic medications, unless they are dangerous to themselves or others, as in a violent destructive episode within the treatment unit (Rennie v. Klein, 1981).

Voluntary patients do not have an absolute right to discharge at any time but may be required to request discharge. This time delay gives the healthcare team an opportunity to initiate a procedure to change a patient’s admission status to involuntary if the patient meets the necessary statutory requirements. Many people with mental illness can be voluntarily treated; however, the state cannot require that a patient receive treatment in any setting if he or she refuses. Therefore, many people with psychiatric disorders whose behavior causes family, community, and social problems do not and cannot receive psychiatric care if they are unwilling to be voluntary patients.

10.2.2 Emergency Admissions

Patients are considered to have emergency admission status when they act in a way that indicates that they are mentally ill and, due to the illness, are likely to harm themselves or others. State statutes define the exact procedure for the initial evaluation, the possible length of detainment, and attendant treatment available.

All patients who enter the hospital as emergency admissions enter healthcare facilities for the purposes of diagnosis, evaluation, and emergency treatment. At the end of the statutorily limited admission period, the facility must discharge the patient, change his or her status to voluntary admission, or send representatives to a civil hearing to determine the need for continuing treatment on an involuntary basis.

During the emergency admission, the patient’s right to come and go is restricted, but the right to consult with an attorney to prepare for a hearing must be protected. Patients may be forced to take psychotropic medications, especially if they continue to be dangerous to self or others. However, more invasive procedures, such as electroconvulsive therapy or psychosurgery, are not permitted unless they are ordered by the court or consented to by the patient or legal guardian. No treatment should impair the patient’s ability to consult with an attorney at the time of a hearing.

10.2.3 Involuntary Hospitalization

In the US, a person who refuses psychiatric hospitalization or treatment but poses a danger to self or others and is mentally ill and for whom less drastic treatment means are unsuitable may be adjudicated to involuntary admission status for a period of time. The exact legal procedure may differ in each state, but the standards for commitment are similar. Although the statutory language for involuntary hospitalization (civil commitment) varies from state to state, three principles serve as the basis for all commitment laws. The individual must be:

• mentally ill, and
  
• dangerous to self or others, or
  
• unable to provide for his or her own basic needs (i.e., “gravely disabled”).

Involuntary hospitalization, even when accomplished entirely in the patient’s best interests, represents an extreme curtailment of civil liberty. To deprive a person of liberty by involuntary commitment is a serious matter, and the legal protections are strict. The statutes of each state concerning commitment procedures must reflect the Supreme Court’s standard of the protection of the right to liberty. In most statutes, the term “mentally ill” is not clearly defined but requires the petitioner (e.g., the psychiatrist) to state the psychiatric problem necessitating hospitalization and in some states that proof must be “clear and convincing” (Addington v. Texas, 1979). In some states, additional criteria such as an overt act of violence toward self or others or damage to property within a specified period of time, or the absence of available less restrictive treatment alternatives, must also be established before people can be hospitalized against their expressed desires. Most states allow for a period ranging from 1 to 20 days of emergency hospitalization for the purposes of providing immediate crisis intervention and completing a more detailed evaluation. All states require periodic reassessment of the need for continued involuntary hospitalization. Most states require that a clinician other than the primary treatment provider must certify mental illness, dangerousness, and/or grave disability under these circumstances.

When persons are involuntarily hospitalized, they generally maintain their rights to manage their own financial matters, to communicate with others via phone or mail, and to receive personal visitors. They also have rights to privacy including space to secure valuables, private bathing and toilet facilities, and personal space. These rights are typically statutorily quantified. In most states, the right of psychiatric inpatients (including those involuntarily committed) to refuse therapy and/or medication is also preserved. Involuntarily hospitalized patients require a separate judicial proceeding to establish incompetence to manage finances before a guardian can be appointed or to establish incompetence to make medical decisions before involuntary medications may be ordered. Patients’ rights in hospital settings may be restricted by the clinical judgment of treating professionals in consideration of both the patient’s interests and the rights and safety of other persons within the hospital. Disputes over violations of patient’s rights in such situations are inevitable. In many jurisdictions, a civil rights officer or ombudsman is mandated to assist in resolving these disputes.

10.2.4 Minors and Hospitalization

A special population of psychiatric patients is minors or juveniles. Until recently in the US, parents or guardians had an almost absolute privilege to admit their minor children younger than 18 years for mental health treatment. State recognition of some rights of more mature children (12–18 years old) to protest such treatment, however, has eroded this absolute right.

In 1979, the US Supreme Court, in Parham v. J.R., gave a more definite standard for juvenile admissions, to which state statutes and hospital policy should conform. The Court held that parents can authorize the admission of juveniles, but accompanying the admission, some neutral fact-finder should determine whether statutory requirements for admission are satisfied. Furthermore, an adversarial hearing for admission is not required, nor does due process require that the fact-finder be legally trained or be a hearing officer. By ruling in this way, the court balanced the competing interests of the rights of parents and guardians to control the lives of their children with the right of children to due process before their liberty is limited.

Psychiatric clinicians need to be mindful of these procedural protections for the benefit of their juvenile patients. Limiting hospitalization to statutory requirements is an important advocacy activity for pediatric patients with mental illness.

In situations where patients must be involuntary hospitalized, it is impossible to obtain informed consent, but in all other instances practitioners are obliged to obtain consent for treatment. The requirement that a physician obtain an individual’s informed consent to medical treatment (Canterbury v. Spence, 1972; Natanson v. Kline, 1960) is based on a consensus that individuals have the right to control access to their own bodies and to make informed decisions about their own health and well-being decisions. Informed consent means consent that a recipient of healthcare gives to treating providers in an interaction (or series of interactions) that enables him or her to understand a proposed treatment or procedure, including the following:

• The way the treatment or procedure will be administered
  
• The prognosis if the treatment or procedure is given
  
• Side-effects
  
• Risks
  
• Possible consequences of refusing the treatment or procedure
  
• Other alternatives.

In the US, the landmark Canterbury v. Spence (1972) decision ruled that patients could truly be informed only if their provider shared with them all things that the patient “would find significant” in deciding whether to permit or participate in a particular treatment regimen. Informed consent requires that healthcare professionals give patients adequate and accurate knowledge and information. It mandates that the patient have the legal capacity to give consent and give it voluntarily.

All patients have the right to give informed consent before any healthcare professionals perform interventions. The administration of healthcare treatments or procedures without a patient’s informed consent can result in legal action on the patient’s part against the primary provider and the healthcare agency. The patient will prevail in such a lawsuit, alleging battery (touching another without permission), if it can be proven that he or she did not consent to the procedure. Consent is an absolute defense against battery, which is why informed consent is so necessary in healthcare situations.

As a broad mandate for informed consent, the US Congress passed the Patient Self-Determination Act (PSDA), which went into effect on 1 December 1991. The PSDA requires healthcare facilities to provide clear written information for every patient concerning his or her legal rights to make healthcare decisions, including the right to accept or refuse treatment.

Informed consent also protects patients from being subjected to experimental treatments and research projects without their knowledge and agreement. Because of the complexity of informed consent issues with patients who have psychiatric disorders, institutions with programs involving research or experimental treatment approaches must have institutional review boards to evaluate such projects and programs and to approve or disapprove them based on strict patient protection criteria.

There are several exceptions to the requirement of informed consent. In emergency situations where the patient experiences an acute threat to life requiring immediate medical attention, consent is implied when the patient is unable to communicate a choice (e.g., is unconscious). Circumstances and options when the patient is incompetent are addressed elsewhere in this chapter. A competent patient may also decline being informed of all facts relating to a medical decision (waiver) and a physician may choose to withhold full disclosure if disclosure would seriously worsen a patient’s condition or impede rational decision-making (therapeutic privilege). In situations where a psychiatrist asserts an exception to informed consent, his or her reasoning should be clearly documented in the medical record.

Competent individuals have the right to consent to or to refuse treatment, but the same rights are rarely extended to minors. The legal rights of children in the context of healthcare in the US are a patchwork of competing opinions, laws, and attitudes and there are a number of court decisions affecting children’s rights that are not necessarily coherent. In fact these decisions may range from a paternalistic or progressive approach, which focuses on nurturance and protection, to an individual rights approach, which emphasizes the child’s age-appropriate right to personal autonomy. Nevertheless, it is crucial to engage children in their treatment to the extent that the clinician can make this happen, because consent, assent and transparency go to the heart of the therapeutic alliance, and effective treatment as patient choice appears to be an important determinant of treatment success.

Effective residential treatment of children often depends on the facility’s relationship with both the child and the family. One of the major components of positive child outcomes in residential treatment for children is a family’s involvement in their child’s treatment planning. Family involvement in residential care is also a major component in some successful restraint reduction programs.

Although family involvement may be essential to successful treatment outcomes, this tripartite relationship among the child, parent or guardian, and care provider increases the complexity of the informed consent process since the roles of each often are more difficult to define. Each party may have conflicting obligations, interests, needs, desires and wishes that are further compounded by medical, ethical and legal standards, case law, and parental rights. When these events occur, the duty of the pediatric healthcare professional to a youth exists independent of parental desires, and the professional may be forced into an adversarial relationship requiring court intervention.

Another issue adding to the complexity of informed consent for children is a child’s assent or dissent to treatment. Assent, is a lesser standard than informed consent; however, like informed consent, it indicates that children have been told about the treatment and agree to it. Obtaining assent or dissent to treatment for children and young people recognizes developmental maturation and that, as they mature, they become the “primary guardians of their personal health and the primary partners in medical decision-making” (American Academy of Pediatrics Committee on Bioethics, 1995). Quality treatment acknowledges children’s rights and encourages them to play a major part in their treatment planning. Although parental authority still overrides children’s assent or dissent, whether a youth assents or dissents may play a powerful role in treatment success.