Legal Issues in Inpatient Psychiatry



Legal Issues in Inpatient Psychiatry







I. CASE EXAMPLES


A. CASE EXAMPLE 1

A 23-year-old man is tolerated by his family despite a slow slide into a withdrawn, catatonic state, until one day, after an argument, he assaults his father. The family then brings him to the local psychiatric hospital, insisting on his admission. At that time, he is found to be unwilling to undergo a mental status examination, saying to the examiner only, “Do whatever you want to me.” He sits rigidly, appears to be hallucinating, and does not respond when asked if he is willing to sign himself into the hospital. He is admitted on an emergency commitment on grounds of dangerousness to others.

Once in the hospital, the patient begins to take antipsychotic medication, becomes a little less withdrawn, and is more open in expressing his fears that certain people are out to harm him. Now willing to talk with the unit staff and male psychiatrist in charge of his care, he steadfastly maintains that he is not ill and not in need of hospitalization. Nonetheless, he generally adapts well to the unit milieu. When his emergency commitment expires, he is committed by a court for a 6-month period, the judge agreeing that he represents an imminent danger to his family.

Approximately 4 months into his stay, after a series of increasingly silent therapy sessions, the patient fails to appear for his appointment, and the psychiatrist goes to seek him out in his room. Attempting to engage the patient in conversation, the psychiatrist is surprised to find himself picked up and carried out the door by the patient, who closes the door behind him and refuses to come out. From that point on, the patient also refuses to take his medication.

For nearly 3 weeks, the psychiatrist attempts to talk directly with the patient but is continually rebuffed. Other staff members, with whom the patient will talk, report that he says that he hates his doctor, “for what he did to me, robbing me of my freedom.” Recognizing that his patient is obtaining little benefit from a hospitalization characterized by neither medication nor psychotherapy, the psychiatrist seeks out the chief psychiatrist in the hospital to discuss the situation.


B. CASE EXAMPLE 2

No one on the psychiatric unit of a general hospital had expected that Mr. B. would be the average patient, yet no one was quite prepared for what is occurring, and as the legal-psychiatric consultant hears the case presented to her, she frowns in thought.

Mr. B. is in his mid-20s and bears the triple burden of recurring psychotic episodes, intellectual disability, and a seizure disorder; surprisingly, however, none of these bears on his admission to the hospital. Instead, it is his tendency to set fires when distressed that provoked a string of arrests and court-ordered evaluations, the last of which evolved into a civil commitment for dangerousness.

On the ward, however, fire setting has not been attempted; the patient has tolerated being restricted from matches and has made no efforts to obtain them. The problem behaviors are (1) the
patient’s pattern of finding and swallowing an appalling number and variety of small metal objects such as screws, tacks, and tabs from soda cans and (2) a tendency, when frustrated, to bang his head violently and repeatedly against the wall.

Even these behaviors are far from novel to the seasoned staff; what makes the situation intolerable (and provokes the consultation) is that the patient is always smiling delightedly while engaged in these activities, treats them apparently as teasing games to be played with the staff, and appears to relish, with great enthusiasm, the dismay, consternation, and fury evoked in the unit personnel.

The chief resident relates how the treatment team initially responded to the first screw swallowing and head banging with aggressive medical, neurologic, and radiologic attention, but with each successive episode the enthusiasm for these procedures has waned. The medical consult service has taken to sending back contemptuous notes after working up the patient yet again, questioning the psychiatric staff’s inability to “keep this patient from harming himself.”

The chief sums up the problem: “We could restrain the patient, but that could go on forever; there’s no endpoint. Medication doesn’t work; talking doesn’t work; seclusion doesn’t work; we can’t just do nothing! What do we do?”


C. CASE EXAMPLE 3

The new psychology intern looks grimly around the closet-sized office to which he has been assigned for his supervised inpatient year of practical experience at the psychiatric hospital. After a strenuous but obligatory cleaning frenzy he is just beginning the laborious process of moving his books, papers, and equipment into place when the telephone rings. Feeling a mixture of excitement and nervousness, he answers.

There is a short, heavy-breathing pause. Then a hoarse voice inquires, “Are you my therapist?”

The intern begins to explain that he has been assigned a few patients but has not yet had a chance to meet them; he is interrupted somewhat brusquely. “Look, I’ve been assigned to you. And what I wanna know is, what are my rights in this hospital? I wanna know what they are.”

The psychology intern has no idea but recalls a handout from the orientation course just presented to all the interns. Groping for his briefcase, he fumbles out the patients’ rights booklet distributed at orientation and begins to read aloud the state statute summarized therein. When he reaches the listing about the right to use the telephone, the caller stops him.

“That’s what I thought. Listen, you know, I’m calling you on the hospital phone and they’re standing right here. They aren’t letting me have my cellphone up here in the locked unit, and I wanna call my girlfriend and my lawyer, and I wanna complain about this dump to somebody in authority downtown, and they won’t let me. They won’t even let me sign out!”

The psychology intern is nonplussed.

“Uh, okay, well, I’ll tell you what, I’ll come up to meet you, and we can try to figure this out. You’re on the locked unit, you say?”

The patient grunts assent.

“Fine! Uh, I mean, I’ll be right there.”

Arriving somewhat winded at the locked unit on the fourth floor, he urgently thumbs the buzzer for admission. For long moments he fidgets as nothing happens. Finally, the door is jerked open. A tall, burly man in jeans and a Grateful Dead T-shirt shushes him; he is disturbing the unit’s patient meeting. Abashed by the large surrounding audience, the intern asks to see the patient who called him. Rolling his eyes, the man points him to a hallway, from which someone is signaling to him. The intern goes to meet his first patient.

The psychology intern introduces himself to the patient, who is a short, slender man in his 40s, whose features are marred by two scars extending into his cheeks outward from the corners of his mouth. Trying not to stare at this deformity, the intern obtains a repetition of the complaint with more details, couched in an unmistakable tone of blame for him, the intern. He is impressed by the fact that a violation of rights does, indeed, appear to be taking place. He promises the patient that he will investigate and try to right this wrong. A hurried check with a nurse in the hallway who is hastening to another task confirms the patient’s complaint. Becoming annoyed at feeling thrust into the role of persecutor of a patient with whom he has barely started to work, he goes in search of the supervising clinician on the ward.



II. LEGAL ISSUES


A. RIGHT TO TREATMENT

One of the most misunderstood of the legal doctrines that have affected psychiatric practice is the idea that psychiatric patients have a right to receive treatment. Although the concept has been used in various ways by the activist mental health bar, by the mental health professions, and by patients themselves, the courts’ definition of the “right to treatment” is a narrow and somewhat shaky formulation that has been limited in its impact on a person with mental illness.


1. Early History of the Doctrine

The idea that treatment is a right of the psychiatrically ill patient first arose as a theoretical construct in the early 1960s. Even in its initial appearance, the nascent right was limited to the involuntarily committed patient; the theory was that the involuntary patient was entitled—as a matter of fairness, given the deprivation of liberty that hospitalization entailed—to receive active treatment and not merely confinement and the barely adequate essential services that many large state facilities then provided. The earliest court decision on the issue, Rouse v. Cameron in 1966, dealt with a patient who was committed after being found not guilty by reason of insanity but was receiving no treatment. Although the case was decided on statutory grounds, there were hints in the decision of a constitutional right to treatment.

Not until 1971, in the famed Wyatt v. Stickney class-action suit that challenged conditions in the Alabama state hospitals, was the right to treatment enunciated by a court on constitutional grounds. Failure actively to treat involuntary patients was deemed a deprivation of Fourteenth Amendment rights to due process and equal protection because treatment was due to the patient as a quid pro quo for involuntary detention. It is important to note that this case was decided at the federal district court level and affirmed at the level of the court of appeals but was never considered by the US Supreme Court.

A case that did reach the nation’s highest court was O’Connor v. Donaldson. This problematic 1975 decision considered a Florida case with a unique situation: A Christian scientist with paranoid schizophrenia was involuntarily hospitalized for 14 years despite the absence of dangerousness to himself or others, without treatment that he would accept (he refused medication, a fact usually overlooked in discussions of the case), and in the face of offers to care for him from responsible outsiders. He was judged to have been deprived of his right to liberty guaranteed by the Fourteenth Amendment, but the contortions of the court to fit the scope of the decision to specific facts of the case reveal on what uncertain ground the right to treatment rested. The court held that a nondangerous, involuntarily committed patient could not be hospitalized, in the presence of viable alternatives in the community, “without more”—presumably appropriate treatment.

Notwithstanding Donaldson, numerous lower courts followed the lead of the Wyatt decision, finding a right to treatment for involuntary patients. The Wyatt court, in an approach later followed in other jurisdictions, issued a detailed decree implementing its decision, defining minimally acceptable treatment in precise terms, down to the number of square feet of floor space required for each patient and the number of cooks who must be employed in the kitchen.

Yet, as popular as this approach became, it was evident that the courts were having difficulty enforcing these decrees. When legislatures refused to appropriate sufficient funds to pay for the improvements, the courts were confronted with a constitutional crisis. In the end, they had little power to coerce recalcitrant legislatures. Although the early right-to-treatment decisions clearly led to improvements in many state facilities, the limitations of the approach are evident from the subsequent history of Wyatt. The court continued to supervise its decree for more than three decades. At no point, however, did Alabama facilities come fully into compliance with the initial judgment.


2. The Consent Decree

In an effort to avoid the adversary posture and heel-dragging by the state that characterized the Wyatt litigation, parties to litigation began to turn to consent decrees to resolve right-to-treatment suits. The decrees embody agreements between the two parties, typically the state’s department of mental health and a mental health advocacy group, that, without finding fault, specify the conditions to be changed and have the force of law. A master to supervise the
administration of the decree can be appointed by the court. Prominent elements of the decree are usually the familiar numerical ratios for staff and facilities, plans for accelerating deinstitutionalization, and the promise of individualized treatment plans. The plaintiffs avoid lengthy litigation and gain the presumed cooperation of the state in implementing agreed-to changes, whereas the state avoids the risk of more sweeping judicial orders and often gets to maintain administrative control of the system. In principle, then, the consent decree is to everyone’s advantage.

But the consent decree, too, proved not to be a panacea. The executive branch of a state government would sign the decree, but its implementation was still dependent on legislative appropriations, and they were not always forthcoming. Despite the hope of a cooperative effort raised by these decrees, many of the more prominent cases remained short of full compliance years after the decrees were issued.


3. Youngberg and the Right to Treatment

The US Supreme Court finally offered its view of the right to treatment in 1982 in Youngberg v. Romeo, a case involving a patient in a Pennsylvania facility for people with intellectual disabilities. Basing the right on patients’ constitutional liberty interests, the court ruled that involuntary patients were entitled only to that treatment required to assure freedom from unnecessary restraint and preventable assault—but no more. To the extent that these rights conflicted with each other (e.g., to prevent a provocative patient from being assaulted one might have to restrain his or her freedom of movement) or had to be compromised for legitimate therapeutic reasons, patients were only entitled to a decision by a qualified mental health professional that abrogation of their rights was required.

The narrow ruling in Youngberg was read by many advocates as the death knell of the right to treatment. In fact, the right has shown surprising resilience in the decades since then. Three factors have fed continued efforts to expand patients’ right to treatment: broad readings of Youngberg, state law rights, and the Civil Rights of Institutionalized Persons Act (CRIPA).

a. Broad readings of Youngberg. Lower courts have not found Youngberg as restrictive as many supposed they might. After paying obeisance to the Supreme Court’s analysis, some lower courts have fashioned orders that look remarkably like the original decree in Wyatt. Some courts have also been creative in interpreting the requirement for professional judgments; one federal court, for example, declared that a facility that was unaccredited was presumed not to be making decisions according to accepted professional criteria.

b. State law rights. When revising their mental health laws in the 1970s (a major era of reform), many states inserted broad language vowing to provide appropriate treatment to all mentally ill people. This language has been the basis for a number of lawsuits accusing states of not keeping their promises. Success has been variable. Some courts have agreed that the states accepted enforceable obligations on themselves, even with regard to voluntary patients and outpatients. Other courts have interpreted the statutory language as entirely hortatory and therefore nonenforceable.

State constitutions also provide a potential source of law supporting a right to treatment. Most states have provisions echoing the federal constitutional rights to liberty and due process, but state courts are not bound by US Supreme Court interpretations of the federal constitution when deciding how far state provisions extend. These provisions have been used in other patients’ rights contexts (see discussion of the right to refuse treatment, Sec. II-C), and they may yet prove to be an important bulwark of patients’ right to treatment.

c. Civil Rights of Institutionalized Persons Act. In 1980, Congress passed CRIPA. This enabled the Justice Department to investigate conditions in state institutions and bring suit against states found to be violating patients’ or inmates’ federal rights. Although few cases have reached the courts, a large number of investigations have been conducted, often ending with agreements by the states to improve institutional conditions. In theory, Youngberg defines, and limits, patients’ rights under CRIPA, but the consent agreements that have resulted sweep fully as broadly as the Wyatt decree, including increases in staffing levels, controls on medication use, physical plant improvements, and more complete record keeping.


It may be, therefore, that Youngberg was read too narrowly by advocates who feared its impact on the right to treatment. The same kinds of conditions required to protect patients’ liberty interests, and especially to ensure that professional judgments are made when those interests must be compromised, may turn out not to be different from the conditions envisioned as constitutionally required by the courts before Youngberg.


4. What the Right to Treatment is Not

Judicial activism on behalf of psychiatric patients has led many well-meaning individuals to misconstrue the impact of the phrase “right to treatment.” The right is not a guarantee of treatment for all patients, optimal treatment, effective treatment, or one’s choice of treatments.

a. A guarantee of treatment for all patients. Although state laws may provide otherwise, a judicial extension of the constitutional right to treatment to voluntary patients or to outpatients has never occurred. It applies only to involuntarily committed patients. For other classes of patients, states are free to decide whether they want to provide any services at all and can limit or expand them at their own discretion.

b. A guarantee of optimal treatment. Even courts that have chosen to set highly specific criteria for institutions have emphasized that they are concerned with achieving minimal, constitutionally required standards, rather than with requiring the best possible program.

c. A guarantee of effective treatment. The courts can require that professional staff be hired, but they cannot monitor their work so closely as to ensure that all patients receive the care that would be most efficacious in their situation. They can establish the preconditions for treatment but cannot guarantee that adequate treatment occurs. Similarly, courts are powerless in the face of conditions for which effective treatments do not yet exist (e.g., Alzheimer’s dementia). Other court actions establishing a right to refuse treatment may impact the effectiveness of the right-to-treatment rulings (see Sec. II-C).

d. A guarantee of one’s choice of treatments. Hospitals have not yet been required to provide a sufficient array of treatments that patients can decide which to select or refuse. Provision of a single accepted mode of treatment for each patient would seem to be adequate.


5. Future of the Right to Treatment

For all the problems in implementing a right to treatment, there is no question that patients in many state facilities around the country are much better off today than they would have been without the court decisions and consent decrees based on that right. Even when imposed or agreed-on standards have not been met in their entirety, substantial improvements usually have taken place. Those people who recognize that half of a loaf can, indeed, be better than none can perceive the importance of litigation regarding this right. The right to treatment has been, in addition, one of the few areas of mental health litigation in which clinicians and members of the mental health bar generally have been on the same side of the issue. The desire to improve hospital conditions unites almost everyone in the field.

Nonetheless, it is clear that certain costs are attached to this process. When right-to-treatment suits focus on only one part of a mental health system, they can force reallocation of limited funds in a fashion detrimental to those patients not among the class members covered by the suit. Judicial intervention into functions of the executive and legislative branches of government, including administration and funding of the mental health system, distorts the separation of powers that lies at the core of the US system of government. Many constitutional scholars are profoundly concerned with unelected judges imposing on elected representatives their views of how public monies should be spent.

The right to treatment, however, albeit in a stunted form, has achieved some security in legal doctrine. If elected legislatures do not provide for the basic care and treatment needs of committed patients, unelected judges will continue to force some redistribution of funds to help this group. A decision of the US Supreme Court (Missouri v. Jenkins) suggested that the courts’ powers in this regard may be greater than previously assumed, perhaps extending to the actual imposition of taxes to raise funds needed to remedy constitutional deficiencies.


However, a paradox must be acknowledged as well. Even as the right to treatment, on some basis or other, has become more generally accepted, changes in the mental health system have diminished the impact it might have. As a legal weapon, it has been targeted primarily at state hospitals with long-stay populations. But the number of such facilities continues to diminish, and the patients whom they housed are now often cared for in community residences. When rehospitalized, as many of these patients will be from time to time, they are more likely today to be admitted to private facilities for relatively short stays. This may have been one of the major goals of the original proponents of a right to treatment. Achieving this goal, however, owes more to changes in the organization and financing of mental health care than to the doctrine itself.


B. OTHER RIGHTS OF HOSPITALIZED PATIENTS


1. Right to the Least Restrictive Alternative

The US Court of Appeals for the District of Columbia, the source of many noteworthy decisions in mental health law under the stewardship of Chief Judge David Bazelon, first applied the concept of the least restrictive alternative (LRA; sometimes called least drastic alternative) to the psychiatric patient. In Lake v. Cameron in 1966, Judge Bazelon ruled that an individual could not be committed involuntarily to a psychiatric hospital if an alternative could be found that infringed to a lesser degree on his or her constitutional rights to liberty. The concept was picked up by other courts and appeared in major cases such as Lessard v. Schmidt (1972), an early case addressing mental patients’ procedural rights in civil commitment. Since then, the doctrine has become a commonplace in mental health litigation and a feature of most right-to-treatment decisions, consent decrees, and most state statutes.

a. Least restrictive alternative in theory. LRA began not as a rule designed specifically to answer the needs of psychiatric patients but in a far-removed context. Its first use in an individual rights case, in Shelton v. Tucker (1960), was for the purpose of placing a limitation on the extent of the exercise of state powers, in this case striking down a law requiring Arkansas school-teachers to reveal their membership in all outside organizations. From its birth, it was a doctrine that demanded that the state justify its activity on a linear scale. A lesser degree of state action to accomplish an end was less restrictive than, and therefore preferred to, a greater degree of action: “Even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved” (Shelton v. Tucker). Furthermore, and quite logically in the context, the action of the state was assumed to be the sole cause of the resulting restriction of liberty.

b. Least restrictive alternative in practice. The concept of LRA in mental health care has often been rigidly applied. A hierarchy of alternatives has been established using the model of more governmental action equaling more restrictions, independent of consideration of the individual patient’s needs, and the patient has then been slotted into the least restrictive of those options. Hospitalization is considered ipso facto the most restrictive alternative and is therefore the least favored. Partial hospitalization is given preference over full hospitalization and outpatient treatment even more so. In fact, if all services can be rendered in a social service setting (e.g., a vocational rehabilitation program) without any psychiatric input at all, that is sometimes considered better still. What has stopped this practice from making as much of an impact on mental health care in America as its advocates favor has been the limitations in most states of realistic alternatives of any sort to the inpatient unit. Although the goal of many right-to-treatment class-action suits has been to compel the states to provide such alternatives, funding has been hard to generate and changes have developed slowly.

c. New approaches to implementing the least restrictive alternative. A decision of the US Supreme Court has somewhat reinvigorated the doctrine of LRA. Although the court declined to find a constitutional basis for the LRA in Youngberg v. Romeo in 1982, the court’s 1999 decision in L.C. v. Olmstead pointed to a new basis for patients’ rights to the LRA. Regulations implementing the Americans with Disabilities Act (ADA) require that “[a] public entity shall administer services, programs and activities in the most integrated setting appropriate to the
needs of qualified individuals with disabilities” (emphasis added). Two Georgia state hospital patients challenged, as a violation of the ADA, the extension of their hospitalizations because of the absence of community facilities to which they could be discharged. Once more, advocates were looking for a means to compel state legislatures to turn on the tap of funding for mental health services.

The decision in Olmstead gave them a half victory. Essentially upholding the lower courts’ decisions in the case, the Supreme Court ruled that “unjustified institutional isolation of persons with disabilities is a form of discrimination” that is forbidden by the ADA. However, it also held that states could not be compelled to provide funding for community residences if that would force a “fundamental alteration” in their mental health care systems. The justices continue to be reluctant to allow courts to force legislatures to reshape their spending priorities. After a good deal of litigation in the lower courts based on Olmstead, though, it seems clear that the “fundamental alteration” language will not usually be read to insulate states completely from the need to provide outpatient options. Thus, especially before a sympathetic judge, Olmstead offers another approach to obtaining less restrictive conditions and increased services for institutionalized populations. This approach to LRA is particularly interesting because it does not rely on constitutional doctrine and is applicable to voluntary patients (e.g., the plaintiffs in Olmstead) as well as involuntary patients.


2. Rights in the Hospital

a. Historical perspective. To understand why hospitalized psychiatric patients are often in the position of arguing for the right to do things that other members of society take for granted, one should recall the theory that prompted the founding of the first major state psychiatric hospitals in the second quarter of the nineteenth century. Mental illness at that time was thought to be caused by the pressures and stresses of chaotic urban life, seen as an unstructured mélange of sensation, which impacted with particular force on those with “hereditary defects of the mind.” It was from this tumult and disorder that the first patients sought “asylum” in the new hospitals being built in the peaceful countryside. The asylum, with its rigid routine and invariant schedule, was thought to exert its therapeutic effect by reestablishing a basic, health-promoting order within the individual. For this to be effective, the patient had to not only submit to the daily regimentation but also face isolation from the world he had left behind. At the beginning, therefore, the psychiatric patient in this country surrendered, usually involuntarily, the rights of association, speech, and privacy that others in the community took for granted.

Long after the theory had withered and died, in fact, well into the middle of the twentieth century, most psychiatric inpatients remained bereft of their basic rights. Ideological fervor had given way to complacent torpor: In the understaffed and crowded caverns of the state systems of the late 1800s through the 1950s, it was easier to manage a regimented, tightly controlled mass of patients than to attempt to encourage individualistic exercise of basic rights and liberties.

b. Transitional period. This situation began changing in the late 1960s when, in the light of the victories of the black civil rights movement, activist lawyers turned their attention to other disenfranchised groups, mental patients among them. By means of court decisions (most notably Wyatt v. Stickney), consent decrees, new state statutes, and departmental regulations, the legal status of psychiatric patients has been normalized. At the same time, some limitations on their rights remain, in part because of a different set of considerations. The nature of psychiatric illness and of its treatment, at least as conceptualized today, continues to require some restriction of patient’s rights, for their own protection and that of others. This transitional period has led to a new and fairer balance of rights and protections, one that leans toward granting patients the free exercise of their rights, except in the presence of compelling reasons for withholding them.

c. Specific rights

i. Visitation. Visits from relatives and friends, symbols of the environment outside the asylum walls, were anathema to the advocates of moral treatment who built the early asylums. Since then, the emphasis on maintaining the patient’s ties with the community and on effecting rapid discharge and reintegration with life outside has grown, with most facilities encouraging visits. Therapists, in fact, often attempt to resolve family and personal issues that hinder such relationships.


Occasionally, however, visits can be suspended for “cause”: for a period shortly after admission while the patient is acclimating to the hospital and the initial evaluation is being performed; during periods of extreme psychosis or agitation; and when the previous visits of a given individual have been counterproductive (e.g., ending in a fistfight) or have led to untoward consequences (e.g., a suicide attempt after a meeting with an estranged spouse). In addition, visitors who disrupt the care of other patients on the unit by selling drugs, stealing valuables, or starting fights legitimately can be restricted from visitation. Similarly, visiting hours can be limited to particular times of the day that do not interfere with unit routine or activities.

State laws often specify that certain individuals have a right of free access without limitation. These include lawyers, clergy, and private or consulting physicians. Even then, though, the patient’s clinical needs come first. If a visit is truly contraindicated, as with a wildly excited manic patient, the clinician’s obligation is to protect the patient from the stimulation that the visit would cause. Although the patient’s visitor always has the right to seek a court order mandating his admission, in most cases a careful discussion of the matter leads to mutual agreement on what constitutes the patient’s best interest.

Additional problematic issues are raised by other sorts of visitors. Does a hospital administration have the right to bar members of a “patients’ liberation group” from organizing on an inpatient service? What if they are advocating that all patients refuse to cooperate with their care plans and refuse medications? Does a patient have a right to invite a reporter to visit him on the ward? Should an older man who makes advances on younger women after they are discharged be banned from visiting?

No easy answers exist. In general, and absent a statute to the contrary, the goal of regulation of visits should be to protect patients’ best interests, particularly their health and also their privacy. Regrettably, this may sometimes interfere with First Amendment rights, but the protection of those rights lies in the hands of the courts. The clinician should protect her patients first.

ii. Communication. The right to free and open communication with those outside the facility should be unaffected by hospitalization. Some hospitals, however, continue to monitor and restrict their patients’ communications, whether letters or telephone calls. They justify this practice by citing the need to protect the outside world from potentially harmful contact—whether of a threatening, offensive, or prurient nature—with the patients. Clearly, instances exist in which communications of this sort occur, as well as others in which the patient places himself at risk by ill-considered, provocative, or foolish messages. Yet a blanket prohibition of all communication, or even uniform censorship, seems too broad a net to cast to trap the few errant missives worthy of suppression. Hospitals that have taken the opposite approach, namely, permitting unfiltered communication except when protection of the patient or of others seems indubitably to require curtailment of the privilege, have found little reason to regret the more liberal stance. Moreover, this approach tends to be consistent with contemporary statutes and regulations governing patients’ rights. In addition, many states mandate unlimited free communication with certain classes of individuals, often including lawyers, government officials, and members of the clergy. Even in the absence of such a provision, a maximal effort should be made to foster free and private communication between a patient and his lawyer, if the patient’s clinical state at all permits it.

iii. Privacy. Privacy means many things to many people. Implicit in the treatment of any illness in a hospital (even a general hospital) is the sacrifice of much of what is personal and private about one’s daily life. It is coming to be increasingly accepted, however, that effective treatment is not incompatible with many seemingly small measures that together help to protect the patient’s sense of uniqueness and inviolability. Patients’ bills of rights, many of the right-to-treatment suits, and the more enlightened regulations require steps such as permitting patients to retain personal possessions and providing a secure locker for them, furnishing private toilet and shower facilities, allowing a minimum number of square feet of floor space for each patient, and similar measures.

Privacy also means protecting the confidentiality of patients, including not talking about patient matters within earshot of other patients or nonprofessional staff and restricting access to patients’ records to authorized personnel who have a need for it, both reinforced by the regulations elaborating the requirements of Health Insurance Portability and Accountability Act (HIPAA) (see Chap. 1).


The most famous case concerning privacy in a state psychiatric facility arose in the context of Frederick Wiseman’s filming of Titicut Follies (1967) at the old Bridgewater State Hospital for the Criminally Insane in Massachusetts. Wiseman’s film, a severe indictment of conditions at the hospital, was banned from public display in Massachusetts for almost a quarter century on the grounds that it invaded the privacy of those patients who were portrayed in it. Needless to say, the ban also protected the public officials who were responsible for conditions at Bridgewater from facing the wrath of an informed public. The case illustrates the often-delicate trade-offs between various rights—in this instance, the right to privacy posed against freedom of speech and the right of the public to know—that occur in this complicated area.

iv. Rights to protection from harm. Among the few treatment-related rights that the US Supreme Court has been willing to recognize is the right of committed patients to be free from physical assault. Patients’ bills of rights in many states extend this right to all patients. Implementing the right to freedom from harm requires attention to those patients who may be violent toward others and to appropriate intervention, including medication, space restriction, and seclusion or restraint, when necessary. Insofar as the common law recognizes a similar right as a component of the standard of care for hospitalized patients, not protecting patients appropriately can lead to actions for malpractice.

It is not only other patients who may potentially inflict injury; staff members can be abusive as well. Patients are entitled to be protected from staff abuse by careful screening of employees and appropriate supervision. Complaint mechanisms with adequate means for investigation are also necessary. Particular attention should be given to staff members who work on night and weekend shifts with little supervision. Often, training and support of these staff members, who can feel neglected by the institution, can prevent abuse from occurring.

v. Rights to freedom of movement. Along with the right to be free from harm, the US Supreme Court found a constitutional liberty interest in freedom of movement. As the justices interpreted this right, movement within the hospital cannot be arbitrarily restricted (e.g., use of patient seclusion and restraint for the convenience of the hospital staff), but limitations must relate to legitimate therapeutic needs. Although most states have rules governing the use of seclusion and restraint, these regulations have more recently been preempted by federal regulation (for those facilities receiving federal funds, including Medicare and Medicaid) and by the rules promulgated by The Joint Commission, which accredits health care facilities. In general, the use of seclusion and restraint is limited to emergency interventions aimed at protecting patient or staff safety. Possible therapeutic uses (e.g., limiting stimulation of disorganized patients) generally are no longer considered acceptable. Procedural requirements are described in Sec. II-D. Not observing these requirements can result in civil penalties or licensure revocation for facilities and the possibility of administrative sanctions or lawsuits against clinicians.

vi. Economic rights. As it has become more generally accepted that the disabling effects of mental illness are often quite specific in their impact, frequently leaving large areas of a patient’s functional capacity unimpaired, there has been an increasing tendency to permit psychiatric patients to manage their own financial and often even personal (e.g., marriage, divorce, child custody) affairs. Almost all facilities allow patients to hold and spend small amounts of money, and many jurisdictions require, absent a finding of incompetence, that patients be given the opportunity to handle important financial matters even while hospitalized. No states follow the old practice of equating commitment with incompetence to manage one’s affairs.

On the other hand, instances occur in which the restriction of the right to spend money is in the patient’s best interest and in which not enforcing such a restriction places the clinician at risk of being found negligent. A patient who is not capable of rationally dealing with her assets, even if she is not officially declared incompetent by the court (e.g., a manic patient who, if permitted, would spend her family’s savings on frivolities) might later have a legitimate cause of action against any caretaker who permitted such profligacy to occur. Ideally, a determination should be made soon after admission as to the patient’s ability to manage his or her financial affairs. Guardians, conservators, or representative payees, as appropriate, should be sought to act on the patient’s behalf (see Chap. 5). Nevertheless, in those circumstances (and they are frequent) in which such individuals are unavailable, or in which the incapacity is likely to be of sufficiently
short duration that such appointment of proxies would not be useful, the inpatient clinician must continue to intervene to protect the patient’s needs. Although abuse of this discretion is always possible, the patient’s ultimate right of appeal to the courts, combined with a healthy bias in favor of the patient managing her affairs whenever possible, should minimize this problem.

vii. Right to be paid for work. A good example of the difficulties that arise in mixing a rights model with a therapeutic model is the muddled state of the law concerning patients who perform work in longer-stay state hospitals. Work was a cornerstone of nineteenth-century moral treatment. State hospitals were deliberately located in the countryside, with ample farmland surrounding them, to give patients an opportunity to perform therapeutic labor. Over time, however, the therapeutic nature of the labor became obscured by the need of the underfunded hospital to use patient labor to stay within its budget. Patients were often required to work for reasons that had little to do with treatment.

In reaction to this abuse, some courts ruled that this uncompensated labor violates the Thirteenth Amendment’s ban against involuntary servitude. Other courts have applied the Fair Labor Standards Act to require that work be compensated at minimum wage levels and that overtime provisions be applied. The only exceptions allowed are for patients who are rated as proportionately less productive than nonhandicapped workers. The result of these two lines of decisions has been to require that work assignments be “voluntary,” that patients usually be paid for their work at market rates, or, in some cases, that unpaid work be limited to “therapeutic” labor (i.e., tasks not required for the maintenance of the hospital). Difficult as it is to distinguish between therapy and slavery when it comes to washing floors or folding linen, it is even more difficult to persuade tight-fisted state legislators to appropriate funds to pay patients who usually are receiving free treatment in a state facility.

Thus, the result of seeking a legal remedy for an admitted and shameful abuse is the threat of depriving all patients of the benefits of a chance to work. The benefits of work include a boost to self-esteem, the ego-integrative effects of applying oneself to a task, the improvement of attention span, a relief from the monotony of life in many hospitals, preparation for postdischarge employment, and the real improvements in the milieu that can be made by patient labor.

On therapeutic grounds alone, one would favor paying patients for the work they do. But until the legislatures agree, there appears to be no good solution to the problem. Work programs have ground to a halt.

viii. Patients’ rights officer. The debate over the right to be paid for labor demonstrates how the appealing notion of patients’ rights may lead to problems in practice; doing away with all rights and returning to the snake pit days when our hospitals were “the shame of the states” is hardly the solution. Rather, a method should be found for settling disputes over patients’ rights short of recourse to the courts. A potentially effective means for maximizing patients’ rights and minimizing disruption of the hospital’s therapeutic functions is the appointment of a patients’ rights officer (PRO).

Mandated by statute or regulation in some areas, the office of PRO provides an ombudsperson for patients when concerns about their rights arise. The position should be filled by someone who is familiar with patients’ needs and with ways of getting things done in the hospital bureaucracy but who is outside the direct line of responsibility for patient care. The PRO should be available to patients to answer their questions about the extent of their rights and to help find a solution for problems that arise. The PRO is not responsible for resolving disputes but for bringing problems to the attention of the appropriate officials and for aiding patients in presenting their complaints. Although the PRO is often able to settle issues raised by patients by exploration or mediation, there are times when the most appropriate step is to refer patients to outside legal assistance. To avoid conflicts of interest, the PRO should not serve in a similar advisory role to staff members; they should be able to obtain assistance with legal issues from their own consultant.

ix. Protection and advocacy services. Despite growing attention by psychiatric facilities to patients’ rights, and the proliferation of internal means (e.g., PROs) to protect patients, a belief exists among mental health advocates that widespread abuses still occur. This belief led Congress to require and states to establish protection and advocacy services (known as P&As) for patients with mental illness. P&As, usually staffed by attorneys and paralegals, operate independently of
the mental health system. Although models differ from state to state, P&As usually station representatives at major psychiatric facilities, where they inform patients of their rights and solicit complaints. Efforts may be made to resolve complaints through negotiation with the facility, often through the PRO. If no resolution is made, P&As have the capacity to file suit against individuals, private facilities, and the state. Congress has appropriated some funding for P&As in each state, with additional money coming from state budgets. P&As can be awarded attorneys’ fees by the courts at the conclusion of many types of successful litigation.

The P&A model was introduced into the mental health system from the intellectual disability system, where it has functioned even longer. Its efficacy is disputed. Advocates point to the need for some external check on the authority of administrators and clinicians in facilities where they would otherwise have unchallenged power to control every aspect of patients’ lives. Opponents argue that in a situation of limited funding, a chronic characteristic of the mental health system, P&As distort the allocation process by forcing resources to be devoted disproportionately to the problems they target for attention. Some clinicians believe that P&As were created as a substitute for adequate funding of mental health programs. Little question also exists that hospital staff, already operating under considerable stress, views the presence of P&A attorneys, and the implicit threat of a lawsuit that they carry in their negotiating arsenal, as an additional unpleasant aspect of their job. Nonetheless, at this point P&As appear to be a permanent addition to the mental health landscape (see Chap. 7, Secs. II-A-4 and II-B-1-d-ii for further discussion of the relationship between clinicians and P&As).


C. RIGHT TO REFUSE TREATMENT

As part of the more general movement to afford patients with mental disorders the rights enjoyed by other members of society, a good deal of attention has been given to their right to refuse psychiatric treatment. This right has been recognized in various forms in a large number of court decisions, and some right of refusal is granted by many state statutes or regulations.


1. History of the Right to Refuse Treatment

In principle, voluntary inpatients have always had the right to refuse treatment they did not desire, if in no other way than by leaving the facility. The situation for involuntary patients, however, was rather different. Because commitment was based on their need for treatment (see Chap. 2, Sec. II-D-1), it was presumed that the procedures required to detain them were also sufficient to allow them to be treated against their will. In this context, the right to refuse treatment was not even imagined.

When commitment statutes changed to emphasize dangerousness criteria, however, the question was raised as to where the state derived its power to treat over patients’ objections. If preventing dangerous behavior was the goal, and that could be accomplished by detaining the patient under supervision, it was argued that the state had no compelling interest in overriding the refusals of unwilling patients. Furthermore, it was maintained, patients had substantial interests in having their refusals honored. These interests derived from common law rights to control what was done to their bodies and constitutional rights to privacy, liberty, equal protection, and due process.

Early cases, in the 1960s and 1970s, focused on patients’ right to refuse treatments that were thought to be exceptionally intrusive (e.g., aversive therapy with drugs that induce nausea or paralyze respirations, psychosurgery, or electroconvulsive therapy [ECT]). Beginning in the late 1970s, more than a score of courts extended this analysis, granting some version of a right to refuse treatment with antipsychotic medications. These decisions were often premised on a distorted view of the risk-to-benefit balance of these drugs, but the legal rationale derived from the idea that mental patients do not lose the right to decide what should befall them merely because of involuntary commitment.


2. Current Approaches

Although the right to refuse treatment with antipsychotic medication is often thought to be a unitary concept, courts and legislatures have defined the right differently across jurisdictions. Two broad approaches (treatment-driven models and rights-driven models) have been followed, with several variations of each.


a. Treatment-driven models. Jurisdictions adopting this approach have tended to recognize patients’ interests in limiting inappropriate medication but not in refusing indicated treatment. Thus, when patients object to treatment, the objection must be reviewed by either the treating physician (a minimalist approach) or an independent consultant or panel. If the recommended treatment is found to be appropriate, it is permitted to proceed. One might characterize this model as endorsing a right to object to treatment but not a right to refuse it.

Federal courts have tended to favor this approach. The US Supreme Court has not decided the contours of a federal constitutional right to refuse treatment in civil facilities but has given some hints of its views. Unfortunately, those hints are not all consistent. In the 1980s, the court remanded one of the cases that reached it on this issue (Rennie v. Klein), indicating to the lower court that it should reconsider its decision in light of Youngberg v. Romeo (see Sec. II-A-3). Youngberg had noted that patients’ rights could be limited in the interests of treatment as long as a professional judgment was made by qualified personnel in this regard. This action of the Supreme Court seemed to suggest that it favored a similar approach here. Many federal courts (and a few state courts) have operated under that assumption, endorsing treatment-driven models.

Subsequently, the US Supreme Court took a similar approach in a case involving the right of prisoners to refuse treatment (Washington v. Harper). It held that, although prisoners had a constitutionally protected interest in being free of unwanted treatment, Washington State’s procedures for reviewing prisoners’ objections to treatment, which included review by a three-person clinical and administrative panel, with rights to present evidence, to have lay representation, to appeal, and to regular review, were sufficient to vindicate prisoners’ rights. Substantively, if a prisoner met the state’s commitment criteria, and treatment was in his or her interests, the medication could be administered. It is unclear to what extent the Supreme Court was carving out a special exception for prisons, to whose needs it has always been deferential, or whether it would endorse an approach of this sort in a civil setting, as suggested by some of the analysis in the opinion.

Further hints of where the Supreme Court might stand if a civil right to refuse treatment case ever reached its docket came in 2003, when the justices decided Sell v. US. The case raised the question of whether a defendant who was incompetent to stand trial could be treated against his will to restore trial competence. Justice Breyer, writing for the majority, reiterated Washington v. Harper’s holding that there is a constitutionally meaningful interest in avoiding unwanted treatment but suggested that sufficiently potent state interests could override a person’s refusal. However, whether civil commitment per se creates enough of an interest for the state—the ultimate question in the debate over the right to refuse treatment—remains unanswered.

For advocates of a right to refuse treatment, however, the treatment-driven model misses the point. Although it may improve the quality of care, it does nothing to ensure that patients have the right to determine whether they will receive medication in the first place. They argue for an entirely different, rights-driven approach.

b. Rights-driven models. The rights-driven model views a patient’s rights to determine whether he or she is treated as the primary concern. Those rights may be based on the federal constitution, despite the US Supreme Court’s Youngberg decision, but increasingly they are not. State courts, which have taken the lead in adopting rights-driven models, often base their decisions on common law rights to control what happens to one’s body, state statutory law, or state constitutions. This renders their decisions nonreviewable by federal courts, allowing them to extend patients’ right to refuse treatment well beyond what the US Supreme Court is willing to recognize as required by the federal constitution.

The key to the rights-driven approach is to minimize the differences between the rights of involuntarily committed patients and other persons. Because noncommitted persons cannot be treated against their will unless they have been found to be incompetent to make decisions for themselves, rights-driven models incorporate a similar determination for committed patients. Some variation is evident, however, in the identity of the decision-maker and the degree of procedural protections afforded.

The simplest of the rights-driven models calls for an independent evaluator or panel to assess the refusing patient’s competence, along with the need for treatment. If found to be incompetent, and if the suggested treatment is deemed appropriate, the patient can be treated over his objections. Although this model has the virtue of avoiding lengthy court proceedings, that is precisely
the aspect that concerns many patients’ rights advocates. Those who argue against this approach contend that it continues to grant a lower level of protection to committed mentally ill persons than that afforded to others, who would have their incompetence determined by a judge. On the other hand, clinicians are concerned that this model allows some committed patients to refuse treatment, putting clinicians in the position of being responsible for the care of patients whom they cannot treat effectively.

A proposal that would respond to these problems would limit involuntary commitment to patients who are found by a judge to be incompetent to make decisions about treatment (see Chap. 2, Sec. II-F-1-a). This would grant patients the right to a judicial determination of incompetence, while eliminating the possibility that committed patients could refuse appropriate medication. A small number of states have adopted this model for some or all committed patients; after commitment, physicians are allowed to prescribe for patients those medications they believe are needed. Decision-making power might, of course, be conferred on other parties (e.g., family members, a guardian, or even a judge).

The most popular of the rights-driven models, though, does not restrict the scope of civil commitment in this way. If a committed patient refuses treatment, she is subject to a court hearing on her competence. If found competent, her refusal stands. If found incompetent, the court makes a decision as to whether treatment should be permitted. Some courts ground this determination in their view of whether treatment is in the patient’s best interests. Other courts rely on their perception of what the patient would have wanted if she were competent to make a decision, the so-called substituted judgment approach (see Chap. 5, Sec. II-D).


3. Statutory and Regulatory Approaches

As in so many other areas of patients’ rights, it has been the courts that have taken the lead in fashioning the right to refuse treatment with medication. But almost all of the states have responded with statutes or regulations that echo one of the models described in the previous sections. Generally, states attempt to adhere to treatment-driven models unless compelled by the courts to adopt a rights-driven approach. They have been fairly creative in establishing procedures for review of refusals, including interdisciplinary panels and multilayered review, beginning in the facility and then moving to regional or state administrative levels. Challenges to some of these procedures, however, have led to a number of court decisions imposing a judicial, rights-driven model.


4. Emergencies

Court decisions have acknowledged the traditional prerogative of clinicians to take whatever steps are necessary to deal with emergencies, including the use of seclusion, restraint, and involuntary medication. The term emergency, however, has tended to be rather narrowly interpreted. Some courts, for example, reject a clinical definition of emergency that encompasses certain criteria, such as severe pain on the part of the patient and the likelihood of rapid deterioration, in favor of a narrower, more legalistic definition limited to the occurrence or threat of significant bodily injury to the patient or others, or the likelihood of irreversible deterioration. Within the narrower scope, medication is permitted but only to the extent necessary to control the emergent situation. That is, if a single injection of a neuroleptic is sufficient to sedate or to diminish the frightening hallucinations of an assaultive patient, further treatment is not permitted, even though the patient remains psychotic and the long-term risk of recurrence is present. This is consistent with a nonclinical view of the use of medication as a means of controlling behavior rather than as a treatment for illness; this view is analogous to defining dangerousness rather than need for treatment as the sole criterion for involuntary commitment.

Even with these tight criteria, the point at which an emergency begins and involuntary treatment may be initiated is often an uncertain one and requires a large amount of clinical discretion. For example, a patient who is refusing food and fluids will, at some point, become an emergency case; careful electrolyte or blood pressure monitoring may be necessary to satisfy a court that this point has been reached. The medical conservatism that may result from such legalistic criteria may place the patient at significant risk. On the other hand, a repetitively assaultive patient with a regular pattern of building up to an assault (such as cursing loudly at hallucinatory images) need not be allowed to strike someone, even under the strictest definitions of emergency, before medication may be administered. Many facilities will undoubtedly continue to use more clinically
oriented definitions of emergency. In the absence of statutes or court rulings to the contrary, this is acceptable. Clinicians acting in good faith and in their patients’ best interests are unlikely to be held personally liable in such a situation.


5. Liability Resulting from Noncompliance With Rules on Patients’ Right to Refuse Treatment

Three general categories exist in which liability could accrue for nonconsensual treatment in violation of legal rules in a given jurisdiction: battery, malpractice, and civil rights violations.

a. Battery. A criminal charge of battery (performing an unconsented touching) along with the related charge of assault (inducing the apprehension that a battery will be committed) are possible consequences of involuntary medication practices. Along with the criminal charge, a civil suit for damages resulting from the alleged battery can also be filed. Courts, however, are usually reluctant to introduce criminal issues into the hospital setting, where unconsented touchings are a routine part of daily work with the severely ill. The availability of other remedies, considered below, contributes to this reluctance, as does the general trend of considering issues of consent as an element of malpractice, rather than as battery. Nonetheless, such a criminal or civil action remains a possibility, particularly when circumstances suggest that medications were administered for purposes other than treatment.

b. Malpractice. The usual benchmark for judging malpractice liability is a failure to conform to the standard of practice of the profession (see Chap. 4, Sec. II-A-1-b). Thus, as nonconsensual treatment becomes less common, the practitioner who administers medication against his patient’s desires places himself at increasing risk. This assumes, of course, that such action is not sanctioned by state statute or regulation. The doctrine of informed consent (see Chap. 4, Sec. II-B) has been sufficiently elaborated in nonpsychiatric medical cases to provide ample precedent for suits against mental health clinicians claiming a failure to obtain informed consent. An additional caveat is warranted: The usual standard of liability, the extent of deviation from accepted practice, can be rejected by the court if it believes that the standard of the profession itself is improper. It was through just such means that malpractice suits over informed consent became prevalent in a medical community that had generally paid little heed to such formalities. Precedents in other jurisdictions are important barometers for judging how acceptable even a widely followed standard of care is likely to be to a court. Some decisions certainly point in the direction of decreasing acceptability of involuntary medication. The old practice of obtaining the consent of next-of-kin in place of the patient’s consent is similarly falling into disfavor in psychiatric settings. Rather, except in emergencies, the substituted consent of a statutorily or judicially authorized decision-maker is preferred.

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Oct 13, 2019 | Posted by in PSYCHIATRY | Comments Off on Legal Issues in Inpatient Psychiatry
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