Legal Issues in Inpatient Psychiatry



Legal Issues in Inpatient Psychiatry


Gabor Vari

Mace Beckson

Robert Weinstock



The legal aspects of inpatient care often are not fully understood by or seem daunting to psychiatrists. The goal of this chapter is to provide an overview of legal issues involved in inpatient psychiatric care. Topics include hospital admission, informed consent, confidentiality, subpoenas, special considerations with suicidal and homicidal patients, legal issues involving involuntary administration of medication, and seclusion and restraint. Some of the details in this chapter are specific to the law in the state of California. The principles discussed, however, apply across states; most states have laws that address these issues. Practitioners should be aware of local laws because many of the legal principles discussed in this chapter vary state by state.


Admission

In the past, mentally ill patients had few rights. Patients were committed to mental hospitals by psychiatrists on the advice of families. Even when legal rights were recognized in theory, the problems patients had in legal representation in the absence of public defenders to handle such cases often made the theories hollow. Psychiatrists generally are most concerned with patient welfare or doing what is in the best interests of the patient. However, in recent decades the law has been less concerned with patient welfare and more concerned with balancing the patient’s autonomy (civil liberties) with public safety. To the dismay of psychiatrists and families, patient welfare receded into the background in terms of justifying involuntary hospitalization.1

Two current theoretic concepts provide the state with justification for involuntary admission: police power and parens patriae. The principle of police power dictates that an individual’s freedom may be restricted when he is deemed to be an acute danger to himself or others. Parens patriae (doing what is best for a patient much like a parent might do) is in conflict with the patient’s right to autonomy. Parens patriae comes into play though only when the patient lacks competence to make his or her own decisions. In the past when psychiatrists had more authority to do whatever they thought best, they often ignored patients’ autonomy and ordinary right to make their own decisions even if not the best ones. Concern for public safety and reluctance to take risks led psychiatrists to hospitalize patients for lengthy periods. Because of this, courts and legislation have had to balance these conflicting considerations. Many psychiatrists believe that the pendulum has swung too far in the direction of patients’ rights as opposed to patient welfare. In many circumstances, a cumbersome legal bureaucracy more often interferes with treatment than provides meaningful patient protection. It can be unnecessarily wasteful of psychiatric and judicial time.1 Often there are lengthy legal proceedings over a few extra days’ hospitalization.



In this case, Mr. A’s involuntary admission was based on the psychiatrist’s diagnosis of an active mental illness (in this case, a psychotic disorder) as well as danger to others. The patient’s threatening behavior in the field was used as evidence. By using “danger to others” to justify Mr. A’s admission and subsequent hold and evaluation period, the psychiatrist invoked the principle of police power. In this case police were actually involved, but the principle of police power may be invoked in the absence of involvement of law enforcement. Mental health professionals who are certified by the state to hospitalize patients involuntarily have the explicit legal power to deem a patient a danger to self or others and therefore place the patient on an involuntary hold using the concept of police power in some jurisdictions. In others after a short period of detainment the psychiatrist must apply to the court for civil commitment.


In this case, Mr. B was clearly not deemed to be a threat to himself or others and therefore police power could not be used to justify involuntary admission. The legal principle behind this admission
is parens patriae. The principle of parens patriae (literally “father of the country”), like that of police power can outweigh a patient’s right to freedom. In contrast to police power, this principle emphasizes the paternalistic duty of the state; that is, the state at times can deem that a patient is not able to provide for his or her own basic needs due to a mental illness and, by means of detention, can provide for the individual. In this situation, the patient is deemed to be negligent toward himself or herself rather than an active threat.

When a patient is deemed to be a danger to himself or herself, a danger to others, or unable to provide for himself or herself because of a mental illness, then the patient meets criteria for involuntary admission to a psychiatric unit. Because the US Supreme Court determined that “clear and convincing” is the minimum standard for civil commitment the burden of proof in some jurisdictions can be as high as “beyond a reasonable doubt,”2 but it must now be at least “clear and convincing.”3,4 The patient ordinarily should first be offered a voluntary hospitalization. In some states such as California there is a system other than civil commitment in which the patient is not held as a result of a judicial order. Instead the patient is hospitalized by means of a hold instituted by a mental health professional, and the patient files a writ of habeas corpus to the court to be released. It is unclear what standard of proof applies under this framework, but it often is treated as if the standard is one of a preponderance of the evidence. It therefore is very important to know the specific jurisdiction and its laws.

In some states such as California, courts do not care whether a patient has the capacity to consent to even psychotropic medication so long as the patient consents. Expediency trumps common sense here because incompetent consents in reality are meaningless. However, there is legal precedent for finding against the hospital. In Florida, a patient was voluntarily admitted after consenting to hospitalization while actively psychotic, thinking he was signing into heaven, and lacking the decision-making capacity to agree to this hospitalization.5 This Florida case decided by the US Supreme Court was based on a Florida statute requiring that a patient being voluntarily admitted be competent to consent to hospitalization and treatment. The Court found that the hospital had deprived the patient of the due process that an involuntary hospitalization legal proceeding would provide. In most states a judge would be petitioned early in the process to continue to hold, evaluate, and treat the patient. If the judge gives such an order for continuing assessment and treatment, then the process is known as civil commitment. In other states like California, physicians place the patient on a continuing hold after the initial assessment and treatment, and the patient has a right to go to court for a writ of habeas corpus to be released. In some states a guardian ad litem is appointed to make decisions on the patient’s behalf.

On inpatient medical and surgical wards, a patient may be deemed to lack decision-making capacity with regard to consenting to medical treatment. Procedures are more informal in some states, such as California, with courts encouraging doctors and family to work out what is best. Courts may need to be involved only in cases of conflict. A surrogate decision maker should be identified. Ordinarily, this is the closest relative or the person who is designated previously by the patient in an advance directive. Ideally, the surrogate decision maker should be familiar with the patient’s general wishes and be able to exercise substituted judgment on the patient’s behalf (what the patient would have decided if competent). If that is not known, then doing what is thought to be in the patient’s best interest is the next best standard. If no such surrogate can be found then physicians may petition the court to act as the patient’s temporary surrogate or, in circumstances when this is not immediately practical, may form a consensus amongst a team of physicians to act temporarily on behalf of the patient until a surrogate decision maker can be assigned. In an emergency, it generally is advisable if at all possible to have two physicians agree with the planned emergency medical treatment.

If a patient is admitted voluntarily to a psychiatric ward for treatment, this technically means that the patient may leave the psychiatric ward at any time unless the patient meets the criteria for involuntary hospitalization and can be detained. Should the patient request immediate discharge while admitted on a voluntary basis, a psychiatrist should evaluate the patient within a reasonable amount of time. That time is defined in some jurisdictions by statute. If the evaluation reveals that the patient meets criteria for involuntary hospitalization, then the patient may be placed on a hold at this time or a petition filed for civil commitment. However, if the patient no longer meets
criteria for hospitalization, then the patient cannot be kept against his or her will on the psychiatric unit. Some jurisdictions think such “involuntary” voluntary hospitalizations deprive patients of their rights to a judicial review and prefer patients who would not be allowed to leave be hospitalized involuntarily even if they are willing to be hospitalized. Because jurisdictions differ in the details about these procedures, the clinician must be familiar with the details of the local laws. Some policies may even differ between counties in the same state about procedures not specifically addressed in state law.


Treatment against the Patient’s Will

In some states, including California, Massachusetts, Illinois, and New York, detaining a patient involuntarily for assessment and treatment does not automatically authorize involuntary treatment with psychotropic medication. This can often cause a dilemma for psychiatrists, nurses, and the ward milieu because many patients are hospitalized precisely because their behavior is felt to be grossly dangerous or out of control. Therefore, in these jurisdictions, a patient hospitalized because the need for treatment of mental illness was felt to trump the right to freedom under current civil law nonetheless cannot receive involuntary psychotropic medication absent an emergency.6 In such states, in cases of medication refusal, a separate legal proceeding determines whether the patient lacks the capacity to refuse psychotropic medication.

In states with this requirement, involuntary treatment is allowed temporarily when there is clear evidence that a patient poses imminent danger to himself or herself or to others and there is an acute emergency. Frequent examples include agitated psychotic or manic patients and self-harm behaviors or suicide attempts in patients hospitalized for depression, mania, psychosis, or personality disorders. Involuntary psychotropic medication can be administered in the absence of an acute danger after the required legal proceeding. In many other states involuntary hospitalization automatically authorizes all psychiatric treatment against the patient’s wishes, even psychotropic medication. Some states, though, have separate procedures for electroconvulsive therapy (ECT).

Often, problems with patient refusal of medication can be avoided by strictly following the principle of informed consent. This topic will be discussed in more detail later; briefly, informed consent for medication refers to full disclosure of a medication’s risks, benefits, side effects, and alternatives. The informed consent process is a dialogue in which the psychiatrist discusses medication choice with the patient. Especially when patients are held in the hospital against their will, it is important to convey an air of cooperation. If the psychiatrist focuses on strengthening the therapeutic alliance and engages the patient fully in the informed consent process, the likelihood of medication adherence is higher. If the patient experiences side effects or otherwise does not tolerate or wish to continue with the medication, the patient is more likely to try other medications or engage in dialogue if there is a strong therapeutic alliance. Voluntary acceptance of medication usually is best regardless of the legal ability to administer it involuntarily. It also obviates the need for additional legal proceedings, which may be necessary when patients refuse. It also is more likely to result in patient compliance after discharge.

When a patient refuses treatment it is important to understand why the patient is refusing. Often, a severely ill patient refuses medication for a legitimate reason, such as a bothersome side effect. Assuming that patients are refusing medication because of psychosis or lack of insight is a common error in inpatient practice. It is important to attempt a dialogue with the patient so as to understand the reasons for refusal. The patient may have legitimate concerns about side effects of a specific medicine, such as weight gain. Often the concern can be accommodated by using a medicine low in the specific side effect that bothers the patient.

If the patient is unable or unwilling to participate in the initial informed consent process or later in the treatment course decides to stop complying, the psychiatrist must carefully evaluate the clinical picture in order to decide how to proceed. In such circumstances, informed consent must be obtained at a later time if the patient regains the capacity to give informed consent. Psychiatrists may forget to do this.




The above-discussed vignettes present some common therapeutic dilemmas faced by inpatient psychiatrists. In both vignettes, the patients are refusing medication and wish to leave the hospital. For Ms. C, discharge and more comprehensive outpatient treatment planning may best suit the patient’s interests. It is unlikely that a petition to the court for involuntary medication will be successful as the patient demonstrated decision-making capacity. Additionally, even if the court did grant the petition, the patient would be unlikely to remain compliant once an outpatient. Moreover, the patient appears no longer to meet the criteria for involuntary hospitalization.

With Mr. B, the psychiatrists are confronted with a patient who is manic and psychotic and is now refusing medication. He does not demonstrate decision-making capacity and continues to remain gravely disabled. The patient should continue to be offered routine medication. If he continues to
refuse treatment, this should be documented along with his concomitant mental status. In this scenario, the treating psychiatrist in states that require this would likely petition the court in order to treat the patient with psychotropic medication against his will. If the court grants the petition then the patient may receive intramuscular injections against his will if he first refuses the offering of oral medication. Frequently, patients will take oral medicines they have previously refused once the court has found that they may be given injections against their will.


Guardianship or Conservatorship

A common clinical experience in inpatient psychiatry is the phenomenon of repeated admissions for a chronically seriously mentally ill patient, a phenomenon discussed in detail in Chapter 13. These admissions are frequently in the setting of severely limited psychosocial supports (e.g., homelessness and few friends or family) and poor medication compliance. This experience is frequently a frustrating one for health care providers. It is also typically financially burdensome for hospitals and, if many of these types of patients live in a given catchment area, can significantly tax mental health resources which are already stretched very thin in some areas.


In order to deal with chronically relapsing seriously mentally ill patients, states either have long-term civil commitments or have implemented systems such as a limited guardianship, guardian ad litem, a committee, or a mental health conservatorship. A guardian or conservator has fiduciary responsibility for the patient to make decisions regarding the patient’s placement, finances, and, if approved by the court, medical decisions and psychiatric treatment decisions including psychiatric hospitalization. The patient need not consent to treatment; frequently conservatorship terms require that the conservator consent to the specific treatment on behalf of the patient. The spirit of conservatorship is to place the patient in “the least restrictive environment.” Typically, however, individuals who have such a clearly demonstrable level of persistent grave disability require fairly restrictive living and treatment accommodations. Although in the past, mentally ill patients were considered incompetent for all purposes the presumption generally now is that they are competent for most civil purposes unless specifically adjudicated to be incompetent for a specific purpose.

Court hearings can be part of the process for conservatorships, writs of habeas corpus, guardianships, and conservatorships. Hearings in the psychiatric ward as well as hearings in a courthouse proper can seriously disturb the doctor-patient relationship. Inpatient psychiatrists and inpatient staff should be familiar with not only the logistics of conservatorship procedures but also the collateral psychological toll it can take on patients and, secondarily, the ward milieu.


Dementing illnesses in the elderly are not considered serious mental illnesses in some jurisdictions in the same vein as schizophrenia and bipolar disorder. For individuals who are gravely disabled or unable to care for themselves by virtue of a dementia, inpatient psychiatrists in some states must pursue probate conservatorship of the person and/or estate. In some states, including California, this form of conservatorship helps with discharge planning as severely demented patients can be placed in more appropriate locked units and can also provide the patient’s family (if applicable) with the ability to manage the patient’s estate. This is especially relevant if psychiatric treatment is not in question because in California probate conservators cannot place the patient in a mental hospital, but they can place patients in other facilities including locked ones. Some states use terms such as limited guardianships or committees.


Suicide Risk Management

Suicide is the number one cause of malpractice lawsuits against psychiatrists. Of the approximately 30,000 suicides annually in the United States, some 5% to 6% occur in the hospital.7 There are examples of hospitals being found liable when patients complete suicide on psychiatric wards,8 patients suffer harm after eloping from the ward,9 and patients commit suicide after alleged negligent release.10 Inpatient suicides usually occur within the first week of admission.11 In addition, suicide is more common during shift changes and in the days and weeks following discharge.12 Liability is based on the suicide being foreseeable. When a suicidal patient has been hospitalized, whether on a voluntary or involuntary basis, the hospital and staff have been put on notice and have a duty, greater than with outpatients, to take reasonable steps to protect such an inpatient from self-harm. The performance of the attending clinician, inpatient staff, and hospital may be at issue; most common are the failure to assess risk properly or, having assessed the risk, failure to take proper protective action, such as failure to implement the appropriate level of supervision and monitoring based on the risk assessment.13 In addition, liability may be incurred through failure to plan and implement appropriate treatment interventions, premature discharge, and failure to arrange for appropriate outpatient treatment, including level of care (e.g., partial hospitalization, intensive outpatient treatment, or traditional outpatient treatment).

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Aug 27, 2016 | Posted by in PSYCHIATRY | Comments Off on Legal Issues in Inpatient Psychiatry

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