Policy Issues Relating to the Treatment of People with Psychiatric Disabilities in Emergency Department Settings
Susan Stefan
If any group of stakeholders were to design a system [of emergency services for people in psychiatric crisis] a priori, the most common service currently available could not emerge from the deliberative process.
American Psychiatric Association Task Force on Psychiatric Emergency Services (2002)
The quotation that opens this chapter is a striking statement, and it is true. Hospital emergency departments (EDs) currently provide the bulk of emergency psychiatric care, serve as gatekeepers for inpatient mental health beds, and have had thrust upon them a virtual monopoly in determining whether an individual will be detained involuntarily and subject to commitment proceedings. Sometimes these tasks are performed by specialized or dedicated psychiatric emergency services (PESs), but for the most part, only larger urban areas with sufficient volume to make such a focus feasible have psychiatric emergency services. Thus, although there are about 4,600 emergency departments in the United States, only about 1,607 provide psychiatric care, described as “services and facilities available on a 24-hour basis to provide immediate unscheduled outpatient care, diagnosis, evaluation, crisis intervention and assistance to persons suffering acute emotional or mental distress ” (1). However, many of those services are provided by doctors and nurses with little specialized training in mental health assessment and treatment. Only 150 psychiatric emergency services in the country are staffed 24 hours a day with psychiatrists, psychiatric nurses, and other mental health professionals (2).
Thus, it is fair to say that the vast majority of decisions to involuntarily detain an individual with a psychiatric disability in an emergency department are not made by mental health professionals. Emergency department staff who make decisions about triage, assessment, treatment, and disposition of people with psychiatric disabilities often have relatively little formal mental health training or treatment experience. In addition, there is little time to spare from the pressures and demands of a busy ED to sit with patients and have the conversations necessary to evaluate more complex cases, let alone secure confirming information from available collateral sources. Yet the decisions made by ED staff about the assessment, treatment, and disposition of people in psychiatric crisis have a profound impact on the lives of those individuals, on the use of scarce emergency department resources and beds, and on the use of ever-diminishing mental health resources, including inpatient beds.
The resulting situation is an unpardonable waste of limited health care dollars. Emergency departments are by far the most expensive venue for the delivery of care for psychiatric crises, with Blue Cross/Blue Shield reporting that the average cost of an emergency department visit is $1,049 (3). Far less expensive alternatives are available, and many more would be available if current reimbursement policies were altered to encompass them. Beyond the misuse of scarce health care dollars and resources, the ED setting is rarely optimal for individuals in psychiatric crisis: Their needs for time, support, and a calm environment are difficult
to meet in most urban EDs, and the specialized care and experience to respond to some of the more complex psychiatric issues may be lacking in rural areas. Finally, people in psychiatric crisis often need an array of social services and supports that hospital ED staff are ill-equipped to access, and formal, organized coordination with agencies that provide those services is rare.
to meet in most urban EDs, and the specialized care and experience to respond to some of the more complex psychiatric issues may be lacking in rural areas. Finally, people in psychiatric crisis often need an array of social services and supports that hospital ED staff are ill-equipped to access, and formal, organized coordination with agencies that provide those services is rare.
It is common for hospital emergency staff to struggle under unsustainable workloads while vulnerable, fragile psychiatric patients wait, sometimes for days, in claustrophobically small emergency department rooms or on gurneys in the hall, often in thin hospital johnnies. Psychiatric patients, unlike medical patients, are frequently forbidden to leave the hospital prior to assessment if it has been concluded at triage that they may pose a risk, even if they feel better or get tired of waiting. Those who try to leave prior to assessment may be escorted back, and sometimes restrained, by hospital security guards. The use of restraints on psychiatric patients in emergency departments, and requirements of clothing removal that are sometimes enforced by forcible stripping, can make the ED experience extremely aversive and traumatizing to people already in psychiatric crisis.
The insights in this chapter are the results of 4 years of interviews, site visits, and meetings with emergency department physicians, nurse managers, nurses, social workers, psychologists, and psychi-atrists that I performed as director of the Center for Public Representation’s National Emergency Department Project.* The center assembled a national advisory panel that included representatives of urban, rural, and small city emergency departments; managed care; state mental health program directors; the research community; and people who identified themselves as consumers of mental health services (two of whom had gone on to create innovative crisis alternatives to traditional emergency departments). In addition, I read more than one thousand accounts by people with psychiatric disabilities of their experiences with emergency departments across the country and scoured the medical, social science, and even anthropological research literature on emergency departments.
*The Center for Public Representation is a national litigation and advocacy organization for people with mental disabilities, including psychiatric disabilities, developmental disabilities, and brain injuries. The National Emergency Department Project was funded with grants from the Ittelson and van Ameringen Foundations.
One of the major findings of this national project is that hospital emergency departments and people with psychiatric disabilities are joint victims of a system that is both shaped and driven by legal requirements and the incentive structures they create. The current dysfunctional situation is produced by the intersection of social control, embodied by state civil commitment laws; mandatory access, required by federal Emergency Medical Treatment and Active Labor Act (EMTALA) regulations; lack of alternatives, the result of federal and state reimbursement requirements and limitations; and the exaggerated perceptions of looming liability under state tort laws.
Thus, the power of the emergency department to detain, its powerlessness to impose restrictions on access to its services, pervasive staff concerns about tort liability for discharging an individual with a psychiatric disability, and the absence of viable crisis step-downs or alternatives interact to produce inevitable and unsustainable growth in presentations to EDs of individuals in psychiatric crisis, as well as an overstated need for inpatient beds to provide disposition for patients whom ED staff are reluctant to discharge. This mix is made even more complex by other regulatory and legal requirements, including Medicaid and Social Security eligibility restrictions on immigrants and people whose disability is due to substance abuse, that also drive use of emergency departments by people with psychiatric disabilities.
However, hospitals and emergency department staff share the responsibility for emergency department delays and boarding of psychiatric patients because they persistently and unnecessarily overadmit psychiatric patients. The scarcity of inpatient beds, although real, is not the sole source of the problem. Disproportionate admissions can stem from the following:
Lack of staff with experience in mental health issues.
Exaggerated and misplaced liability fears.
“Iatrogenic” admissions, in which a patient who arrived at the ED in relatively stable condition becomes agitated and out of control as a result of delays or other ED experiences.
It is clear that action at the national, state, and hospital levels is needed to alleviate the misuse of social resources and provide people in psychiatric crisis the care that EDs are not equipped to supply. Two crucial and complementary avenues to solving the current situation exist. The first is the addition and funding of alternative forms of psychiatric crisis care, from crisis houses and respite beds to peer drop-in centers, family foster care, and mobile crisis units (4). Accomplishing this is more difficult than may be apparent, because these alternatives can rarely access traditional reimbursement dollars and often do not provide the social control function that makes EDs magnets for secondary users (see the section “State Commitment Laws and Secondary Users” later in this chapter for discussion of this term). Finally, the familiarity and accessibility of EDs are attractive features to people under great stress.
The second solution is for EDs to do all they can to reduce inappropriate and unnecessary psychiatric inpatient admissions. This will require a significant change in culture and support by hospital leadership. Reducing the current focus on liability issues and speed of disposition, resisting the pressures of secondary users such as police or family members to admit patients, working proactively with other social agencies that serve patients who appear frequently in the ED, and adopting a recovery and rehabilitation orientation—all of these proposals run fundamentally contrary to the culture in many EDs. Often, sheer exhaustion prevents staff from doing outreach and creating alliances, both with mental health systems and political representatives, that might result in better coordination, higher funding, the creation of crisis alternatives, and other measures to alleviate some of their burdens.
THE LAWS THAT DRIVE EMERGENCY DEPARTMENT USAGE AND POLICIES
Emergency departments are gatekeepers for two crucially important systems: the legal system of involuntary commitment and involuntary treatment, and the inpatient psychiatric treatment system. Yet staff in emergency departments have little training in assessing people with psychiatric disabilities, and generally even less knowledge of the laws that create the system in which they operate.
State Commitment Laws and Secondary Users
All states have statutes providing that people with mental illness who are dangerous to themselves or others as a result of their mental illness may be involuntarily detained. State commitment laws generally provide that there are three classes of individuals with the power and authority to detain a person involuntarily: judges, police, and medical professionals. Judges are generally not available after hours, and neither are most medical or mental health professionals. Therefore, when others—family members, group home providers, landlords, or school authorities—perceive that a person with a psychiatric disability needs to be involuntarily detained, there are two potential solutions to the problem: calling the police or going to the emergency department. Police, in turn, often use their powers of detention to bring a person displaying mental health symptoms to the emergency department, and are in fact encouraged to do so when the perceived alternative is jail (5). Emergency departments are the gatekeepers for two crucially important systems—the legal system of involuntary commitment and the mental health treatment system of inpatient care—and they are always open.
The power of emergency departments to detain people with psychiatric disabilities, conferred by state civil commitment laws, is key to understanding a major component of ED use. The emergency department is open 24 hours a day, 7 days a week, and because of federal EMTALA requirements it has no eligibility criteria, nor can it reject any initial presentations for assessment. Family members, case managers, police officers, group home operators, nursing homes, and others solve their own problems with individuals with psychiatric disabilities by bringing those individuals to the emergency department for evaluation and (more important) detention. This is an effective and efficient solution for these “secondary users” of emergency departments, and is usually cost free for them.
It should be clear that not all family members, police officers, and others who accompany people with psychiatric disabilities to EDs are secondary users. Some come with the individual to provide comfort and advocacy; some police officers are genuinely trying to get treatment for someone who might otherwise be in a jail cell. The definition of secondary user requires that the ED visit be initiated by the secondary user to solve his or her problems created by an individual with a psychiatric disability.
Secondary users are not confined to those who bring an individual to the emergency department. When mental health professionals leave messages on their answering machines advising any patient calling after hours to go to the emergency department, they are not only acting unethically (6,7), they are also secondary users, solving their problem of after-hours emergencies by thrusting it on the local emergency department. When state mental health agencies cut the bud-gets of crisis services, they are transferring part of their professional responsibilities—to provide on-call coverage, or to fund the full spectrum of mental health services for their clients—to emergency department staff without compensating the ED for taking on those responsibilities.
Secondary use may account for a substantial number of mental health–related visits to the emergency department, and policy solutions to emergency department problems must begin with data collection that identifies secondary users as such and begins to search for strategies regarding accountability. For example, community mental health providers could be required to report their use of emergency departments for mental health–related events, and use could be audited to see whether it reflected inadequate de-escalation skills on the part of provider staff. State mental health agencies might be legislatively required to assign case managers to any of their clients who used the emergency department more than six times a year.
But simply having the obligation to assess people for potential risk associated with psychiatric disabilities, and the opportunity to involuntarily detain those people, does not by itself lead to increased admissions. Emergency department staff do not have to involuntarily detain people with psychiatric disabilities just because they can involuntarily detain them. Rather, in many involuntary detentions, liability fears overshadow clinical judgment. In addition, it generally takes less time to do an assessment resulting in admission than to take the time to arrange discharge and outpatient follow-up. Thus, the pattern continues, in which the patient perceived as a problem is passed along to an inpatient unit, much as the person’s presence in the ED may be the result of someone passing his or her problem along to the ED.
State Tort and Malpractice Laws and the Problem of Unnecessary Admissions
Decisions made by ED professionals to admit psychiatric patients to inpatient beds are driven by a complex mixture of factors. In addition to clinical concerns, pressure from secondary users such as family or police may increase the chances of inpatient admission regardless of clinical presentation. Finally, many emergency department staff acknowledge that liability concerns play a part in decisions to admit a psychiatric patient. Upon closer examination, a substantial number of these concerns appear to be both exaggerated and misplaced.
First, ED decision makers tend to focus almost completely on liability arising from failure to admit an individual. Inpatient admission is seen as the “safe” route, to avoid the risk that the individual might later commit suicide or harm someone else. This focus on psychiatric disposition may obscure or minimize other important clinical and liability issues, including inadequate assessment, failure to attach sufficient importance to an individual’s medical symptoms or concerns, or the use of force in emergency departments to prevent an individual from leaving.
Furthermore, liability for patient suicide almost always results not from the simple failure to predict the suicide but from errors that are far easier to avoid, such as failure to read a psychiatric consult or failing to access readily available collateral information. In most cases where juries find liability, there is an apparent and egregious circumstance—for example, a patient requesting admission being told in virtually the same breath that she was not being admitted because she did not meet inpatient criteria and did not have health insurance, or a patient with suicidal
ideation being discharged from the emergency department with a 30-day supply of drugs and an appointment 1 month later.
ideation being discharged from the emergency department with a 30-day supply of drugs and an appointment 1 month later.
Ironically, ED staff may be unaware of state-of-the-art research that counsels that people who are chronically, consistently suicidal as a reflection of an underlying personality disorder rather than major depression should not necessarily be hospitalized (8,9). In addition, ED staff increase the likelihood of their own legal liability by accepting a model of complete responsibility for predicting dangerousness that does not reflect reality and that inappropriately assigns to mental health professionals all risk of adverse outcome. For example, a well-known risk factor for an adverse outcome is the presence of guns in the patient’s household (10). ED staff should always inquire about whether there are guns in a patient’s residence and document the response, advise family members or others who share the household to dispose of the guns (locking them in a cabinet is not sufficient to reduce risk), and document that advice. The ED cannot be held responsible for involuntarily detaining anyone who has guns in his or her household. This risk is the family’s responsibility, and to hospitalize someone because of it postpones a situation over which ED staff have no control because the person will go home sooner or later. ED staff can identify and fortify protective factors, and identify and work to reduce risk, but unless an individual is truly incompetent, risk and responsibility should be shared with the patient and his or her family, who best know the circumstances of their environment and lives.
Often, ED staff err by documenting only the evidence supporting their conclusions. Good documentation shows that the professional appreciated and assessed for risk and, where appropriate, sought consultation. Good documentation cites both protective factors and risk factors, and underscores the steps taken to enhance the former and reduce the latter. Good documentation reflects any available input from collateral sources regarding both risks and strengths, as well as an assessment of the reliability of the collateral source (some secondary users provide inaccurate information in an effort to obtain admission for a patient). All of these steps help insulate thoughtful dispositional decisions—whether the decision is to admit or to discharge a patient—from liability.
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