Emergency Psychiatry: Legal Issues

1. Emergency Psychiatry:Legal Issues

2. Conflicts of Interest Research Funding – Alexza, Janssen, NIMH Conference/Travel – Alexza, Eli Lilly, Janssen, Wyeth Ayerst Speakers’ Bureaus – Pennsylvania ACLU Stock Holdings – Johnson & Johnson, United Health

3. Disclaimer of Personal Values

4. Agenda for today • General legal principles • Legal process of emergency care and involuntary admission • Duties to 3rd parties

5. Key Points • General legal principles • Legal process of emergency care and involuntary admission • Duties to 3rd parties • To whom much is given, much is required • The default for treatment is the least restrictive alternative • We have a duty to protect, not to warn

7. What emergency psychiatrists do… • Triage. Who will be seen first? • Evaluation. What is going on with this patient? • Stabilization. What do I need to do to rapidly help the patient transition to the next LOC? • Disposition. Where is the best/most appropriate treatment setting? • Prioritization. What do I do next?

8. A tale of two fights

9. General Legal Principles

10. Basic Legal Ideas • Hierarchy of laws • Right to due process before deprivation of essential rights such as liberty, bodily integrity • Equal protection under the law • Protections are proportional to the rights at stake • Habeas corpus (Magna Carta?) and freedom from unjust confinement

11. The Power to Detain Beyond any other civilian authority More than most law enforcement officers Exceptional power and responsibility

12. To whom much is given, much is required John F. Kennedy

13. Courts and Opinions • Courts interpret and apply the law to matters brought before them by the executive branch or by citizens • Different courts handle different types of cases by subject matter, region, etc. • Appellate and supreme courts and opinions • Stare decisis and the common law

14. Defining duties and rights • Duty or right • Positive or negative • Permitted or prescribed • By legislation or common law • Concurring and dissenting opinions and dicta

15. Government Power & Agency Parens Patriae – paternalism, protection from one’s self Police Power – protecting others from aggression Arrest – to stop or detain, to limit from movement Least Restrictive Setting – outpatient better than inpatient; voluntary better than involuntary

17. NY Mental Hygiene Law

18. §9 What? • Mental Hygiene Law • Subset of NY Code • Section 9 for inpatient admission and commitment

19. In need of care & treatment • Has a mental illness • For which inpatient care and treatment in a hospital is appropriate • Minimum standard for all admissions • Applies to voluntary admissions

20. In need of involuntary care and treatment • A person has a mental illness • For which care and treatment as a patient in a hospital is essential to such a person’s welfare • And whose judgment is so impaired that he is unable to understand the need for such care and treatment • Applies to involuntary and emergency admissions

22. Likelihood to result in serious harm • A substantial risk of physical harm to the person as manifested by threats of or attempts at suicide or serious bodily harm or other conduct demonstrating that the person is dangerous to himself Or • A substantial risk of physical harm to other persons as manifested by homicidal or other violent behavior by which others are placed in reasonable fear of serious physical harm

23. Voluntary Status and Insurance Coverage • Legal status has no impact on insurance reimbursement for admission • And even if it did… • “Your honor, I should be excused… I only took away the patient’s rights because I wanted to get more money!”

24. Things the MHL cannot be used for • §9 admissions are not valid for pure substance addiction • §9 admissions are not valid for the treatment of medical disorders (e.g., tuberculosis)

25. If reviewed by a court (retention hearings) • Clear and convincing evidence of • Impairing mental illness • Substantial risk of harm • Unable to care for self • Imminent decompensation

26. The right to be free of involuntary treatment • Even if hospitalized involuntarily patients have a right to refuse treatment • PRN’s OK (emergency exception) • River’s hearing

27. The right to rot There is a substantial gap between the threshold for involuntary treatment and the threshold for a reasonable quality of life

28. Mental Hygiene Arrests • By LEO’s, healthcare professionals or DCS • Patient apprehended and brought to a §9.39/9.40 hospital for evaluation and/or admission • Acts as a warrant for arrest (police/sheriff must apprehend)

29. Mental Hygiene Arrests • Known or appears to be mentally ill • Appears to be a threat of significant harm to self or others • Noncompliance alone, only enough for 9.60/Kendra’s Law patients • Low threshold for MHA

30. Least Restrictive Setting • Nonadmission • Pure Voluntary Admission (9.15) • Conditional Voluntary Admission (9.13) • Emergency Admission (9.39, 9.40) • Involuntary Commitment (9.27)

31. Proportionality& Balance

32. Common Mistakes • Rights not given to the patient • Illegible writing or signature • Follow up examinations not documented in a timely manner • Dates and times not entered especially as they relate to arrival at hospital and time of examination

33. Common Mistakes • Patient arrives at hospital on a 9.37 and is changed to a 9.39 • 9.13 used on an adult (e.g., 18 year old ‘signed in’ by a parent) • 9.39 used when a patient is clearly willing to sign themselves in • 9.39 used when a patient does not meet criteria

34. Patient Rights & MHLS • Assurance and protection of patient rights is clinician and hospital duty • Duty to whole patient and all their needs • MHLS – patient’s representative • Adversary or ally?

35. Voluntary Admission (§9.13) • Patient wishes to be admitted and a physician concurs • Must have capacity (§9.17) • Being admitted to a psychiatric hospital • That they are making application for admission • The nature of the admission and rights relating to release • Intent to leave  up to 72 hrs to facilitate discharge or convert to involuntary • Cannot just “run the clock”

36. Informal Admission (§9.15) • Never intentionally used at Strong • A “pure voluntary” admission • Patient may leave at any time without restriction • No 72 hour window to convert to involuntary • A patient receiving care at a hospital “without formal or written application”

37. Dangerousness does not preclude a voluntary status

38. Emergency Admission (§ 9.39) Reviewed within 24 hours of admission (48 hrs of arrival) Confirmed by a second psychiatrist Right to hearing within 5 days Release or revise status in 15 days Allows involuntary treatment for acute agitation (PRNs) only

39. Emergency Admission (§ 9.39) Substantial risk of imminent and significant harm Does not appreciate or understand the need for treatment Known pattern of noncompliance For a minor, parent unavailable or unreliable

40. Dangerousness is necessary for involuntary admission

41. Extended Observation Beds (§9.40) Up to 72 hours of additional time for evaluation, stabilization or disposition Quasi-involuntary Must be confirmed within 24 hours (not one day) Any age Confirmed by a second psychiatrist

42. Two Physician Certification (§9.27) • 60 day time period • Right to judicial review • Usually when a patient is admitted from community or transferred • Can be used at tale end of 9.13 or 9.39

43. Certificate of DCS Admission (§9.37) • Mostly, transfer from other hospitals • Must be signed by first evaluating physician, CPEP (admitting physician) and confirmed by inpatient admission • Up to 45 days • If they arrive on a 9.37, keep them on a 9.37

44. Kids in the ED Emergency exception to consent – yes, we can evaluate in the absence of consenting parent Adolescents may present on their own for evaluation 18 and older – make all their own decisions 16-17 – either party’s consent tends to override refusal 15 and younger – parent’s consent

45. Consent & Confidentiality • If you can consent, you get confidentiality • Some more protections for adolescents • Clinician’s obligation to keep privat • Exception – child abuse reporting • Exception – HIPAA • Exception – duty to protect • Exception (limited/maybe) – emergency evaluation • Imminent need and patient lacks capacity

46. Duties to Third Parties Prosenjit Poddhar, Tatiana Tarasoff, and American Law

47. Legal Themes • No general duty to third parties • Confidentiality and privilege of clinical material • Confidentiality as essential element to therapy • APA submitted amicus curiae brief opposing duty to warn: “The end of psychotherapy”

49. The Tarasoff “Balance” • Duty to patient • Privacy and Confidentiality • Protecting / maintaining clinical rapport • Good public policy • Social role / police power • Preventable and serious harms

50. The broad duties to third parties • Duty to take reasonable steps to protect • Identifiable victim or class of victims • From reasonably foreseeable • Intentional* acts • Resulting from mental illness • Causing serious harm to persons*