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California's legal system?

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bisell26

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Hi everyone,
I'm a new intern and am currently doing my off service rotation in Medicine. Looking forward, I was wondering if there are certain resources I should see or information I should gather about what to expect when it comes to the legal system in California when it comes to involuntary/voluntary holds.

I have an idea about a 5150 and 5250. But what about the stuff in between if you wanted to keep someone longer or commit them to an inpatient facility, is there any court related documentation you would need to file as a resident psychiatrist?

Where I'm from, the resident's did physician reports to court, is there anything of that nature in California?

Thanks
 

notdeadyet

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Here's a very brief overview of the involuntary holds in California. You can google Lanterman-Petris-Short Act for more information. The numbers below are commonly thrown around and refer to the Welfare and Institution Codes sections.

5150 - 72 hour hold for Danger to Others (DTO), Danger to Self (DTS), or Grave Disability (GD). Very low threshold for filing this one (can be filed by social workers, police officers, etc.). The patient technically has the right to appeal, but functionally doesn't as the appeal process would take longer than the actual hold. This one takes a few minutes to fill out. It must be accompanied by an advisement which similarly takes a few minutes.

5250 - 14 day hold for DTO, DTS, or GD. This one takes a few minutes as well, typically longer as it will potentially be viewed by a judge. This is filed prior to the expiration of the 5150. It does not need to be the same grounds as the 5150, though it typically is. It almost always includes GD (it's hard to convince judges that you need to hold someone for up to 17 days due strictly to violence risk). Patients have a right to appeal this one. Patients are either brought to court or the judge comes and sets up "court" at a hospital unit or other such site. The physician (in academic programs, this is typically done by residents) represents the hospital filing the 5250 and the patient has an advocate (patient advocate and/or lawyer). The hearing lasts 10-30 minutes depending on complexity. I usually have interns watch me do one, then I have them do them on their patients from then on.

Riese - For patients who are not taking medications, a separate filing called a Riese is done. This is a longer filing that takes about 15 minutes to fill out. The purpose of this hearing is to allow the hospital to give non-emergent psychotropic medications involuntarily. This one entails documenting what medications were offered and when they were refused and a basic evaluation that demonstrates that the patient lacks capacity to make this decision. Riese hearings are typically held in conjunction with 5250 hearings.

5260 - Much more rare. 14 day holds for DTS after 5250 expiration.

5300 - Much more rare. 180 day holds for DTO after 5250 expiration.

5270 - More commonly referred to as Temporary Conservatorship or T-Con for GD. 30 day to 6 months. An MD makes an application to the Public Guardian's office indicating that the patient does not have capacity due to mental illness to make certain decisions for themselves. A judge reviews the application and makes the determination. The patient has the right to appeal. These are more involved. I often have residents do the paperwork on this with me but you need to be a licensed physician to appear in court when there is the hearing (which is typically in court, not on the unit).

5350 - More commonly referred to as Permanent Conservatorship or P-Con for GD. Good for 1 year, thought the patient may appeal it every 6 months. Similar to the T-Con in process and requirements.
 
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notdeadyet

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A few tips re: the above (albeit some self-evident):
  • Write neatly on these damn things. It may not be you answering to them in court. Nothing worse than having to go to court about matters that were documented but unreadable.
  • Understand that Grave Disability has a specific meaning. It refers to the inability to access food, clothing, or shelter due to mental illness. There is a little bit of wiggle by jurisdiction, but keep in mind that GD is the inability to access these things, not a refusal to do so. In other words, if someone's plan is to sleep on the street because they hate shelters, this is not GD; if they make this choice because the CIA has bugged all buildings, this is GD. Planning on getting food by digging through dumpsters is not GD, distasteful as it may sound to you.
  • Understand that the LPS system above pertains to DTS, DTO, and GD due to mental illness. This gets very, very challenging based on location and philosophy. Get to know the philosophy of where you are at. I have turned away violent people brought in by police because they were not mentally ill, they were just violent. They were blocked from PES and taken to jail. That will not fly in all jurisdictions.
  • Understand that mental illness as it pertains to the involuntary hold system in California does not include substance abuse other than alcohol. So if someone is intoxicated on methamphetamine, they are not technically hold-able due to the methamphetamine, unless they are psychotic from it or the like. Similarly, someone should not be considered hold-able due to dementia (this would require medical probate, which is happily the internal med/neuro's team's responsibility). Again, this stuff will differ by locale and philosophy so find out yours.
  • Learn the policy for Tarasoff Incident, if you haven't already. In California, if someone communicates a serious threat of physical violence against an identifiable victim, there is a requirement that you make a reasonable effort to notify the victim and that you notify police (including information related to the threats and efforts to notify the victim).
 
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splik

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I recently found out that not every state is a Tarasoff state, which completely blows my mind.
The Tarasoff ruling is specific to california, though most states have either codified or in common law indicate a duty to warn or protect potential victims. even california, where the Tarasoff ruling originated from does not uphold a duty to warn, but a duty to protect (though many states including Washington, Arizona, Colorado etc codify a mandatory duty to warn). It is a common misconception, but there is a difference between the two. While in practice warning may safeguard against danger -or at least shield the clinician from liability (if done correctly) - there is no requirement to do so in California. And this is actually quite sensible, as the purpose of warning is to try and reduce the risk of badness befalling the potential victim. If it is discerned that breaching confidentiality may increase risk to the victim, then it would not be in the best interest to warn the victim. In practice warning the victim typically does reduce risk, but that is not always going to be the case.

Btw, depending on the state, do not assume that you have immunity from liability by discharging duty to warn, there have been several cases where psychiatrists have been found liable for breach of confidentiality (the most famous case is Hopewell vs Adebimpe) though in this case the psychiatrist discharged perceived duty to warn via letter.. which is asking for trouble and also didnt tell the patient
 

notdeadyet

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even california, where the Tarasoff ruling originated from does not uphold a duty to warn, but a duty to protect (though many states including Washington, Arizona, Colorado etc codify a mandatory duty to warn). It is a common misconception, but there is a difference between the two.
Good point.

Splik is talking about a change in 2013 to California Civil Code §43.92. The only change was in the wording in which the change was "from a duty to warn and protect to a duty to protect." This is satisfied by "by making reasonable efforts to communicate the threat to the victim or victims and to a law enforcement agency." Though the terminology changed, the reasonable efforts described did not. In actuality, unless you can demonstrate that warning the victim would increase the risk in some way, psychiatrists will functionally err on the side of warning in a risk/benefits judgment.
 

PistolPete

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Good point.

Splik is talking about a change in 2013 to California Civil Code §43.92. The only change was in the wording in which the change was "from a duty to warn and protect to a duty to protect." This is satisfied by "by making reasonable efforts to communicate the threat to the victim or victims and to a law enforcement agency." Though the terminology changed, the reasonable efforts described did not. In actuality, unless you can demonstrate that warning the victim would increase the risk in some way, psychiatrists will functionally err on the side of warning in a risk/benefits judgment.

How do you warn and protect the victim if you don't have their phone number and/or address? I always thought that the requirement would be enough if one notified police.
 

smalltownpsych

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How do you warn and protect the victim if you don't have their phone number and/or address? I always thought that the requirement would be enough if one notified police.
Reasonable attempt to notify intended victim is how I have always understood that. In the Tarasoff case, the psychologist had access to the information necessary to warn the victim and didn't because of confidentiality. If I have no way of contacting the potential victim, then I can't notify them and no court should hold me liable for not doing something that was not feasible. In the past, I have documented the reasonable attempts to contact that I made including accessing emergency contact information from patient file, search of internet, as well as contacting local law enforcement authorities.
 
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notdeadyet

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Reasonable attempt to notify intended victim is how I have always understood that. In the Tarasoff case, the psychologist had access to the information necessary to warn the victim and didn't because of confidentiality. If I have no way of contacting the potential victim, then I can't notify them and no court should hold me liable for not doing something that was not feasible. In the past, I have documented the reasonable attempts to contact that I made including accessing emergency contact information from patient file, search of internet, as well as contacting local law enforcement authorities.
^^^ This. This is also why when you notify police, you let them know what efforts were made to notify the intended victim, unsuccessful or otherwise. You are not liable for not being able to track down the intended victim.

The fun part is when the intended victim is POTUS. If you work PES for any amount of time, you will eventually have a psychotic patient who has made a threat to harm the President. You end up with secret service on the unit. This is always a hoot because in my experience they have always looked like federal agents. I had an extremely paranoid schizophrenic patient who approached the agent (black suit, white shirt, red tie, and sunglasses) and tentatively ask who he was; he heard the reply "I work for the federal government." Hilarity ensues.
 
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MacDonaldTriad

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My least favorite part is when POTUS comes to town and the FBI starts bringing everyone who has made a past threat. They do tend to wear sunglasses indoors.
 
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bisell26

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Thanks guys. It's mind boggling how much states differ with regards to the healthcare resources. Is there any particular system or set of resources that exist for follow up and placement? Is there a state hospital for long term commitment? Also typically do you guys initiate ppl on risperdal and Zoloft in the inpatient setting?
 

Freddie Mercury

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Thanks guys. It's mind boggling how much states differ with regards to the healthcare resources. Is there any particular system or set of resources that exist for follow up and placement? Is there a state hospital for long term commitment? Also typically do you guys initiate ppl on risperdal and Zoloft in the inpatient setting?
From what I've seen so far in southern California at least, a lot of state hospitals closed which meant thousands of people that would have been there are instead now on the streets and ultimately end up in our PsychED and maybe our inpatient units. One of our attendings estimated that ~20%+ of the patients on our inpatient wards are people who would have been residents of state mental hospitals. In LA county at least, there is a public system set up for followup but most of the places seem like they are always full. There are private systems like Board and Cares that take a few but of course they cherry pick the "best" patients.
 

bisell26

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From what I've seen so far in southern California at least, a lot of state hospitals closed which meant thousands of people that would have been there are instead now on the streets and ultimately end up in our PsychED and maybe our inpatient units. One of our attendings estimated that ~20%+ of the patients on our inpatient wards are people who would have been residents of state mental hospitals. In LA county at least, there is a public system set up for followup but most of the places seem like they are always full. There are private systems like Board and Cares that take a few but of course they cherry pick the "best" patients.

Ah and here I thought California was increasing funding for mental health. Those patients that are in the psych ED's and inpatient settings, are they typically those that are brought in by police and deemed to necessitate long term care? I wonder how long some of those patients would stay in the inpatient setting.
 

MacDonaldTriad

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We all have inadequate resources and hate the fact that we have to manage our risk. Public mental health systems could spend 100% of their budget on acute beds and if someone gave them 50 more beds, the ERs could fill these in a few days and still beg for more. Similarly, you could shunt most of the budget into fancy intensive outpatient treatment and have mobile outreach teams that will prevent the need for hospitalizations. Problem is that these teams will still find patients who are “too sick” to be outpatients and end up crowding the ERs even more. This pendulum has been swinging for a long time and we have never seen the sweet spot present itself as the ideal division of dollars into acute and ambulatory efforts. The outcries of “they should….” Depend upon which setting you are in and what part of the elephant you are interested in.
 

bisell26

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Ahh the uncertainty that comes with this field.

I was wondering, if someone is on an involuntary hold, can you give them forced IM PRN medications without having any written documentation such as a B52?

Thanks
 

splik

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I am not sure what you are asking? what do you mean without any written documentation? presumably if you are forcing IM medications it is an emergent situation (as you cannot force antipsychotics in non-emergent situations on involuntary patients without a Riese hearing) and you will document this after the fact.
 

bisell26

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I am not sure what you are asking? what do you mean without any written documentation? presumably if you are forcing IM medications it is an emergent situation (as you cannot force antipsychotics in non-emergent situations on involuntary patients without a Riese hearing) and you will document this after the fact.

yes that is what i meant.

also, how long do you typically wait before doing riese petitions? how long do you let the patient refuse antipsychotic orally before forcing it on them?
 

splik

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yes you can give IM drugs in an emergent situation, the riese hearings are for capacity to refuse antipsychotics in non-emergent cases (i.e. the majority of the time).

answer to second question is it depends on the psychiatrist and it depends on the patient. also geographically i am told there are differences even between different counties in how this all operates. you probably dont want to be immediately filing a petition if they declined once without giving another chance to revisit. however if you know from records that they have always previously declined drugs, never adhere to antipsychotics otherwise, and are refusing now it would make sense to file the petition sooner right off the bat. I personally have a high threshold for giving drugs involuntarily as i believe that forcibly drugging someone is one of the worst things you can do to someone and should be avoided as far as possible. but some people will be more gung-ho about this. i hope you are talking to your attendings or even senior residents about this so you get a sense of how things are done in your area/hospital.
 

psych

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I wanted to make a few comments about the holds...

A 5270 is not a TCON.
The 5270 form is actually one page you fill out that looks almost exactly like the 5250 but it's only for GD. You make a copy just like the 5250 and give it to the pt when you advise them. You have a hearing on the unit just like a 5250.

The temporary conservatorship paperwork is a packet and it's much different. You submit this to the conservator's office. The pt doesn't see it. You don't advise them. The pt can be on a hold OR they can be voluntary when you submit for TCON. If they are voluntary you can submit it pretty much any time.
For TCON someone from the conservator's office will come out, visit the pt, and determine whether they are appropriate for TCON. TCON is supposed to mean you think this pt needs permanent conservatorship. There is no hearing for TCON and if the conservator's office agrees conservatorship is appropriate, it lasts 30 days. Of course this could be shorter if at some point, it's decided the pt can be discharged and the treatment team no longer wants to not pursue PCON.

The PCON hearing is after the 30 day TCON, and is off the unit, at the courthouse, in front of a judge. You have representation as does the pt. Watch out for these public defenders representing the pts! Some of them are... (I'll just say) "talented" and do everything they can to show that you are NOT an expert or you don't know enough about the pt ect.. It's not that uncommon a pt "wins" their PCON hearing. I'm sure you can imagine the poor outcomes...
The PCON, if upheld, is 1-2 years. Where I practice, pts on PCON then get put on the wait list for a long term locked facility. There aren't very many of these locked SNFs so sadly, pts become residents of the inpatient unit.

The 5270 was created recently because pts who needed more treatment days (but not PCON) were getting TCONed inappropriately. Sometimes pts just need more than two weeks to reconstitute to go back to their board and care. This is especially true when you have to wait to Riese them in order for them to take meds.

A writ is when a pt appeals the hearing officer's decision (for 5250/5270) or they want to contest the TCON. Writs are in front of a judge at the courthouse.

Rieses have to be done for each hold. Rarely that means 5150 but we don't like doing this because a 5150 hold is for 3 days. Usually we just wait for the 5250 to start which allows time for documented refusals and conversations with the pt about meds. You wanna riese someone asap but in most cases. That means as soon as pt is placed on 5250 (whether they've had the certification aka "cert" hearing or not), there's a Riese petition submitted and a Riese hearing on the unit. Riese hearings have to be done for TCONs but not PCONs. With every riese upheld, the pt can file a riese appeal. Riese appeal hearings are at the courthouse in front of the judge.

I could write about a ton of other nuances but you will learn it as you go... I apologize for the lengthy post!!
 
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jettavr6

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Here in California a few years ago, I was told after I tried to fill out a 5150 form, that only certain people were allowed to place holds on patients. Even though I am board certified, I was not (still not) certified to place 5150 holds. I never pursued it -- does anyone know more about this?
 

psych

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ER physicians and psychiatrists in LPS designated facilities can place holds (as well as police officers and PERT -anywhere).
As a physician, if you are not in an LPS facility, you cannot place a hold.
 

bisell26

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Gosh, I really hate California's legal system. It's such a pain in the rear to deal with all these clauses that didn't exist elsewhere. I feel people are discharged way too prematurely from the inpatient unit.
 

nitemagi

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ER physicians and psychiatrists in LPS designated facilities can place holds (as well as police officers and PERT -anywhere).
As a physician, if you are not in an LPS facility, you cannot place a hold.
Close, but not quite. You are generally LPS certified per facility, so you get certified for that hospital only. Outside of the hospital you can be certified by the county to do field holds, but very few do that.
 

bisell26

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Wonderful thread for such a crappy legal system that doesn't value Physician's opinons.

Question...let's say I have a patient who was on a Riese for IM Zyprexa...if pt is on a T-CON, does riese still matter at that point?

Thanks
 

splik

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Riese does not apply on a T-CON however, whether you can give forced drugs on a T-CON depends on whether the judge ticked the box for that on the T-CON. The same standard still applies, that by clear and convincing evidence, the patients does not have the capacity to make decisions regarding psychiatric treatment. If the patient was determined to have capacity, then no you cannot forcibly drug. Though usually the conservatorship does grant these powers since these patients typically do not have capacity regarding psychiatric treatment.

Also I don't know why you think that the system is "crappy" or does not value physicians opinions. Judges typically defer to the psychiatrist's expertise. The system is in place as a safe guard against abuse. Do you really think psychiatrists should have unfettered powers to deprive people of their right to freedom? or to drug whomever they want? Psychiatrists have showed time and again they cannot be trusted in this regard. If you read the case law for Riese (Riese v St Mary's Hospital) you will see the poor patient in the case had all sorts of horrible side effects from her drugs and the psychiatrist said she was "delusional". She was not and her wish to decline the toxic drugs she was given was not being respected.
 
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notdeadyet

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I'm with splik on this. In California, for holds and non-emergent involuntary psychiatric medications, the burden of proof is on the hospital (typically represented by the psychiatrist), but that is consistent with our country's legal system as a whole.

Our country has a pretty ugly history in the way we've treated our mentally ill. In California, the current system protects the rights of the mentally ill, but only by elevating those rights to the same ones that every citizen has. I testify quite a bit and while you get your occasional activist judge, for the most part the cases that were found for the patient deserved to be found for the patient because the hospital didn't have a legit case.

If you are a resident testifying in 5250s and Rieses and you feel the judges are consistently not valuing your opinion, have a few attendings that you respect (particularly if you have any forensically trained) sit in with you on your testimony. If your opinion isn't being valued, you're either not doing a good job testifying (and some residents get kind of thrown to the wolves with minimal instruction) or your judge is particularly malignant.
 
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