Pt refuses to go to recommended dispo.

[nitemagi]

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I'm finding this discussion very refreshing. I knew psychiatry would have a few things that made me uneasy, but I've been pretty shocked by how cavalier holds are treated by bad psychiatrists.

I think it's easy to not look too deeply at how the hold system is great for the practitioner but can be a little unjust to the patient. In California, we have the 5150, under which you can put someone on a 72 hour hold for danger to self/others or grave disability. Makes sense and god knows we need it in psychiatry. But the patient has no right to protest this, so once it's thrown down, the opinion and word of one person can detain someone against their will. Great for us, but hard to reconcile the Fourteenth Amendment and the right to due process before denial of liberties.

Police officers issue them and there are some BAD uses of the 5150 that are completely misapplied. And while we throw down 5150's so often we think of them as meaningless, they have some consequences. A guy who works for Lockheed Martin can now lose his security clearance and therefore his job. A person loses the right to own firearms for 5 years.

I'm pro-psychiatry and pro-psychiatric holds, I just think discussion threads like these peeling back the layers to look at the ethics of some of what we do everyday is useful to prevent misapplication of powers.

Technically, a person CAN protest their 5150 and file a writ of habeas corpus to get themselves release. In truth by the time the hearing is held the 72h is likely up, unless they have a good lawyer, which means as expected the system favors the wealthy. Furthermore, a person CAN petition the court to get their firearms back. But I agree, there are consequences to the process, as there are to not taking away firearms from someone who is suicidal or homicidal d/t a mental illness. As with most of our decisions, it's a weighing of risk vs. benefit, on Average.

 

[michaelrack]

"Could you clarify what you mean by realistically? Do you mean it seems to work this way in practice?"

YES

"The sense I'm getting from this thread is that patient's are being held and essentially no one cares if there are legal grounds or not, but that's just the way it's done and it seems to work. "

YES (in many states)

 

[heyjack70]

I agree with everything you said, but if the issue is placement of someone with dementia, then we look at placement in rehab as a medical treatment. Thus, we are considering someone's capacity to accept or refuse medical treatment, not psychiatric treatment. Hence we don't use psychiatric holds in this situation.

But what if the patient refuses to go to rehab and demands to go home? I see what you mean by taking the perspective of rehab as medical care; this shifts the question to one of capacity to refuse medical treatment (vs a psych hold which is of course a different issue). But, pursuing rehab is not an emergency. I don't think you can legally force someone to have non-emergent medical treatment even if you think it's the best thing to do and the person doesn't have decisional capacity to accept/refuse.

The doctor's opinion holds little weight unless the patient is incompetent and has a guardian (in which case the guardian's opinion is the important thing), or the patient's condition requires emergent care and there is no surrogate to make decisions.

My preference for the psych hold is that it seems to be the only legal mechanism to prevent a person from leaving the hospital in this case. I agree that it may be a stretch to detain someone with dementia to psychiatry, especially because we can't treat them with anything to cause improvement of their condition, but I haven't heard of any legal alternative to this yet discussed.


Again, from what I'm reading, and my experience at various hospitals, I'm tending to agree with michaelrack that in practice, decisional capacity evals are getting done and patients are being held, but everyone seems to be working in the best interest of the patient and nothing negative comes of it. I would hope no court would fault a doctor preventing a demented patient form leaving the hospital when they believe in good faith that the patient will not be able to keep themselves safe; even if there is no legal basis to hold the patient.

 

[billypilgrim37]

But what if the patient refuses to go to rehab and demands to go home?

Those are actually two different decisions that might have different capacities. The patient may have the capacity to refuse to go to a rehab. He may not have capacity to make the decision to go home.

I think BobA are coming from the same thinking. Everything to do with psychiatry is irrelevant in this case. Not having capacity to make the decision to go home has nothing to do with psychiatry or laws related to psychiatry. It's really an entirely different topic.

My wife is a law student, and the one thing I've learned from her is that there's more to "law" than what's written down. Case law, precedent, community standards, and standard practice (in the case of medicine) is also incredibly important and considered. So, you might not be able to find one law that explicitly lays out how this works.

I personally think the psych hold is illegal in this case, and that it should not be applied, as it is irrelevant to capacity. But, if notdeadyet had to file an involuntary hold on somebody because that's the convention where he is, I wouldn't claim he was being unethical. I think you're hitting it on the head in that we're all acting ethically here protecting our patient and that we have some authority to do so.

Of course, if the demented patient starts trying to leave, someone tries to stop him, and he starts throwing punches, THEN he may have just been exhibiting agitation and behaviors that are psychiatrically relevant, and an involuntary commitment might be appropriate. Maybe. I'm just saying, even with my own very strict theory of how this should work, I admit it can seem a little gray.

 

[nancysinatra]

I agree with everything you said, but if the issue is placement of someone with dementia, then we look at placement in rehab as a medical treatment. Thus, we are considering someone's capacity to accept or refuse medical treatment, not psychiatric treatment. Hence we don't use psychiatric holds in this situation.

Perhaps these things vary by state. I don't think this is Consult 101 at all.

In the state I'm in, I was taught that judges determine competency, which is a binding legal category, but that doctors can determine capacity, which is more short term and relates to specific decisions patients face. There are different types of competence (and thus capacity)-- to refuse or consent to treatment, to write a will, to face trial, to be executed, and perhaps others. I suppose there must be a category about refusing placement? If it is not its own category then would it be considered similar to refusing treatment?

A doctor can determine capacity to refuse treatment but it's a short lived assessment, focusing on the specific treatment at hand. In my state my understanding is that the reason doctors can assess capacity to refuse treatment is because emergencies come up and the courts either aren't open, or can't respond fast enough. So in a way we are proxies for the judge when we do medical decision-making capacity assessments. Ideally, I suppose, enforced treatment decisions would be made in court, but that's not practical.

I don't know if the fact that doctors (any kind of doctors, not just psychiatrists) can assess capacity to refuse treatment means that they can ALSO determine capacity to refuse placement. By definition capacity is not global, and it is not a permanent state. Placement in a nursing home or other facility is a pretty far reaching... I'm guessing that's why these cases usually lead to guardianship applications?

Now DURING the time when the patient's competency case is pending before the court, does a doctor have the authority to determine that the patient lacks capacity to LEAVE? I have no idea. To answer that wouldn't we have to look at the specific state laws that give doctors permission to act as proxies for the court and do capacity determinations? If state laws don't clarify it, then maybe there's some legal precedent in the form of past cases?

Placement is not necessarily synonymous with treatment. A person could be placed in a nursing home with absolutely no expectation of improvement.

As far as using a psychiatric hold to keep someone in the hospital while the case is pending--aren't psych holds in all states just way too short? In my state, we can hold someone for 24 hours, and then we are required to file paperwork that goes to the court. No way would a court approve a psych hold to have someone stay in the medical hospital for 3 months or whatever!! The purpose of psych holds is to commit people to psychiatric TREATMENT. But where's the treatment here? Even if you argued that they are disabled 2/2 dementia and would deteriorate if discharged, still, the medical hospital is not treating their dementia.

 

[nancysinatra]

This discussion has been interesting--it reminds me of some questions I have! Such as:

- What happens when a patient has a guardian, and the guardian seems like they need a guardian? I've seen people come into the ER where the guardians just seem out to lunch.Iin my state, if the patient has a guardian, we cannot commit them to either to the psych EC or the psych inpatient unit. Only the guardian can sign them in. But some guardians either can never be reached, or they seem demented or psychotic. Is there a guardian replacement process within the courts?

- It seems to me that the way we address decision making issues in psychiatry and the rest of medicine follow totally different paths. With psychiatric decision making, we have the court system involved. With medical capacity issues, the courts are almost never involved. Even when a patient is deemed to lack medical capacity because their thinking is disordered--even then we do not place "medical holds" on patients that must be approved by judges. We just do the capacity assessment and move on. But if a patient is in danger because of a psychiatric problem, we have to get a judge involve in order to treat them against their will. Why are there these different avenues? I would guess it has to do with the history of psychiatry, and abuses or paternalism which must have led to the laws we currently have. But general medicine has its history of paternalism and abuses too. It's interesting that they are so different.

 

[billypilgrim37]

What happens when a patient has a guardian, and the guardian seems like they need a guardian? I've seen people come into the ER where the guardians just seem out to lunch.Iin my state, if the patient has a guardian, we cannot commit them to either to the psych EC or the psych inpatient unit. Only the guardian can sign them in. But some guardians either can never be reached, or they seem demented or psychotic. Is there a guardian replacement process within the courts?

Interestingly in my state, guardians CAN'T sign people in psychiatrically (which is really counterintuitive). I believe a court can specifically state that the guardian could make decisions about psychiatric care, but I've never seen it, and unfortunately being a guardian for medical care is somehow separate. So those folks do get committed on the involuntary commitment despite having guardians.

 

[michaelrack]

I don't know if the fact that doctors (any kind of doctors, not just psychiatrists) can assess capacity to refuse treatment means that they can ALSO determine capacity to refuse placement. By definition capacity is not global, and it is not a permanent state. Placement in a nursing home or other facility is a pretty far reaching... I'm guessing that's why these cases usually lead to guardianship applications?

.

When I was doing inpt consults I would typically recommend TEMPORARY nursing home placement (assuming the family was in agreement with the patient going to a NH) with reassessment of the pts's mental status/capacity within 30 days. I have no idea how often this reassessment was acutally done by the outpt doc

 

[BobA]

Perhaps these things vary by state. I don't think this is Consult 101 at all.

In the state I'm in, I was taught that judges determine competency, which is a binding legal category, but that doctors can determine capacity, which is more short term and relates to specific decisions patients face. There are different types of competence (and thus capacity)-- to refuse or consent to treatment, to write a will, to face trial, to be executed, and perhaps others. I suppose there must be a category about refusing placement? If it is not its own category then would it be considered similar to refusing treatment?

A doctor can determine capacity to refuse treatment but it's a short lived assessment, focusing on the specific treatment at hand. In my state my understanding is that the reason doctors can assess capacity to refuse treatment is because emergencies come up and the courts either aren't open, or can't respond fast enough. So in a way we are proxies for the judge when we do medical decision-making capacity assessments. Ideally, I suppose, enforced treatment decisions would be made in court, but that's not practical.

I don't know if the fact that doctors (any kind of doctors, not just psychiatrists) can assess capacity to refuse treatment means that they can ALSO determine capacity to refuse placement. By definition capacity is not global, and it is not a permanent state. Placement in a nursing home or other facility is a pretty far reaching... I'm guessing that's why these cases usually lead to guardianship applications?

Now DURING the time when the patient's competency case is pending before the court, does a doctor have the authority to determine that the patient lacks capacity to LEAVE? I have no idea. To answer that wouldn't we have to look at the specific state laws that give doctors permission to act as proxies for the court and do capacity determinations? If state laws don't clarify it, then maybe there's some legal precedent in the form of past cases?

.

In my state, typically a rehab facility won't actually accept the patient until guardianship is in place because the capacity would have to be re-evaluated every time the patient wanted to leave the rehab facility. Instead, the physician is just saying that at this point in time the patient doesn't have capacity to refuse placement, and then guardianship proceedings go forward while the patient is waiting in the hospital. During my consult rotations we did this on a near daily basis.

 

[Encephalopathy]

Unless the pt meets hold criteria or lacks capacity, you have to let them go. Pretty sure there's no case law precedent that an OT recommendation can overrule an individual's basic constitutional rights.

If you took everyone who was functioning at a 4.2 or below and kept them in a hospital under 24 hour supervision, you would need a lot more hospitals and sitters. You have to accept that people are entitled to make their own decisions, even if it conflicts with what the treatment team may think is optimal.

If there is concern that the pt is unable to care for self in the home, file an APS report and have a SW evaluate. If they are not eating at home or living in filth, then you have your hold criteria and that's a different story.

 

[heyjack70]

Unless the pt meets hold criteria or lacks capacity, you have to let them go. Pretty sure there's no case law precedent that an OT recommendation can overrule an individual's basic constitutional rights.

If you took everyone who was functioning at a 4.2 or below and kept them in a hospital under 24 hour supervision, you would need a lot more hospitals and sitters. You have to accept that people are entitled to make their own decisions, even if it conflicts with what the treatment team may think is optimal.

If there is concern that the pt is unable to care for self in the home, file an APS report and have a SW evaluate. If they are not eating at home or living in filth, then you have your hold criteria and that's a different story.

Thanks, I appreciate your response. The points you raised are useful.

I would argue that discharging a patient to home by themselves, with an ACL at 4.2, after getting OT recommendations that they need 24 hour care, and having them set their house on fire accidentally, could be a problem for you once the family/lawyer find out. It's one thing for a person to be at home functioning poorly, but I think it's very different when they are in your hospital and you as their physician are responsible for deciding on an appropriate disposition. I would worry about this. You have a patient functioning on the edge, and a note in the chart saying they should have 24 hour care. Most physicians have no expertise in formally assessing home functioning/safety, but you decide to discharge the patient home anyways? I don't know how you could defend against this discharge/bad outcome on the witness stand. Better to not have the ACL in the first place in this case. Just my opinion.

Regarding you response, I was asking about the patient needing placement, but lacking decisional capacity and demanding to return home. What legal grounds do you have to keep them in the hospital until you can arrange appropriate placement/guardianship, arguing that a decisional capacity evaluation is not enough and a psych hold may be inappropriate for a patient with dementia.

 

[Scorcher31]

He can still make the decision to go home despite the likely poor outcome if he really understands all the risks, benefits and alternatives to this situation. This includes the likely consequences of his action, manipulation of the information, and the ability to verbalize the reasoning behind his decision. His decision should also obviously not be greatly affected by mental illness.

If he does not understand these you can report he doesn't have capacity at this time to leave the hospital as he would be in immediate danger via his inability to care for self and is not aware of this.

Where this gets tricky is if you have a bad OT therapist or the scale you are using is cruddy. He may not acknowledge the risks you state because those risks are not truly there. Personally, it's well worthwhile to have them use a different scale and you be present for the testing.


In short:
1. Make sure he really is a risk via inability to care for self
2. Explain everything to him and evaluate his true ability to understand and evaluate the situation

3.If testing shows not dangerous, let leave
If testing shows dangerous, but he really does have good capacity, document the hell of it and let leave
If testing shows dangerous and no capacity, hold for social work for dispo planning (possible 1:1 or restraints)

 

[michaelrack]

If testing shows dangerous and no capacity, hold for social work for dispo planning (possible 1:1 or restraints)

It's a bad idea to use restraints on a non-agitated pt who just wants to leave. Although it may be impractical, 1:1 is the best solution (and the 1:1 PERSonnel shouldn't forcibly restrain the patient, they should notify security immediately if the patient leaves)

 

[Scorcher31]

Obviously you always want to use the least restrictive means possible. I would agree 1:1 is probably the way to go, but if the patient leaves and dosent have capacity to leave then the hospital is liable. I've seen this happen where demented patients have wandered out of hospitals/ nursing homes (they diddn't have capacity to leave) and hospital were held liable.

 

[michaelrack]

Obviously you always want to use the least restrictive means possible. I would agree 1:1 is probably the way to go, but if the patient leaves and dosent have capacity to leave then the hospital is liable. I've seen this happen where demented patients have wandered out of hospitals/ nursing homes (they diddn't have capacity to leave) and hospital were held liable.

restraints are not a substitute for 1:1. Restraints are dangerous (pts can strangulate etc) and pts in restraints should be closely monitored. In my opinion, restraints, as a substitute for 1:1, are malpractice

 

[billypilgrim37]

restraints are not a substitute for 1:1. Restraints are dangerous (pts can strangulate etc) and pts in restraints should be closely monitored. In my opinion, restraints, as a substitute for 1:1, are malpractice

Totally agree. The exception would be if the patient is becoming very agitated with redirection by the 1:1, and even then pharmacologic treatment for agitation is probably safer and less restrictive than physical restraints.

A tox guy I know loves the mantra "Chemical restraints before physical restraints." While I've been taught to bristle at the phrase "chemical restraints," his point is clearly with pt best interest in mind.

 

[nancysinatra]

I still don't understand what gives doctors the legal authority to force someone who has no urgent medical problems to stay in the hospital for months on end while guardianship is pursued.

What if the guardianship application fails? Is the MD who kept the patient against their will for months liable for false imprisonment charges? If I were the patient in that situation, I would be irate. Especially if I was held because a flawed OT assessment!! You can bet I'd be in court getting expert witnesses to testify about the validity of that OT assessment if there was even the slightest question about it.

In my experience so far, whenever there is a gray area, we fill it in by giving ourselves the authority to do what we want to patients, claiming it's in their best interests. However, over time new laws have increasingly prohibited this kind of paternalism. There was a time in history when patients didn't even have to be dangerous to be involuntarily committed. They just had to "need treatment." But that was overturned.

In my state we fill out a specific committment form that goes to the court when we want to involuntary commit someone. The turnaround time from the judge is a few hours. The commitment authorizes involuntary admission to a psychiatric hospital and nothing else (we have a similar but separate procedure for forced medication on the inpatient psych unit). The paperwork does not authorize the involuntary holding of a patient in the medical hospital while they await transfer, which can take weeks if they have a resolving medical problem. By the time the problem resolves the acute dangerousness has often passed and commitment is no longer justifiable.

But nonetheless, I have had attendings give me a wide variety of justifications for committing medical patients using this psychiatric court paperwork, and then forcing them to stay in the medical hospital for a prolonged period while they await transfer. If it's a short period and their transfer is imminent, I can understand better. But recently we had one guy who was held like this for several weeks. He is smart and he looked up the laws, and learned that our paperwork we were using to hold him wasn't applicable. When I asked the attending what we should do, she said we would just hold him on the basis of "lacking capacity."

Why is he being held? Because several weeks ago he made a pretty serious suicide attempt but he has some medical issues where a psych hospital won't currently take him. At this point even psychiatric commitment is on shaky grounds because he's no longer endorsing SI at all. Let alone saying he "lacks capacity to leave."

But anyone lacks capacity when you are nervous about them leaving...

It's one thing to have paperwork backing up your actions that has been signed by a judge. But if all you have is your conviction that someone "lacks capacity"--I would say, you had better be right! Especially if months are going to go by before the court hears the case. False imprisonment can be a criminal charge!

 

[Encephalopathy]

I would argue that discharging a patient to home by themselves, with an ACL at 4.2, after getting OT recommendations that they need 24 hour care, and having them set their house on fire accidentally, could be a problem for you once the family/lawyer find out. It's one thing for a person to be at home functioning poorly, but I think it's very different when they are in your hospital and you as their physician are responsible for deciding on an appropriate disposition. I would worry about this. You have a patient functioning on the edge, and a note in the chart saying they should have 24 hour care. Most physicians have no expertise in formally assessing home functioning/safety, but you decide to discharge the patient home anyways? I don't know how you could defend against this discharge/bad outcome on the witness stand. Better to not have the ACL in the first place in this case. Just my opinion.

Yes, if there is a negative outcome, there certainly could be medicolegal ramifications. However, that is true for most difficult decisions we make. A treatment plan chosen simply to avoid an imagined worse case scenario would be practicing defensive medicine, which violates the fundamental principle of autonomy. Clear, thorough documentation is essential. Filing a report and sending someone to the home should also lessen liability.

It might also be worth it to sit down and discuss the score and recommendation with OT. We're talking about a single test score basically determining the future course of the pt's life. Ask how the score was determined - not to be dismissive, but my understanding is that it is based off of threading needles and stitching things.

I'm not saying it's not a good test for cognition, but I wouldn't determine placement solely based on: "4.2 - Repeats the whipstitch or does the whipstitch followed by an attempt to do a second unrelated step. Does not benefit from first and second demonstration." (http://www.allen-cognitive-levels.com/acls.htm)

Furthermore, it's a screening test. From the same website: "The screening tools are designed to provide an initial estimate of cognitive function. The score from the screen must be validated by further observations of performance. The anticipated discharge environment determines the selection of further observations of performance. When the anticipated discharge setting is a stable home environment or an institution, activities of daily living (ADLs) can form the basis for further observation."

You're right that it would be much easier if they had never been tested - I've had a few discharges postponed by unacceptably low Allen scores myself. Still, more than a few times I've discharged pts at 4.0 to shelters (I work in a busy county hospital so YMMV).

Regarding you response, I was asking about the patient needing placement, but lacking decisional capacity and demanding to return home. What legal grounds do you have to keep them in the hospital until you can arrange appropriate placement/guardianship, arguing that a decisional capacity evaluation is not enough and a psych hold may be inappropriate for a patient with dementia.

I thought pt had schizophrenia? Legal grounds will vary state-to-state. In California, if schizophrenia, the grounds would simply be "gravely disabled" because pt is unable to safely and appropriately utilize shelter. If dementia, it's considered "medical" and you'd file a probate conservatorship ("3200 petition").

 

[heyjack70]

Yes, if there is a negative outcome, there certainly could be medicolegal ramifications. However, that is true for most difficult decisions we make. A treatment plan chosen simply to avoid an imagined worse case scenario would be practicing defensive medicine, which violates the fundamental principle of autonomy. Clear, thorough documentation is essential. Filing a report and sending someone to the home should also lessen liability.

It might also be worth it to sit down and discuss the score and recommendation with OT. We're talking about a single test score basically determining the future course of the pt's life. Ask how the score was determined - not to be dismissive, but my understanding is that it is based off of threading needles and stitching things.

I'm not saying it's not a good test for cognition, but I wouldn't determine placement solely based on: "4.2 - Repeats the whipstitch or does the whipstitch followed by an attempt to do a second unrelated step. Does not benefit from first and second demonstration." (http://www.allen-cognitive-levels.com/acls.htm)

Furthermore, it's a screening test. From the same website: "The screening tools are designed to provide an initial estimate of cognitive function. The score from the screen must be validated by further observations of performance. The anticipated discharge environment determines the selection of further observations of performance. When the anticipated discharge setting is a stable home environment or an institution, activities of daily living (ADLs) can form the basis for further observation."

You're right that it would be much easier if they had never been tested - I've had a few discharges postponed by unacceptably low Allen scores myself. Still, more than a few times I've discharged pts at 4.0 to shelters (I work in a busy county hospital so YMMV).



I thought pt had schizophrenia? Legal grounds will vary state-to-state. In California, if schizophrenia, the grounds would simply be "gravely disabled" because pt is unable to safely and appropriately utilize shelter. If dementia, it's considered "medical" and you'd file a probate conservatorship ("3200 petition").

The question evolved early in the thread. The code 3200 sounds very similar to guardianship. Assuming a dementia patient with clear need to be in supervised living, does the 3200 probate happen instantly or does it take time for a for a judge to approve it?

 

[michaelrack]

I still don't understand what gives doctors the legal authority to force someone who has no urgent medical problems to stay in the hospital for months on end while guardianship is pursued.

What if the guardianship application fails? Is the MD who kept the patient against their will for months liable for false imprisonment charges?!

The doc shouldn't be making the decision to keep the pt in the hospital- the decision should be made by a surrogate decision maker (usually next of kin)...

 

[Encephalopathy]

Thanks, I appreciate your response. The points you raised are useful.

I would argue that discharging a patient to home by themselves, with an ACL at 4.2, after getting OT recommendations that they need 24 hour care, and having them set their house on fire accidentally, could be a problem for you once the family/lawyer find out. It's one thing for a person to be at home functioning poorly, but I think it's very different when they are in your hospital and you as their physician are responsible for deciding on an appropriate disposition. I would worry about this. You have a patient functioning on the edge, and a note in the chart saying they should have 24 hour care. Most physicians have no expertise in formally assessing home functioning/safety, but you decide to discharge the patient home anyways? I don't know how you could defend against this discharge/bad outcome on the witness stand. Better to not have the ACL in the first place in this case. Just my opinion.

Regarding you response, I was asking about the patient needing placement, but lacking decisional capacity and demanding to return home. What legal grounds do you have to keep them in the hospital until you can arrange appropriate placement/guardianship, arguing that a decisional capacity evaluation is not enough and a psych hold may be inappropriate for a patient with dementia.

The question evolved early in the thread. The code 3200 sounds very similar to guardianship. Assuming a dementia patient with clear need to be in supervised living, does the 3200 probate happen instantly or does it take time for a for a judge to approve it?

It takes time to approve it. Gotta do the whole court thing - at our hospital, it's medicine that does it. I'm not sure if there's some type of temporary hold approved by the court to be legally able to keep the pt while the process unfolds, but I presume there must be, because that's what happens.

But michaelrack is right, if there's no capacity, it simply goes to the closest surrogate decision-maker. A 3200 only applies when: 1) No capacity, 2) No guardian or relative, 3) the medical treatment recommended is non-emergent.

 

[heyjack70]

The doc shouldn't be making the decision to keep the pt in the hospital- the decision should be made by a surrogate decision maker (usually next of kin)...

If the patient has no next of kin? And no other surrogate?

 

[heyjack70]

It takes time to approve it. Gotta do the whole court thing - at our hospital, it's medicine that does it. I'm not sure if there's some type of temporary hold approved by the court to be legally able to keep the pt while the process unfolds, but I presume there must be, because that's what happens.

But michaelrack is right, if there's no capacity, it simply goes to the closest surrogate decision-maker. A 3200 only applies when: 1) No capacity, 2) No guardian or relative, 3) the medical treatment recommended is non-emergent.

This is my question.

 

[kugel]

Wow. The question remains, "What is the legal way to proceed with this patient in this state in this hospital?"

Please, ask your hospital's lawyer,
instead of all of us who have lots of different levels of training in different states.

 

[Encephalopathy]

This is my question.

So nothing about a temporary hold in the probate code (http://www.aroundthecapitol.com/code/getcode.html?code=./prob/03001-04000/3200-3212). I think the answer is simply that if pt doesn't have capacity, they can't leave AMA. If you've submitted a 3200 to the court that is pending, you are following due process and can't be penalized for holding an impaired pt in the meantime. Of course, as kugel says, your hospital's risk management or legal team would know best.

 

[Scorcher31]

So nothing about a temporary hold in the probate code (http://www.aroundthecapitol.com/code/getcode.html?code=./prob/03001-04000/3200-3212). I think the answer is simply that if pt doesn't have capacity, they can't leave AMA. If you've submitted a 3200 to the court that is pending, you are following due process and can't be penalized for holding an impaired pt in the meantime. Of course, as kugel says, your hospital's risk management or legal team would know best.

Exactly!! Besides sometimes capacity fluctuates along with delerium or mental illness. Reassess on a consistent basis, if they things change and they have capacity you can always discharge. Obviously if family or a surrogate is around you go with their wishes. Even in grossly inappropriate situations, successful unlawful holding lawsuits are very rare in psychiatry. More frequently than not they are for suicides, abandonment and adverse med effects.

 

[billypilgrim37]

Of course, as kugel says, your hospital's risk management or legal team would know best.

And by "know best," we mean "made up whatever goofy rule it is you're going to have to follow whether it makes sense to you or not."

 

[kugel]

And by "know best," we mean "made up whatever goofy rule it is you're going to have to follow whether it makes sense to you or not."

The original question was: "What is our obligation," in the situation of a patient who demands to leave, has no particular grounds for continuing a psych hold, but an OT judges to be likely unable to fully care for himself?


IF the question is "What is our medical obligation?" then the answer is likely "None," since keeping the patient in the hospital has no treatment value. You are not applying any medicine or procedure that will alleviate the symptoms or condition or return the patient to higher level of functioning. Keeping him in the hospital at this point is intended to remove his autonomy and force him into housing that others have decided is in his best interest. I'm not saying we never do this - clearly we do. What I'm saying is that this is not a "medical" decision in any classic sense.

If the question is "What is our Moral obligation?" then I have little to offer because I simply don't know how to answer that for anyone else.

If the question is "What is our legal obligation?" "What will best reduce the liability in a court (for me or for the hospital or both)?" Then the answer is clear that the lawyer who has been studying this field and who will be involved in defending you and the hospital in court "knows best" and has access to others who have even more expertise in this particular field.

Whether the answer you get from the Risk Management attorney seems goofy or whether it makes sense to you, unless you hold a JD and have years of experience in hospital risk management in your state, you are not the expert in this field. The law often "makes no sense" because it has been cobbled together by a mishmash of random pieces of legislation that were reactionary to individual events and written by legislators and lobbyists who have a variety of agendas - none of which are likely to be yours.
But if the question is about what a court will do, then that goofy nonsensical law is your best guide.

I wish that were not true.

 

[heyjack70]

Wow. The question remains, "What is the legal way to proceed with this patient in this state in this hospital?"

Please, ask your hospital's lawyer,
instead of all of us who have lots of different levels of training in different states.

The original question was: "What is our obligation," in the situation of a patient who demands to leave, has no particular grounds for continuing a psych hold, but an OT judges to be likely unable to fully care for himself?


IF the question is "What is our medical obligation?" then the answer is likely "None," since keeping the patient in the hospital has no treatment value. You are not applying any medicine or procedure that will alleviate the symptoms or condition or return the patient to higher level of functioning. Keeping him in the hospital at this point is intended to remove his autonomy and force him into housing that others have decided is in his best interest. I'm not saying we never do this - clearly we do. What I'm saying is that this is not a "medical" decision in any classic sense.

If the question is "What is our Moral obligation?" then I have little to offer because I simply don't know how to answer that for anyone else.

If the question is "What is our legal obligation?" "What will best reduce the liability in a court (for me or for the hospital or both)?" Then the answer is clear that the lawyer who has been studying this field and who will be involved in defending you and the hospital in court "knows best" and has access to others who have even more expertise in this particular field.

Whether the answer you get from the Risk Management attorney seems goofy or whether it makes sense to you, unless you hold a JD and have years of experience in hospital risk management in your state, you are not the expert in this field. The law often "makes no sense" because it has been cobbled together by a mishmash of random pieces of legislation that were reactionary to individual events and written by legislators and lobbyists who have a variety of agendas - none of which are likely to be yours.
But if the question is about what a court will do, then that goofy nonsensical law is your best guide.

I wish that were not true.

Your responses imply that this is a one in a million situation requiring case by case evaluation by risk management/hospital attorneys. Previous posters have said that this is actually a very common issue, "it's consult 101". If this is a common patient situation, then I have to imagine a procedure would be in place to handle it, based on past risk management consults for example. What I mean is that if it is common, doctors would not be consulting risk management on every case, rather a precedent would have been set at some point. So far the only real answers I've seen to legally handle this situation are that a psych hold can be used (which some posters think is inappropriate), or patients are detained against their will for "medical" reasons or "awaiting guardianship" because this is preferred to letting the patient go when that would be unsafe, even though there is no legal basis for the patient's confinement. Some posters have said that patient's are held awaiting guardianship, and it's assumed this is legal because this is what has always been done; which I think is rationally incorrect. You cannot assume something is correct just because it's always been done that way.

The significance of this thread, I think, is that the doctors posting here are handling this situation without adequate knowledge of the applicable laws; or without adequate knowledge of the laws and a rational explanation for why they do not follow the laws because it is in the interest of patient safety.

If the answer was: it's illegal to hold someone like this technically, but it's done because it's safer for the patient, I think that is a perfectly acceptable answer. The only one who has mentioned this as a possibility is michaelrack.

I'm not trying to insult anyone in saying this. I think this is a challenge to people, asking them to examine 'the way things are done', suggesting the way it's done (or the reasoning behind the way it's done) is wrong.

 

[nitemagi]

Your responses imply that this is a one in a million situation requiring case by case evaluation by risk management/hospital attorneys. Previous posters have said that this is actually a very common issue, "it's consult 101". If this is a common patient situation, then I have to imagine a procedure would be in place to handle it, based on past risk management consults for example. What I mean is that if it is common, doctors would not be consulting risk management on every case, rather a precedent would have been set at some point. So far the only real answers I've seen to legally handle this situation are that a psych hold can be used (which some posters think is inappropriate), or patients are detained against their will for "medical" reasons or "awaiting guardianship" because this is preferred to letting the patient go when that would be unsafe, even though there is no legal basis for the patient's confinement. Some posters have said that patient's are held awaiting guardianship, and it's assumed this is legal because this is what has always been done; which I think is rationally incorrect. You cannot assume something is correct just because it's always been done that way.

You're clearly not satisfied with the answers anyone is going to provide, particularly without providing you with the specific statute for your locality. So maybe you should just consult a lawyer.

 

[nitemagi]

AND a quick internet search can lead you to these articles and texts:

http://focus.psychiatryonline.org/data/Journals/FOCUS/2698/foc00407000438.pdf
(above is also in pubmed at http://www.ncbi.nlm.nih.gov/pubmed/16959935 )

http://med.fsu.edu/userFiles/file/innovativecollaboration_legalissues.pdf
http://www.amazon.com/Assessing-Competence-Consent-Treatment-Professionals/dp/0195103726

 

[heyjack70]

You're clearly not satisfied with the answers anyone is going to provide, particularly without providing you with the specific statute for your locality. So maybe you should just consult a lawyer.

I don't think specific statutes matter here, really. This patient is hypothetical. I'm not asking for people to manage a patient where I live. No one has even been able to provide me with the laws where they are working. Thanks for the articles; they highlight that my question is not new, unique, nor easily answerable (which makes me wonder why some comments seem quite dismissive and rude as if my question was simple). Again, I appreciate the article links.

 

[billypilgrim37]

The significance of this thread, I think, is that the doctors posting here are handling this situation without adequate knowledge of the applicable laws; or without adequate knowledge of the laws and a rational explanation for why they do not follow the laws because it is in the interest of patient safety.

I think where it even gets tougher is that not all things that are "legal" are codified in laws, either explicitly or in even in case law (and when it is, case law can wildly contradict). Sorta like with malpractice cases, you are judged against a "standard of care," though that is not defined legally with any sort of specificity. And I think what I've been arguing is that our behavior in these cases fall under "standard of care." Strangely enough, "because that's the way everybody does it" is actually a significant portion of what "standard of care" includes (in addition to, of course, published research and published guidelines).

My law student wife has beaten it into me that laws are not clear and always leave room for interpretation and manipulation in a court.

I think Kugel may be slightly overestimating the ability of the lawyers that work in this area to produce a legally "correct" answer based on expertise (not because they aren't smart or experienced, but because you can only get so good at reading the entrails of dead animals). They may be able to produce the best answer for your locale, but that best answer is going to be based on the interest of your employer as much as it is any sort of "right" legal answer. For example, I could imagine a hospital falling on the side of keeping people in the hospital against their will because a "wrongful imprisonment" case is very difficult for a plaintiff to win and a malpractice suit after a person without capacity is discharged home and hurts themselves would be a slam dunk for any malpractice attorney (not because either is more correct or more legal, but because civil procedures are complicated). Also, the headline "SDN Hospital holds man with dementia against his will" might be less damaging than "SDN Hospital negligent in death of man with dementia," and large tax-exempt medical systems don't like any more public scrutiny than they already have to deal with.

 

[billypilgrim37]

which makes me wonder why some comments seem quite dismissive and rude as if my question was simple.

Just want to make sure you know that despite my arguing fervently for a position, I definitely never meant to be dismissive or rude if I was one on that list. It's clear some of us have had to deal with this issue quite frequently, while others haven't, and I find that a little fascinating in itself.

 

[whopper]

I still don't understand what gives doctors the legal authority to force someone who has no urgent medical problems to stay in the hospital for months on end while guardianship is pursued.

What if the guardianship application fails? Is the MD who kept the patient against their will for months liable for false imprisonment charges

I don't know how much of this has been answered by others if at all because I haven't read every post in this thread.

What gives doctors this authority? The law does. It's written into civil law cases that in these situations, a doctor is to keep the patient in the hospital if capacity is under question and that capacity concerns the person's safety to themself or others.

In most states, if a patient is held against their will, they must have a hearing within 72 hours business hours of admission or exactly starting when the patient was held against their will If it's held for months, then it's the court's fault, not the doctor. In that case, the patient could try to sue the court...but guess what? You can't do that. If you don't like what the court did, you could appeal a case, you could also prevent the judge from holding the seat in the future, but not much else.

If it fails? The patient simply goes free. That's it. The person could sue for malpractice, but if the doctor did the procedure appropriately, the doctor will most likely not lose the case, though dealing with malpractice is usually a pain in the butt. In these situations, the hospital will usually handle the case for the doctor. The plaintiff lawyer could argue for any losses for the patient's being held against his/her will but they could only argue for what's entitled given a 72 hour hold. Any hold longer than that, it's the court's fault, and the damages have to be directly tied to the hold, and there has to be proof that what the doctor did followed the guidelines of malpractice.

My law student wife has beaten it into me that laws are not clear and always leave room for interpretation and manipulation in a court.

Yes and no. The laws in most states regarding involuntary commitment are pretty clear. There is room for interpretation and manipulation, but most judges and lawyers in this regard know what's acceptable and what's not. Just like you as a doctor have seen a particular pathology 1000x, so too have they seen involuntary commitment. Of course there's a chance that your case could be the first ever of it's type and you're on shaky ground for that reason, but this type of situation hardly ever happens. If it does, simply get a second opinion and ask the hospital lawyer to make sure you're doing the right thing.

And if you're not sure even then, even tell the court this but tell them you were trying to do the right thing to the best of your ability, demonstrate how, and most of the time that provides you with a good defense.

The law for most doctors is a "fear of the unknown" thing and they make it out to be bigger than it really is....kinda like the day I was a PGY I and gave the maximum dosage of a med and I was freaking out..when it was really no big deal. The problem is the only way to defuse this stress is to actually learn about it and that can take years.

 

[kugel]

No one has even been able to provide me with the laws where they are working.

My apologies.
I didn't realize you wanted them.

California 72-hr Psych Hold: "5150"

Legal and Civil Rights of Persons Involuntarily Detained

Conservatorship of Persons Gravely Disabled due to a Mental Disorder

Here in CA, the California Hospital Association puts out a manual of Mental Health Law every 1-2 yrs and it does a pretty good job of compiling all the info and providing some guidance for those unfamiliar with it. An organization in your state may do something similar.

 

[whopper]

Although most states have their own individual laws, most of them are about the same though worded differently.

Yes, the devil is in the details, but in virtually all states, a 72-hour hold is the norm. What usually happens in psychiatry and the law is one state creates a new law or precedent in the courts, and the rest of the states follow like a stack of dominoes.

In medschool, the few laws that are taught and put in the USMLE are the ones that tended to go into all states.

Your residency program should be informing you of these issues. However, if your program was like mine (not my forensic program of course, the general one), they are likely filled with attendings that don't know much about this area. I remember attendings telling me the wrong information that was corrected in fellowship. Something real real sad was in residency, I found the legislation regarding mental health online, read it, and knew more than most of my attendings about it, told them about it, and no one seemed to give a damn. They simply just wanted to live in the mental box of their day-to-day practice.