Involuntary Commitment: What Is the Process?

Involuntary Commitment: What is the Process?

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Linkedln: www.linkedin.com/company/lawpracticecle Twitter: www.twitter.com/LawPracticeCLE INVOLUNTARY COMMITMENT – I’VE HEARD THE TERM, BUT WHAT IS THE PROCESS?

Rachel V. Rose, JD, MBA July 2020 Disclaimer

THE INFORMATION PRESENTED IS NOT MEANT TO CONSTITUTE LEGAL ADVICE. CONSULT YOUR ATTORNEY FOR ADVICE ON A SPECIFIC SITUATION.

◦ Fundamentally, involuntary commitment can be thought of as a process that can be initiated when a person poses a risk or danger to themselves or to others. ◦ Typically, in the United States in particular, patient autonomy and decision making are cornerstones of our medical system. ◦ One can think of involuntary commitment as an exception to these general rules. The process that follows is complex and the laws vary by state (and different countries).

◦ What the definitions of involuntary commitment are in different states and countries; ◦ Who can be involuntarily committed and what criteria must be met; ◦ What is the legal process after the initial commitment; and ◦ How do HIPAA and other advanced directives come into play?

◦ “Involuntary civil commitment is the admission of individuals against their will into a mental health unit. Generally speaking, there are three reasons why an individual would be subject to involuntary civil commitment under modern statutes: mental illness, developmental disability, and substance addiction. In the case of mental illness, dangerousness to self or others defines the typical commitment standard, with almost all states construing the inability to provide for one's basic needs as dangerousness to self. In terms of process, every state provides for a hearing, the right to counsel, and periodic judicial review, while most states have statutory quality standards for treatment and hospitalization environment.”

◦ Three forms of involuntary treatment are authorized by civil commitment laws in 46 states and the District of Columbia. ◦ Two forms are available in Connecticut, Maryland, Massachusetts and Tennessee, where court-ordered outpatient treatment has not yet been adopted. ◦ Three Forms of Involuntary Treatment ◦ Emergency hospitalization for evaluation is a crisis response in which a patient is admitted to a treatment facility for psychiatric evaluation, typically for a short period of fixed time (e.g., 72 hours). "Psychiatric hold" or "pick-up" and other terms may be used to describe the process. ◦ Inpatient civil commitment is a process in which a judge orders hospital treatment for a person who continues to meet the state’s civil commitment criteria after the emergency evaluation period. Inpatient commitment is practiced in all states, but the standards that qualify an individual for it vary from state to state. “Involuntary hospitalization” or another term may be used to describe the practice. ◦ Outpatient civil commitment or “assisted outpatient treatment (AOT)“ is a treatment option in which a judge orders a qualifying person with symptoms of mental illness to adhere to a mental health treatment plan while living in the community. AOT laws have been passed in 46 states, but the standards for its use vary from state to state. “Outpatient commitment,” “involuntary outpatient commitment,” “mandated outpatient treatment” and other terms may be used to describe the practice.

Tarasoff v. Regents of Univ. of Cal., 551 P.2d 334 (Cal. 1976)

◦ National Alliance on Mental Illness ◦ (9.1.2) With adequate professional consultation, every person with a serious mental illness who has the capacity and competence to do so should be entitled to manage his or her own treatment. When an individual lacks capacity and competence because of his or her serious mental illness, however, the substitute judgment of others--subject to sufficient safeguards with frequent review--may be justified in determining treatment and possible hospitalization. ◦ (9.2.4) Methods for facilitating communications about treatment preferences among individuals with serious mental illnesses, family members, and treatment providers should be adopted and promoted in all states. (9.2.5) Involuntary commitment and court-ordered treatment decisions must be made expeditiously and simultaneously in a single hearing so that individuals can receive treatment in a timely manner. The role of courts should be limited to review to ensure that procedures used in making these determinations comply with individual rights and due-process requirements. The role of the court does not include making medical decisions. (9.2.6) Involuntary inpatient and outpatient commitment and court-ordered treatment should be used as a last resort and only when it is believed to be in the best interests of the individual.

◦ Landmark decision made by the California Supreme Court. ◦ Established the duty of medical professionals who know a patient is dangerous to prevent that person from harming third parties. ◦ Facts ◦ In Tarasoff, [Tarasoff v. Regents of Univ. of Cal., 551 P.2d 334 (Cal. 1976)] a patient told his psychologist that he planned to kill his girlfriend, Tatiana Tarasoff. ◦ The psychologist, who was a counselor at the University of California, believed the patient and notified the campus police. ◦ The campus police detained the patient, but let him go without a formal psychiatric evaluation. ◦ The psychologist was notified and did nothing further to stop the patient, who then killed Tarasoff. ◦ Tarasoff’s family sued, and the court found that there was a duty to try and stop such a patient, including, under some circumstances, a duty to warn the intended victim.

◦ The Tarasoff I and Tarasoff II cases were decided by the California Supreme Court in 1974 and 1976, respectively. ◦ Tarasoff I set forth a “duty to warn” on the part of psychotherapists. ◦ Upon rehearing in Tarasoff II, the decision was upheld but modified. The court ruled that when a therapist determines, or should have determined, that a patient presents a serious danger of violence to another, the therapist has a “duty to protect” that other person.

◦ The information is of limited value to the victim because in most big cities such a threat will not trigger police protection. ◦ The better result in Tarasoff would have been for the psychologist to have initiated the proper proceeding for an involuntary civil commitment, as specified in the state’s mental health code, rather than just calling the campus police. ◦ This would have been especially important after he learned that the campus police had released the patient. ◦ The advantage of properly invoking the mental health commitment procedures is that it does not violate the patient’s confidence by involving the potential victim. ◦ Had the patient been properly evaluated by a forensic psychologist or psychiatrist before being released, it is very unlikely that the courts would have found a further duty to warn the intended victim.

◦ Answer: it depends upon the state. ◦ Most states allow for emergency hospitalization for evaluation and inpatient civil commitment. ◦ Outpatient civil commitment is not permissible in some states. ◦ Different states have different processes. ◦ Various state laws and processes will be detailed in the next section.

“Involuntary commitment is the use of legal means to commit a person to a mental hospital or psychiatric ward against their will or over their protests.”

◦It is important to note that even though a “warrant” will be issued, the involuntary commitment process is civil in nature and not criminal.

Copyright 2018- Rachel V. Rose - Attorney at Law, PLLC. Guardianship v. Involuntary Commitment ◦ Guardianship is the use of legal means to grant another person or entity full or limited authority over an incapacitated person (ward) to promote and protect the well-being of the ward. The guardian is NOT allowed to commit the ward to a mental hospital, insane asylum or psychiatric ward. ◦ Involuntary commitment is the use of legal means to commit a person to a mental hospital or psychiatric ward against their will or over their protests. Involuntary commitments are used only to assist the mentally ill with getting necessary medical treatment for their mental illness.

◦ Depression, apathy, sleeping pattern changes ◦ Anxiety, fear, withdrawal ◦ Inappropriate emotion responses to people or events ◦ Feelings of losing control ◦ Addiction to chemicals, people or events ◦ Thinking or talking about suicide ◦ Delusions, hallucinations ◦ Violence ◦ Illegal substance abuse and alcoholism

◦ I have seen the initial process begun in one of two ways: ◦ A family member calls the police and indicates that the person is a harm to themselves or to others and the person needs to be involuntarily committed. ◦ A Mental Health Warrant is issued after a person contacts the local county clerk’s office or justice of the peace. ◦ In Texas, most counties have a specific office. ◦ Example: Harris County - Mental Health Division of the Harris County Clerk’s Office, located at 2800 South Mac Gregor Way at Highway 288, near the Texas Medical Center and Hermann Park.

◦ In order to approve the application, the magistrate must find that there is reasonable cause to believe that the person you are trying to commit evidences mental illness or evidences a substantial risk of serious harm to himself or others. ◦ Intervention by the Court is necessary because the risk of harm will be imminent unless the person is immediately restrained, and the necessary restraint cannot be accomplished without emergency detention. ◦ If the application for a warrant is approved, then a warrant is issued and the local sheriff or constable’s office will locate and detain the individual. ◦ The sheriff or constable will then transport the individual to a local mental health facility.

◦ A physician has to provide a medical certificate within 24 hours of the patient’s admission. ◦ This certificate enables the court to establish whether or not it is necessary to issue an order of protective custody (OPC). ◦ The OPC is an order issued by a Probate Court after an Application for Court Ordered Mental Health Services has been filed. ◦ At least one Physician's Certificate must be on file with the Court if an OPC is to be issued. ◦ The Physician’s Certificate must demonstrate sufficient facts for the Court to believe that the proposed patient is mentally ill and, as a result of the mental illness, is substantially likely to cause serious harm to self or others. ◦ IF AN OPC is ISSUED, a probable cause hearing MUST be held within 72 hours. At this hearing the judge decides whether the patient will be held at a mental health facility or released on his own, while he awaits the mental health hearing.

◦ The Mental Health hearing must take place within two weeks of the patient’s detention. ◦ At this hearing, the court may listen to testimony from the applicant for the warrant, medical experts, and the patient themselves. ◦ The court may decide to dismiss the case, issue a court order for outpatient treatment, or order inpatient hospitalization. ◦ Prior to this hearing, two Physician Certificates are required to be on file; one of these must be by a psychiatrist. ◦ The hearings are generally held at the hospital at which the patient is detained if they were not released following the OPC.

◦ ... (b) The application for detention must contain: ◦ (1) a statement that the guardian [or applicant] has reason to believe and does believe that the ward evidences mental illness; (2) a statement that the guardian [or applicant] has reason to believe and does believe that the ward evidences a substantial risk of serious harm to the ward or others; ◦ (3) a specific description of the risk of harm; (4) a statement that the guardian [or applicant] has reason to believe and does believe that the risk of harm is imminent unless the ward is immediately restrained; ◦ (5) a statement that the guardian’s [or applicant’s] beliefs are derived from specific recent behavior, overt acts, attempts, or threats that were observed by the guardian [or applicant]; and (6) a detailed description of the specific behavior, acts, attempts, or threats.

◦ When the police arrive to the emergency scene, they will ask themselves whether the person is over 18, and whether they pose a substantial risk of imminent harm to themselves or others? ◦ If the answer is “YES,” peace officers have the authority to take an individual into custody and immediately transport them to a mental health facility for observation. ◦ This can occur even if the individual does not want to go voluntarily. ◦ Once the officer transports the individual to a mental health facility the involuntary commitment process discussed above begins.

◦ “Baker Act” the initiation of an involuntary exam, what that means and what rights are accorded to a person is often not known and understood.

◦ Answer: An adult may be held up to 72 hours for an involuntary examination. However the examination period for a minor, anyone 17 or younger, is 12 hours. Specifically the examination “shall be initiated within 12 hours after the patient’s arrival at the facility.” ◦ If the examination period for an adult or a minor ends on a weekend or a holiday than no later than the next working day one of the following actions must be taken: ◦ The patient shall be released, unless he or she is charged with a crime, in which case the patient shall be returned to the custody of a law enforcement officer; ◦ The patient shall be released for voluntary outpatient treatment; ◦ The patient, unless he or she is charged with a crime, shall be asked to give express and informed consent to placement as a voluntary patient and, if such consent is given, the patient shall be admitted as a voluntary patient; or ◦ A petition for involuntary services shall be filed in the circuit court if inpatient treatment is deemed necessary. This is the start of a possible involuntary psychiatric commitment.

◦ Answer: Florida Statute 394.459 Rights of patients, Section (2) RIGHT TO TREATMENT, Subsection (c) states: ◦ “(c) Each person who remains at a receiving or treatment facility for more than 12 hours shall be given a physical examination by a health practitioner authorized by law to give such examinations, within 24 hours after arrival at such facility.” ◦ It is important to understand that according to the Florida Administrative Code 65E-5.160 Right to Treatment that this examination must included a determination that abnormalities of thought, mood or behavior due to non-psychiatric causes have been ruled out. ◦ “(3) The physical examination required to be provided to each person who remains at a receiving or treatment facility for more than 12 hours must include: ◦ (a) A determination of whether the person is medically stable; and ◦ (b) A determination that abnormalities of thought, mood, or behavior due to non-psychiatric causes have been ruled out.”

Copyright 2018- Rachel V. Rose - Attorney at Law, PLLC. Question: Does a patient have a right to say what treatment they do or do not want to receive? ◦ Answer: Florida Statute 394.459, Rights of patients, Section (2) RIGHT TO TREATMENT, Subsection (e) states: ◦ “(e) Not more than 5 days after admission to a facility, each patient shall have and receive an individualized treatment plan in writing which the patient has had an opportunity to assist in preparing and to review prior to its implementation. The plan shall include a space for the patient’s comments.” ◦ Wishes may be designated ahead of time by utilizing a Mental Health Advance Directive. This form can be downloaded from the Department of Children and Families at this link – Mental Health Advance Directive.

Copyright 2018- Rachel V. Rose - Attorney at Law, PLLC. Question: What is Express and Informed Consent? ◦ Answer: Florida Statute 394.459, Rights of patients, Section (3), RIGHT TO EXPRESS AND INFORMED PATIENT CONSENT, Subsection (a)2. states: ◦ “2. Before giving express and informed consent, the following information shall be provided and explained in plain language to the patient, or to the patient’s guardian if the patient is 18 years of age or older and has been adjudicated incapacitated, or to the patient’s guardian advocate if the patient has been found to be incompetent to consent to treatment, or to both the patient and the guardian if the patient is a minor: the reason for admission or treatment; the proposed treatment; the purpose of the treatment to be provided; the common risks, benefits, and side effects thereof; the specific dosage range for the medication, when applicable; alternative treatment modalities; the approximate length of care; the potential effects of stopping treatment; how treatment will be monitored; and that any consent given for treatment may be revoked orally or in writing before or during the treatment period by the patient or by a person who is legally authorized to make health care decisions on behalf of the patient.”

Copyright 2018- Rachel V. Rose - Attorney at Law, PLLC. Question: Does a parent/guardian have the right to express and informed consent to treatment if a patient is a minor? ◦ Answer: Yes. ◦ Florida Statute 394.459, Rights of patients, Section (3), RIGHT TO EXPRESS AND INFORMED PATIENT CONSENT, Subsection (a)1. states: ◦ “(a)1. Each patient entering treatment shall be asked to give express and informed consent for admission or treatment. If the patient has been adjudicated incapacitated or found to be incompetent to consent to treatment, express and informed consent to treatment shall be sought instead from the patient’s guardian or guardian advocate. If the patient is a minor, express and informed consent for admission or treatment shall also be requested from the patient’s guardian. Express and informed consent for admission or treatment of a patient under 18 years of age shall be required from the patient’s guardian, unless the minor is seeking outpatient crisis intervention services under s. 394.4784. Express and informed consent for admission or treatment given by a patient who is under 18 years of age shall not be a condition of admission when the patient’s guardian gives express and informed consent for the patient’s admission pursuant to s. 394.463 or s. 394.467.”

Copyright 2018- Rachel V. Rose - Attorney at Law, PLLC. Question: Does a patient have the right to communicate to their attorney, family and/or report alleged abuse? ◦ Answer: Yes, but there are restrictions. ◦ The law covering this is Florida Statute 394.459, Rights of patients, Section (5) COMMUNICATION, ABUSE REPORTING, AND VISITS, Subsections (c), (d) and (e) ◦ Each facility must permit immediate access to any patient, subject to the patient’s right to deny or withdraw consent at any time, by the patient’s family members, guardian, guardian advocate, representative, Florida statewide or local advocacy council, or attorney, unless such access would be detrimental to the patient. ◦ “If a patient’s right to communicate or to receive visitors is restricted by the facility, written notice of such restriction and the reasons for the restriction shall be served on the patient, the patient’s attorney, and the patient’s guardian, guardian advocate, or representative; and such restriction shall be recorded on the patient’s clinical record with the reasons therefor. The restriction of a patient’s right to communicate or to receive visitors shall be reviewed at least every 7 days. The right to communicate or receive visitors shall not be restricted as a means of punishment.”

◦ Answer: Florida Statute 394.463, Involuntary examination, states: ◦ (1) CRITERIA.—A person may be taken to a receiving facility for involuntary examination if there is reason to believe that the person has a mental illness and because of his or her mental illness: ◦ (a)1. The person has refused voluntary examination after conscientious explanation and disclosure of the purpose of the examination; or ◦ 2. The person is unable to determine for himself or herself whether examination is necessary; and ◦ (b)1. Without care or treatment, the person is likely to suffer from neglect or refuse to care for himself or herself; such neglect or refusal poses a real and present threat of substantial harm to his or her well-being; and it is not apparent that such harm may be avoided through the help of willing family members or friends or the provision of other services; or ◦ 2. There is a substantial likelihood that without care or treatment the person will cause serious bodily harm to himself or herself or others in the near future, as evidenced by recent behavior.

◦ General Rule (45 CFR 164.510(b)) ◦ The Health Insurance Portability and Accountability Act (HIPAA) governs the disclosure of all protected health information, including a patient’s HIV status. ◦ Under HIPAA, protected health information is confidential and may not be disclosed to outside parties unless a specific exception permits such disclosure. ◦ The HIPAA Privacy Rule specifically permits covered entities, such as health care providers and health care institutions, to share information with those people the patient has identified in writing when that information is necessary for the patient’s medical care or for payment of health care services.

◦ if the patient lacks decision-making capacity, a covered entity may still disclose the information necessary for medical care or for payment of medical services to the patient’s surrogate decision maker, even if the patient has not explicitly identified that person. ◦ HIPAA requires the covered entity to use professional judgment and act in the patient’s best interest in deciding whether to disclose information to the surrogate decision maker and what should be disclosed. ◦ Acting in the patient’s best interest requires the physician to protect both the patient’s decisional rights and his nondecisional rights. ◦ Decisional rights are usually protected through the informed consent process. ◦ Nondecisional rights include protection from harm, the safeguarding of privacy and confidentiality, and the right to be treated with respect.

◦ SAMHSA issued a final rule on January 2nd, which builds upon the major January 2017 Part two update (83 Fed. Reg. 239 (Jan. 2, 2018)) ◦ Prior to these revisions, the regulations had not been changed since its inception in 1975. ◦ Reiterated that the January 18, 2017 SAMHSA Final Rule provided for greater flexibility within the healthcare system of disclosing patient identifying information while balancing the need to protect the heightened, sensitive nature of substance abuse records. ◦ Alignment with HIPAA and the HITECH Act is being explored. Finalized clarifications as proposed in §2.33(b) except for the list of 17 specific types of payment and healthcare operation activities that a covered entity, business associate or legal representative would be allowed to further disclosed utilizing the minimum necessary standard. ◦ “In response to comments received that the abbreviated notice did not provide an adequate warning against potential misuse of patient identifying information, SAMHSA, in this final rule, has modified the language in the abbreviated notice to more explicitly notify recipients that improper use or disclosure is prohibited under 42 CFR part.”

◦ Involuntary commitment standards and processes vary by state. ◦ Family members may encounter obstacles to accessing a patient’s status. ◦ HIPAA and the SAMHSA rules promote the public policy argument that the patient should not be made more vulnerable; however, in most instances, getting limited information (minimum necessary) is permissible, especially if the patient lacks decision making capacity. ◦ Be sure to have a copy of an advanced directive available, such as a durable medical power of attorney or a Declaration for Mental Health Treatment. ◦ Consult an attorney for assistance.

Rachel V. Rose – Attorney at Law, PLLC (713) 907-7442 [email protected] www.rvrose.com

◦ http://www.treatmentadvocacycenter.org/component/content/article/183-in-a-crisis/1596-know-the- laws-in-your-state ◦ https://mentalillnesspolicy.org/ivc/involuntary-commitment-concepts.html ◦ Ralph Reisner, Christopher Slobogin, and Arti Rai, Law and the Mental Health System: Civil and Criminal Aspects(2009), pp. 704-705. ◦ https://www.nami.org/About-NAMI/Policy-Platform/9-Legal-Issues ◦ https://biotech.law.lsu.edu/map/DangerousnessDuetoMentalIllness.html ◦ https://www.tandfonline.com/doi/abs/10.1300/J146v11n01_12 ◦ http://www.physicianspractice.com/law-malpractice/samsha-final-rule-what-docs-need-know ◦ https://hhs.texas.gov/laws-regulations/forms/advance-directives ◦ https://www.texasbar.com/AM/Template.cfm?Section=Free_Legal_Information2&Template=/CM/Conte ntDisplay.cfm&ContentID=30801 ◦ http://www.cchrflorida.org/question-and-answers-about-the-florida-involuntary-commitment-law-the- baker-act/