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Q&A: Patients, Families & the Legal System

This Month’s Expert Patients, Families, and the Legal SystemTCPR: Dr. Hanson, in your career as a forensic psychiatrist, you’ve become expert in the options the legal system offers to help psychiatric patients and their families. What can family members do if they feel that their loved one is a danger to him- or herself or to others, in the absence of a clear threat of violence?

Dr. Hanson: If the patient allows it, open communication between the care provider and the family is key. Often, the family and friends of patients know them extremely well and, over time, will have been through several cycles of hospitalization. The family can be a strong support system for identifying signs of potentially violent behavior, which may be different from patient to patient. In the absence of a clear threat, the family may give you a sense of how long it will take for the patient to get to the point where they really will be dangerous. In the meantime, I would talk to the patient about the family’s concerns and discuss interventions: increasing the frequency of appointments, changing medications, increasing doses of medications, or even talking to the patient about a proactive hospitalization if he or she is willing to consider a voluntary admission. Depending on what services you have in the area, it might be possible to have a mobile treatment team involved in the patient’s care to do in-home assessments and monitoring, and also to make sure the family knows about emergency evaluation procedures.

TCPR: Please tell us more about mobile treatment teams and emergency evaluations. How can we and our patients’ families find out about those in our communities?

Dr. Hanson: The best way to do this is through professional organizations. If you are a psychiatrist in a small town or in an independent practice with few colleagues around it can be very useful to be a member of your district branch of the American Psychiatric Association. Here you can find information about your state’s emergency evaluation and emergency or involuntary admission laws. There are different types of mobile treatment teams and emergency evaluations, so it depends on your region as to what services are available. Some private hospitals provide mobile treatment teams or outreach services both for mentally ill patients and for adults with cognitive problems.

TCPR: Does ability to pay affect access to any of these services?

Dr. Hanson: Yes, unfortunately. The ability to pay for treatment can be a significant factor. This is frequently a problem for forensic patients released from jail or prison or those who don’t have a strong support system. However, hospitals are obligated to provide treatment regardless of the patient’s ability to pay in emergency situations.

TCPR: What support can we offer family members of patients who feel that their loved ones are at risk of violent behavior?

Dr. Hanson: Support networks for families are very important; putting them in touch with other families of mentally ill patients, for example through the National Alliance on Mental Illness, can be a source of information and support. We need to make sure that they have education about access to emergency services and crisis intervention services, as well. Another great resource for families of at-risk patients is to work closely with the local police department’s crisis intervention team.

TCPR: Tell us more about these teams.

Dr. Hanson: Some police departments have one or more individuals who have received specialty training in mental illness. It’s good to be proactive about this, to get them acquainted with the patient in question so that when they respond they have some background about the individual. If an emergency evaluation is necessary, this may minimize the stress of a potential confrontation. Outcome studies of crisis intervention teams have shown that they increase the rate of compliance (Compton MT et al, J Am Acad Psychiatry Law 2008;36(1):47–55) and decrease the likelihood of a violent outcome in the case of an emergency evaluation (Bower D & Pettit G, FBI Law Enforcement Bulletin 2001;70(2):1–6).

TCPR: Are there any HIPAA concerns?

Dr. Hanson: Families can access crisis intervention teams independently from the clinician, so there really wouldn’t be a HIPAA issue. It’s simply an idea a psychiatrist could suggest to concerned family members.

TCPR: Is there anything else we can do to help families, especially those of patients who are resistant to treatment?

Dr. Hanson: A very useful tool is the psychiatric advanced directive. This is basically a legal document that is similar to a durable power of attorney, but designed specifically for psychiatric treatment. In states where this is allowed, patients—when they are well and competent—can expressly state ahead of time which kind of treatments they would prefer. This avoids potential future conflict by facilitating the discussion among the patient, family, and physician about what kind of treatments or even hospital settings the patient would agree to if they become sick again. The Bazelon Center (www.bazelon.org), a nonprofit organization that promotes the use of psychiatric advanced directives, has sample forms you can download (find them at http://bit.ly/XQMRF5). There are state-by-state differences in what these advanced directives allow for and the extent of treatment they provide for. (You can research your state’s laws through the National Resource Center on Psychiatric Advance Directives at www.nrcpad.org.)

TCPR: Some states allow assisted outpatient treatment. What is the principle behind it, how is it best employed, and which patients are most appropriate for it?

Dr. Hanson: Assisted outpatient treatment relates to patient treatment as a form of outpatient supervision—something akin to a conditional release from a hospital. Not every state has a system for outpatient treatment, but 44 states do. Typically, this involves a seriously mentally ill patient who is historically noncompliant with treatment and who may represent a danger to public safety if noncompliant and ill. Although programs differ from state to state, basically an initial petition is filed with the court requesting an outpatient treatment order. This generally requires a history of noncompliance, a certain number of previous admissions, some indication of dangerousness, and the lack of a less restrictive alternative. Then, following a hearing, if an outpatient commitment order is granted, the patient may be detained at a hospital for up to 72 hours if there is an indication that the patient is noncompliant with treatment and may require involuntary admission.

TCPR: If a patient requires treatment because of noncompliance, who arranges for that: the practitioner or law enforcement?

Dr. Hanson: The outpatient commitment order is signed initially by a judge, and then if a patient becomes noncompliant the clinician can contact the police and ask them to transport the patient to the hospital without further court order or intervention.

TCPR: You described this as appropriate for patients with severe mental illness who may represent a threat to public safety. Who determines who is a threat to public safety?

Dr. Hanson: This gets to the general issue of dangerousness. The law gets really tricky because you may have a statutory definition of “dangerousness,” as well as case law that interprets what dangerousness means. For example, here in Maryland, for civil commitment dangerousness requires danger to person—either oneself or someone else; but for criminal commitment the definition is much broader and includes dangerousness to property. When it comes to civil commitment, some states have a grave disability standard. This means the patient is not doing anything overtly dangerous, but through neglect or inability to provide basic self-care, his or her condition could deteriorate rapidly.

TCPR: Can you specify what counts as grave disability for legal purposes?

Dr. Hanson: Grave disability is when someone—either through negative symptoms, loss of executive function, apathy, cognitive impairment, or intellectual disability—has difficulty accessing basic needs such as food, appropriate shelter, clothing or compliance with treatment for medical conditions. It could also include someone who puts himself into dangerous situations because of a lack of insight. This is someone who is not overtly and directly injuring himself, but through poor organizational skills could be at risk.

TCPR: Can you define guardianship and conservatorship and describe a situation in which these might be appropriate for a patient?

Dr. Hanson: Guardianship is a very broad term. It refers to a court-appointed person who is responsible for making decisions on behalf of someone else. You can have a guardianship for a person or a guardianship for making property decisions. The term conservatorship is sometimes used interchangeably, but is really not the same thing. Conservatorship usually refers to someone who makes financial decisions on behalf of another person. In psychiatry, you will most often see guardianship established in geriatric patients; when someone is developing a dementia they may require guardianship to make decisions about housing and financial matters. For nongeriatric patients, you can have guardianship for medical decision making, say if you have a patient with a mental illness who also has physical problems. Again, there are state-by-state differences on what guardianship allows. For example, here in Maryland, guardianship of a psychiatric patient allows the guardian to make decisions on things like consent for ECT for someone who is hospitalized, but does not provide for signing consent for the admission itself.

TCPR: Who can be a guardian or a conservator?

Dr. Hanson: If there is someone available, it will usually be a family member. The order of preference would be a spouse, an adult child if there is one, or a parent. The family can also designate a family friend or another involved party. But if there is no willing relative available, then the guardian can be a public agency.

TCPR: What is the process whereby guardianship or conservatorship is established?

Dr. Hanson: It can be done privately through a request by family, or it could be triggered by the treatment team if the person is in the hospital. It generally requires some type of affidavit or certificate by a psychiatrist or licensed physician that the patient is unable to provide for his or her own personal or property needs. Some states require affidavits from two physicians. Once signed, this goes before a court, and the court determines whether or not this person requires a guardian. Generally speaking, the order of preference, if possible and if time allows, is to use a power of attorney rather than a guardianship. If the patient is competent presently, but may lose competency in the future, it is best to have a power of attorney because that can be generated by the individual. Here in Maryland it can take up to 90 days to get a guardian appointed. So it is really better to have power of attorney established in advance. [A power of attorney is a legal document granting someone authority to act in legal or financial matters for another.]

TCPR: Can you explain what a mental health court is and how it works?

Dr. Hanson: A mental health court is a form of a specialty court; I call it a “continuity of care” court. It takes misdemeanor nonviolent offenders and places them into community supervision. The idea behind a mental health court is to be a nonadversarial system. Both the public defender and the state’s attorney come together in front of the judge with the shared goal of intervening with the offender for the purpose of rehabilitation rather than punishment. Typically when defendants are identified as being eligible for mental health court, they are required to sign a contract to agree to comply with community treatment. They are then released either prior to a verdict (eg, in pretrial diversion) or as a condition of probation. They return to the community and then periodically the court will hold a status conference in which the state’s attorney, the public defender, and the community treatment representative will report on their progress. Mental health courts do work, but they are fairly restrictive. They don’t take violent offenders, and defendants can drop out of a mental health court, but for those who chose to stay in and who comply, the outcomes are quite good (see for example, Moore ME & Hiday VA, Law Hum Behav 2006 Dec;30(6):659–674). These are based on a federal initiative and are becoming more widely used.

TCPR: If defendants drop out of a program, are they then subject to criminal charges?

Dr. Hanson: It depends upon how the mental health court is set up. Dropping out of mental health court could be considered a violation of probation, in which case they would be returned to jail.

TCPR: Thank you, Dr. Hanson.

Q&A: Patients, Families & the Legal System

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This article was published in print 3/2013 in Volume:Issue 11:3.


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APA Reference
Hanson,, A. (2014). Q&A: Patients, Families & the Legal System. Psych Central. Retrieved on November 11, 2018, from https://pro.psychcentral.com/this-months-expert-patients-families-and-the-legal-system/

 

Scientifically Reviewed
Last updated: 2 Jul 2014
Last reviewed: By John M. Grohol, Psy.D. on 2 Jul 2014
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