Involuntary Medical Hold: The Next Step in Mental Health Parity?

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“John,” a 30-year-old male, comes to an inpatient psychiatric unit. He has a good job, a large network of friends, a wife, 2 kids, as well as a first episode of psychosis. It may not be the most common scenario, but it certainly can exist. Several weeks ago, he started becoming obsessed with a fixed, false belief that a storeowner in his town was running a cult, where children were being harmed. His wife, family, and friends become increasingly distressed and bring him to the hospital. At this point, he has ceased to care for his needs and has mentioned a plan to harm the storeowner because of his delusions.

He initially comes voluntarily, with some reluctance. After a few hours on the unit, he decides that it is not for him. He asks to leave. What do you do? You do what thousands of psychiatrists do on a regular basis: you place him on an involuntary psychiatric hold. How? A constitutionally protected process is initiated to make sure that John’s rights are protected. In California, we complete a “5150” and if the patient is kept involuntarily for more than 72 hours, there is a hearing with a court appointee and an advocate representing the patient.

Now consider an alternative scenario. A similar man, “David,” of similar age, and with a similar background comes to the hospital under similar conditions. Except this time, he is found while being medically cleared to have a large brain tumor and severe electrolyte imbalance. After being informed of this news, he states that his physicians are part of a conspiracy to harm him. He asks to leave. The medical team asks you to perform a capacity evaluation. What do you do? You do what thousands of psychiatrists do on a regular basis: you conclude that he does not have capacity to make appropriate decisions about his health care, including his desire to leave the hospital. How? You just write your note and a medical hold suddenly exists.

The difference is uncanny and striking. One process requires well-established forms, protocols, and even case law; the other one does not. Recently a case made us confront this difference.

Case Study

“Wendy,” a 62-year-old female with major neurocognitive disorder, presented to the hospital. She had a known history of more than 30 emergency department encounters in the last 12 months. She was previously admitted for injuries sustained in pedestrian-motor vehicle collisions. During prior encounters, she repeatedly declined long-term rehabilitation programs. On evaluation for this encounter, she again expressed a lack of interest in residential treatment.

A Montreal Cognitive Assessment was administered; she scored 15. A score under 26 indicates cognitive impairment. A CT scan of her head demonstrated significant pathology of her frontal lobe. An occupational therapy consultation conveyed that she lacked the ability to complete her basic and instrumental activities of daily living. She was able to articulate a superficial plan for self-care; however, her repeated behaviors indicated that she could not actualize these plans. She had been unable to obtain shelter despite having the financial means to secure housing.

We determined that she lacked capacity to independently care for herself due to a cognitive disorder. Cognitive disorders are not eligible for psychiatric conservatorship. We made an attempt to order care through a referral for a probate conservatorship. In court, the judge ordered that the patient be released from the hospital as she was not being held for what was considered to be a psychiatric disorder. The court stated that there was no other legal mechanism available to us to hold this patient.

Discussion

This experience has made us wonder if the nonpsychiatric medical world should learn about how psychiatry has dealt with this issue for many decades. After asking to be discharged for 15 years from a state hospital, Kenneth Donaldson filed a lawsuit stating that his rights had been denied. In their 1975 landmark decision in O'Connor v Donaldson, the Supreme Court found that a state cannot constitutionally confine a nondangerous individual who is capable of surviving safely by themselves or with the help of willing and responsible family members or friends.¹ This ruling is the basis of many of our involuntary commitment laws.

In 2019-2020, more than 133,000 individuals were discharged from California hospitals against medical advice, about 2.6% of all hospital discharges.² Consequences of leaving against medical advice can be lethal.³ The number of patients detained by a medical hold and the duration of their detainment is unknown.

The divide between mental health and medical disorders is exemplified by our treatment of cognitive disorders. In California, like in many locales, regulation codes require that cognitive disorders be considered medical and thus be excluded from reimbursement at psychiatric hospitals if not accompanied by psychosis or depression.⁴ This places hospital providers in a difficult position when considering adults who are unable to care for themselves due to a standalone cognitive diagnosis. Psychiatrists are justifiably hesitant to place such patients on an involuntary hold.⁵

The California Hospital Association has attempted to address such circumstances when patients with a nonpsychiatric diagnosis lack capacity by recommending consideration of a probate (rather than a psychiatric) conservatorship.⁶ However, there are no statutes requiring this process for hospitals and no facilities where we have worked have mechanisms for the routine use of this. Furthermore, the case example shows that attempts at using probate conservatorship can be dismissed by the courts.

At this time, in California, there is no mechanism for ensuring that patients who lack capacity to make medical decisions or care for themselves due to a nonpsychiatric etiology are afforded the same due process protections as patients with a psychiatric etiology. There is no state-mandated notification of rights denial (eg, involuntary detention) of a patient held for nonpsychiatric etiology. This is in contrast to the required advisement of patients detained for psychiatric etiology. Patients with a psychiatric etiology held involuntarily are given a hearing within 4 days. However, probate hearings are often held more than 30 days after a petition and some probate judges have simply “refused to hear” such types of petitions.⁷ This due process disparity creates obvious challenges for providers attempting to balance autonomy and beneficence in a resource-scarce environment.

California legislators could provide some hospitalized individuals with due process by enacting Welfare and Institutions Code 15705, a statute that permits counties to opt-in to emergently protecting endangered adults. The code allows for the placement of an endangered adult in emergent protective custody and requires a hearing be held within 48 hours to determine the appropriateness of taking away an individual’s right to self-determination. Yet only 1 county, Santa Clara, has enacted the statute despite its availability since 1996.

California is currently grappling with those concepts as evidenced by measures like SB43 that intend on expanding psychiatric conservatorship to individuals who are unable to care for their medical needs, rather than the more narrowly grave disability that focus on the more basic food, clothing, or shelter. Additionally, SB43, also expands psychiatric conservatorship to include substance use disorders. SB43 went into effect on January 1st, 2024.

We are not advocating that (nonpsychiatric) medicine require the exact same mechanism as psychiatry for involuntary treatment. We are also cognizant of the additional burden imposed on physicians should be commensurate with the rarity of such a scenario and the rarity of conflict between patients and their providers’ recommended treatment. However, our recent encounter has taught us that the status quo is untenable as it permits scenarios where patients are released due to the lack of available processes. We believe that some localities have used certain legal or administrative procedures to formalize and validate medical holds. Such procedures should be studied and considered for wider adoption.

The current system of extrajudicial medical holds does not protect the rights of those who lack capacity to care for themselves due a medical condition, like some cognitively impaired hospitalized patients. Addressing this problem comes to the heart of our social system, the value of a human life, particularly one who has lost the ability to recognize their vulnerability.

Dr Badre is a clinical and forensic psychiatrist in San Diego. He teaches medical education, psychopharmacology, ethics in psychiatry, and correctional care. Dr Meyer is the City of San Diego’s Behavioral Health Officer. His clinical interests include health care systems, care of patients with tri-morbidities and legislative advocacy. Dr Abrams is a psychiatry resident at the University of California, San Diego. He is interested in immigrant mental health, LGBTQ+ health equity, addiction, harm reduction, wellness promotion, trauma-informed care, and public sector psychiatry.

References

1. O'Connor v. Donaldson, 422 U.S. 563 (1975). Accessed April 25, 2024. https://supreme.justia.com/cases/federal/us/422/563/

2. Patient Discharge Data – Patients Leaving California Hospitals Against Medical Advice (AMA), 2019-2020. California Department of Health Care Access and Information. Accessed April 25, 2024. https://data.chhs.ca.gov/dataset/patients-leaving-california-hospitals-against-medical-advice-ama

3. Sisson P. State asks for documentation changes in wake of patient death at Paradise Valley Hospital. The San Diego Union Tribune. July 3, 2023. Accessed April 25, 2024. https://www.sandiegouniontribune.com/news/health/story/2023-07-03/widow-takes-exception-to-states-findings-in-hospitals-role-in-her-beloveds-death

4. Cal. Code Regs. Tit. 9, § 1820.205 - Medical Necessity Criteria for Reimbursement of Psychiatric Inpatient Hospital Services. Cornell Law School Accessed April 25, 2024. https://www.law.cornell.edu/regulations/california/9-CCR-1820.205

5. Heldt JP, Zito MF, Seroussi A, et al. A medical incapacity hold policy reduces inappropriate use of involuntary psychiatric holds while protecting patients from harm. Psychosomatics. 2019;60(1):37-46.

6. Mental Health Law Manual, 13th edition. California Hospital Association; 2019. Accessed April 25, 2024. https://calhospital.org/wp-content/uploads/2019/11/mentalhealth2019_chaweb.pdf

7. Drought T. Medical decision making for publicly conserved individuals: policy recommendations. Markkula Center for Applied Ethics at Santa Clara University. 2004. Accessed April 25, 2024. https://www.scu.edu/ethics/focus-areas/bioethics/resources/conserved-patient/medical-decision-making-for-publicly-conserved-/