Bipolar Disorder Is Like Having Two Serious Illnesses at Once
Depression and Bipolar Support Alliance
American Foundation for Suicide Prevention
What are my rights to refuse hospitalization?
The right to refuse hospitalization varies from state to state. That being said, most states have fairly similar criteria for involuntary hospitalization or what is also known as civil commitment. Such criteria are that a mental illness is present and the person is imminently dangerous to self or others. Ways in which the criteria may differ from state to state are primarily on the length of stay allowed prior to court review and on minor procedural differences. There may also be differences as to whether inclusion of a term called grave disability can be added as an additional criterion when deciding to hospitalize an individual involuntarily. Some states do not allow for this.
The designation of grave disability means an individual is so disabled by a mental illness that he or she is in imminent danger due to the disability. For example, an individual with severe diabetes who has stopped taking insulin because of severe depression would be considered in grave danger of developing a diabetic coma.
Some historical background is helpful in order to understand the basis of one’s rights to refuse hospitalization. Involuntary commitment to a psychiatric hospital was first based upon the legal term parens patriae (Latin for “parent of his country”). Under this doctrine, the state or government, as represented by a physician, acted as the “parent” for the mentally ill individual and could commit him or her to a psychiatric facility merely based on the opinion that the patient was in need of such care. A landmark 1973 case, Lessard vs. Schmidt, in Wisconsin changed this law. Alberta Lessard, the plaintiff, was involuntarily committed and argued successfully that her rights were violated because of that commitment. First, she argued that the grounds upon which she was committed parens patriae law, was overly vague by defining a mentally ill individual as one who requires care and treatment for his own welfare or for the welfare of others in the community. Second, she argued that the procedure used to commit her violated her civil rights by denying her due process. The court agreed on both counts arguing that the patient had all the rights accorded to a criminal suspect. As a result of this case, parens patriae was replaced by the requirement that an individual meet the criteria of being both mentally ill and imminently dangerous in order to be involuntarily committed. The courts hoped to decrease the number of admissions to psychiatric hospitals by defining the commitment standards more narrowly, as they considered such action as potentially more damaging than the risks to the individual and community by not committing them.
A second legal ruling occurred in 1976, known as the Tarasoff case, after the family of a girl murdered by a man sued for not being warned of the man’s threats to murder the girl. The man had told his psychologist of his intentions and the psychologist notified the police of the man’s threats. The police performed their own interview of the man. Based on their interview there was no evidence that the man was either mentally ill or imminently dangerous and he was released. The initial court ruling held that both the police and the treating clinicians were responsible, but on appeal the case against the police was dropped while the clinicians were held to an even greater standard that required of them the duty to protect. With the growing concern about the increasing liability one accepts for treating individuals with potential for such acts, and the fact that there is no science to predict dangerousness, the number of individuals involuntarily committed has skyrocketed, leading to a consequence the courts hoped to actually avert.
Understanding the history behind involuntary commitment is important to understand the right to refuse hospitalization. Expressing suicidal or homicidal feelings does not automatically mandate immediate hospitalization. Consideration is given to what is said, how it is said, and to whom it is said. The less the clinician knows the patient, the more careful that clinician will be in asking further questions or in referring the patient to an emergency room to be evaluated for hospitalization. Nothing regarding safety is taken lightly under these circumstances, even if one is expressing feelings in a way that he or she believes is figurative and not literal. It is important to have a strong, trusting relationship with one’s treating clinician where all options for treatment can be discussed openly and freely without fear. Under those circumstances hospitalization may be raised as an option among many others for thorough discussion. The clinician should be able to describe parameters for when hospitalization is considered an absolute necessity. The clinician may ask for outside supports such as family members to be more involved in order to avoid hospitalization. In fact, an adequate support system is one of the single most critical factors in maintaining safety and avoiding hospitalization.
Patients who are hospitalized involuntarily have options available to appeal the commitment. The right to due process and legal representation is maintained. Depending on the state, this may include a court-appointed attorney or a legal advocate. A specific time limit is usually set by the state within which a patient has a legal right to have a hearing before a judge to request release from the hospital. Hospitals are also required to post a patient’s “bill of rights” and hand them out to every patient. Even when involuntarily committed, patients continue to have the right to refuse treatment and cannot be medicated without consent unless there is a clear and immediate danger toward self or others. Legally known as a chemical restraint, this is typically a one-time dose of a short acting medication to help calm the patient. Physical restraint or seclusion may also be applied to prevent a patient from harming one’s self or others. The federal government mandates specific requirements regarding the application of such restraints, including appropriate monitoring and documentation of restraint usage, and specific time limits within which reevaluation by a physician is required.
What are my rights to refuse medication and other treatments?
Unlike involuntary hospitalization where issues of safety trump autonomy, the right to refuse treatment continues to be sacrosanct. In general, patients have the absolute right to refuse medical or psychiatric treatment of any kind, short of emergency hospitalization for issues of safety. The clinician must obtain informed consent prior to prescribing any treatment. Informed consent is a legal and ethical doctrine fundamental to modern medicine. The process of obtaining informed consent includes the following elements:
• Assessment of the patient’s capacity to make medical decisions
• Absence of coercion of the patient
• Patient is fully informed of his or her diagnosis and prognosis, risks versus benefits of the treatment offered, risks versus benefits of alternative treatments, and risks versus benefits of receiving no treatment
There are few but notable exceptions to informed consent. These exceptions include emergencies, therapeutic privilege, therapeutic waiver, and implied consent. In many emergency situations the patient is unconscious and in need of life-saving treatment. Informed consent is assumed or obtained to the best of the clinician’s ability. When clinicians assume therapeutic privilege, they are withholding information from the patient because they believe informing the patient will cause more harm than good. Occasionally patients will request not to be informed. In other words, they waive their right to be informed. Such a waiver is not advisable. One should enlist the aid of a family member to make decisions when one wants to remove oneself from the decision. Finally, implied consent occurs when one offers one’s arm to have blood drawn or his or her blood pressure checked.
When refusing medication or treatment, it is important to be informed of and understand the potential consequences of refusing. Understanding the consequences requires one to have the capacity to refuse treatment.
Capacity to refuse treatment requires four elements:
• The ability to express a choice
• The ability to understand the treatment options and their consequences
• The ability to appreciate the information as it applies to one’s specific situation
• The ability to reason with the information
All four elements must be met for a patient to have the capacity to decide upon medical or psychiatric treatment.
Obviously most of these elements are generally understood between the patient and the clinician in most treatment decisions. These become important to sort out more clearly when someone is in a life-threatening situation and is refusing a life-saving treatment.
Under those circumstances, a physician may call in a psychiatrist to evaluate one’s capacity to refuse treatment, and if one lacks such capacity, he or she will recommend emergency conservatorship in order to help make such decisions. Usually a family member is appointed conservator under those circumstances.
There are fewer, though real, life-threatening psychiatric conditions even after someone has been hospitalized. The most obvious is when a patient remains out of control behaviorally and requires a chemical restraint. Less obvious is a patient so severely depressed he or she is no longer eating or drinking and is refusing all treatment. Under these circumstances, in most states a conservatorship hearing will only allow for medical treatments to maintain the person’s life but will not allow for the administration of psychiatric treatment if that individual continues to refuse that form of care. In fact conservators generally only have the right to make decisions about medical care, housing, and finances.
Conservators cannot sign someone into a psychiatric hospital and they cannot agree to have a person forcibly medicated. Instead a second hearing must occur during which independent psychiatrists review the case and report their findings to the court. Only then will a judge determine whether or not a person can receive psychiatric care against his or her will in the form of medication or some other therapy.
This procedure typically occurs after a patient is hospitalized but continues to refuse medication. Under such circumstances the hospital pursues this course of action because it is believed the patient’s health and well-being depend on treatment.
As an outpatient, you must understand and weigh the treatment options to the best of your ability and enlist outside support from other informative sources if needed. The right to refuse medication as an outpatient is respected most of the time. In fact, few states allow for involuntary outpatient treatment. This is changing, though in very specific and limited circumstances. Recent high-profile cases in various states where noncompliant mentally ill patients have injured or killed someone have prompted new involuntary outpatient treatment laws. But the requirements imposed upon caregivers for making their case for involuntary treatment are exceedingly stringent and require regular court review.
What are my rights to privacy?
Confidentiality has become one of the hottest issues in medicine in the past few years with the introduction of the new federal laws encompassed under the acronym HIPAA (for Health Insurance Portability and Accountability Act). The field of medicine has always regarded confidentiality as one of its highest ethical principles.
Psychiatry has put even greater restrictions on confidentiality given the highly sensitive nature of the issues patients discuss. As a result no information is released to anyone without a written authorization by the patient allowing for such release. A written authorization for release of general medical records is not enough. The patient must knowingly and specifically request psychiatric and/or drug and alcohol information to be released before it can be. Every effort is made to protect a patient’s right to privacy.
There are, however, exceptions to that right and it behooves everyone to know just what those exceptions are. First, confidentiality does not apply when a patient is considered to be a threat to others, unless hospitalized. Second, confidentiality does not apply when the law requires mandatory reporting. This includes communicable diseases, child or elder abuse, impaired driving, and any other requirement in a particular jurisdiction. Third, court-ordered or subpoenaed records can be released without the patient’s written authorization. However, a good clinician will usually notify the patient and attempt to obtain written authorization before honoring the court’s request. Fourth, hospitals and offices may release health care information without the patient’s written permission for the purposes of treatment, payment, or operations (TPO), such as quality control, peer review, teaching, and so on.
This is encompassed under the HIPAA rules. The most important factor to bear in mind when a clinician releases psychiatric information about a patient to another person without that patient’s consent is the concept of “duty to third parties.” Most lawyers would prefer to defend a breach of confidentiality case than a wrongful death case. Clinicians understand this all too well, and in emergency situations may feel obligated to violate a patient’s autonomy and confidentiality in order to protect him or her and the community from some greater harm. This is especially true if the patient is being evaluated in an emergency room. In those instances clinicians will generally not feel comfortable discharging a patient before obtaining outside sources of information, and refusing to allow such contact will only delay discharge and probably ensure hospitalization under an involuntary commitment. Good clinicians, however, will always inform the patient of their decisions and whom they are contacting.
The initial impetus behind HIPAA was to extend the ability of people to maintain their health care insurance after termination of employment and decrease the exclusions for preexisting conditions. HIPAA was also an attempt by the government to provide further controls over fraud and abuse of the Medicare system. To most people, however, HIPAA has become synonymous with privacy because one of the first orders of business when one enters a doctor’s office today is to receive a notice of privacy and sign that one received such notice. The notice of privacy outlines the various ways in which one’s health care information can be shared without requiring written permission unless the person objects to any such release in writing beforehand, as outlined earlier. Again, the notice also outlines the release of health care information as mandated by law as pointed out previously.
Additionally, it specifically mentions that psychiatric and drug and alcohol information are specially protected, though limited amounts of information on these diagnoses may be shared for the purposes of TPO. The notice specifically states that unless provided a written request it is assumed information such as appointments can be shared via phone, mail, or with family members, and so on. Finally, patients have the right to view and amend their health care information by submitting a written request. This right can be denied under specific circumstances outlined in the notice, but the patient has a right to know the reasons and may appeal such denials. Generally, when you first enter a doctor’s office and begin filling out a myriad of forms, one form will be to authorize release of information for purposes of treatment, payment, and operations. With respect to payment, your health insurance company requires medical information for the purposes of payment because they want to know what they are paying for. The term insurance companies use to authorize payment is medical necessity. This means that they want proof that the bill sent to them for a particular service was medically necessary and therefore deserving of payment. This also means that the clinician must send the insurer the diagnosis and the treatment rendered in order to demonstrate medical necessity. If a patient refuses to allow the release of such information, either the clinician may refuse to see or treat the patient or, if seen, the patient will be responsible for the bill.
Terms:
Tarasoff – the name of a family that sued the therapist involved in the care of a young man who murdered a family member. As a result of the lawsuit, therapists are now required to protect and warn potential victims from violent acts or threats made by patients under their care.
Informed consent – the premise that patients have a right to determine what happens to their body, and as such agreement to a treatment requires receipt of information, competence to make the decision, and agreeability for the treatment.
