Psychiatric holds and refusal of medical treatment

I apologize for the stagnant blog of late.  I’ve been working on an idea or two that hasn’t jelled yet.  Meanwhile, I ran across a familiar yet troubling occurrence the other day: The use of a psychiatric hold on an inpatient with no psychiatric disorder but who was refusing life-saving medical treatment.

My comments are limited to California, as each state has its own laws about psychiatric holds, a.k.a. involuntary civil commitment.  The Lanterman-Petris-Short (LPS) Act, signed into law by Governor Ronald Reagan in 1969, made California the first state to employ a “dangerousness” standard to justify psychiatric holds.  Prior to this, mental patients were generally committed on the basis of “need for treatment.”

Dangerousness is defined in the LPS law as danger to self (usually interpreted as intentional self-harm or suicide risk, not mere recklessness), danger to others, or grave disability (inability to provide for one’s own food, clothing, or shelter).  For LPS provisions to apply at all, the alleged dangerousness must be the result of a mental disorder or chronic alcoholism.  The LPS Act is part of the state Welfare and Institutions Code, sections 5000 and following.  The initial 72-hour hold in California is called a “5150” as it is authorized in section 5150 of the WIC.  Here is a brief history of California mental health law.

Virtually all other states adopted psychiatric commitment laws similarly based on dangerousness after the US Supreme Court ruled in O’Connor v. Donaldson, 422 U.S. 563 (1975) that, “There is…no constitutional basis for confining such persons involuntarily if they are dangerous to no one.”

Let’s turn now to a non-psychiatric setting, the general medical-surgical hospital.  Some hospitalized patients cannot make informed medical choices, or they may express unpopular, “crazy” opinions.  At one extreme are patients who arrive unconscious and cannot express a choice at all.  In the typical emergency situation, doctors and nurses reasonably assume such a patient wants to receive lifesaving treatment, and proceed accordingly.   Other patients may be delirious, in great pain, or suffering from a brain injury or stroke.  They may express preferences that make no sense to the medical professionals, choices that seem “crazy.”  (Questions about decision-making capacity almost never arise when the patient agrees with the doctor, only when there is disagreement.)

These situations have nothing to do with psychiatric illness.  It is well recognized that some patients lack the capacity to make medical decisions while in the throes of severe illness or injury.   As with the unconscious patient, lifesaving treatment proceeds with assumed consent.  No one lets a confused delirious patient stagger out of the hospital just because he lurches blindly in that direction.

More challenging ethical dilemmas arise when a refusing patient is simply uneducated or from another culture.  When I was a medical intern, I saw an elderly Filipino man with intestinal bleeding.  He had never been seriously sick before, and did not understand Western medicine.  He refused blood transfusion on the theory that “the more you put in, the more will leak out.”  The senior medical resident requested a psychiatry consult to declare the man incompetent to make such decisions.  (This was a mistake, as I’ll explain shortly.)   He then received transfusions against his will.  Soon thereafter the patient refused surgery needed to stop the bleeding.  The surgeon proclaimed he would never operate on an unwilling patient — but in an odd twist, when the patient lapsed into unconsciousness, he was “no longer objecting” and the surgery proceeded.  The patient died in the post-surgical ICU, never having regained consciousness.

This sad case highlights a few important points I’ll just touch on here.  First, assessment of medical decision-making capacity is not a special skill of psychiatrists.  All physicians are supposed to do this routinely (albeit usually implicitly).  Internists need to know whether their patients can give informed consent for medical treatments, and surgeons should likewise assess the capacity of their patients to consent to surgery.  “Competence” is an overarching legal status decided by a court, not by medical or psychiatric assessment alone.  Perhaps the most obvious point: Once a patient’s consent or refusal is considered valid, its ethical force doesn’t diminish when the patient falls asleep or lapses into unconsciousness.

Now, how does the “5150” apply in the non-psychiatric hospital setting?  Hardly at all.  Patients with severe mental illness are sometimes hospitalized for unrelated conditions, and occasionally meet dangerousness criteria for a 5150 hold while receiving medical treatment.  But the more common situation is the misuse of the “5150” to prevent an apparently lucid patient from refusing lifesaving medical or surgical treatment and leaving the hospital.  This is startlingly common — it startles me, anyway — and happened just the other day at my hospital.

It should be obvious why the 5150 cannot be used this way.  First, it only applies to a situation in which a mental disorder or chronic alcoholism leads to dangerous behavior.  Second, refusal of lifesaving medical treatment is not “danger to self” as the law is normally understood.  Third, even a legitimate 5150 hold only compels three days of psychiatric evaluation and protective custody; it says nothing about forcing medical or surgical (or even psychiatric) treatment on anyone.

The solution is for physicians to assess the medical decision-making capacity of their own patients.  Where available, a hospital ethics consult can clarify the relevant issues, but this is usually optional.  Patients who possess medical decision-making capacity have the right to refuse treatment and to leave the hospital if they wish, even if they die as a result.  Those who lack such capacity can be treated, like the comatose or delirious patient, with assumed consent.  However, a superior court determination of incompetence to make medical decisions is required to force non-emergency medical or surgical treatment.  LPS law is silent on these matters.

111 comments to Psychiatric holds and refusal of medical treatment

  • justin

    I live in California and had an argument with my son over his grades. I said something sarcastic about I should move away or just kill myself if you are going to lie months in a row.. anyway, he called his mom and she came and got hm. He is 14. [details deleted: the writer was soon 5150’d by police who came to the house, presumably as a result of hearsay reported by his ex-wife. He reports he was calm and not suicidal, but was held anyway, restrained, and involuntarily medicated. — SR]

    Now when I hear loud bangs at the door or behind me I get anxiety fear adrenal rush that I hate. I dont feel safe I my own home…. if anyone can tell me of a similar case or a civil rights lawyer that will touch this let me know….

    Justin N. [email deleted]
    Navy Veteran

    • I’m sorry this happened to you. However, you are commenting on a post that isn’t even about 5150 for threats of suicide. It’s about using 5150 in hospitals to force medical treatments. There are probably websites devoted to collecting reports of cases like yours; they may even have legal resources for you to pursue. This isn’t that website.

  • luc

    I have a question: If I’m 5150ed for expressing suicidal thoughts and plans to my therapist, and she contact law enforcement, can they hold me past 72 hours if I absolutely refuse to speak to anyone who might evaluate me? I don’t mean remain mute for the entire 3-day hold, I mean just refuse to speak to any psychiatrist.

    I have gotten into trouble before for revealing too much to my therapist, and I want to know what my options are if I reveal too much in the future.

    • The short answer is yes. Whether you cooperate or not, the responsible psychiatrist(s), and ultimately the judge who reviews your case, assesses whether you are a danger to yourself or others, or unable to care for yourself. If you won’t talk, they use whatever other evidence is available. In California, any hold past 72 hours has an automatic judicial review, a “probable cause hearing”, where a judge decides whether to extend the hold.

  • luc

    Thanks for your reply. So basically you’re saying that unlike a criminal trial, in which exercising my right not to incriminate myself is constitutionally protected and is not in any way an admission of guilt, in a 5150 hearing, my silence can be used against me? Why is the therapist’s word trusted over the patient’s? I have had some very unethical therapists in the past, including one who tried to get me to commit insurance fraud.

    I understand that the psychiatrist is trying to assess me, but in the absence of any proof beyond the therapist’s recommendation, how they continue to hold me against my will? Isn’t that a violation of my rights? Police must either charge people or release them after a certain point, why is mental health version of this so draconian? Shouldn’t 72 hours of non-suicidal behavior itself be enough to prove that the person isn’t actively a threat to themselves?

    • Luc,
      This post is about the use of 5150 to compel medical treatment, so we’re a bit off-topic here. A probable cause hearing, for 5250 not 5150, is not a criminal trial, and the standards are different. Hearsay evidence is admissible, the evidentiary standard is “probable cause” and not the stricter “clear and convincing evidence” or “beyond a reasonable doubt”. And yes, one’s silence may be seen by the judge as a risk factor, although it may also be viewed as an irrelevant expression of anger or mistrust. (The judge doesn’t care how angry or mistrustful you are.)

      Even in criminal trials, exercising your right not to incriminate yourself doesn’t guarantee freedom. You can be found guilty anyway. The difference is that in a 5250 hearing, silence may be seen as evidence. It depends on the judge.

      Whether 72 hours of non-suicidal behavior proves anything is debatable. It’s easy enough to wait a couple days and then kill oneself. The LPS laws (5150, 5250 etc) include a judicial review, similar to the arraignment that police require in criminal cases. These laws cannot guarantee long-term safety, but they do provide for protective custody of up to 30 days for suicide risk, 180 for homicide risk, and indefinite custody, with periodic reviews, for those deemed unable to provide for their own basic needs. We may agree or disagree about these laws — some want them stronger, some weaker — but that’s what they are as of now.

  • luc

    How can you in good conscience even abide by those ridiculous laws? Holding people indefinitely against their will because they are a risk to themselves? So if a cancer patient wants someone to kill him, it’s somehow a compassionate choice to MURDER another person, but if a person wants to kill HIMSELF, it’s crazy? Really?

    Why should the evidence be any different in a criminal vs. 5150 hearing? The results are the same, if found the equivalent of guilty: Being imprisoned against one’s wishes. Yet criminals have a presumption of innocence, but people with mental issues don’t? And you’re incorrect, a defendant’s refusal to testify cannot be used against him. Sure, he might still be found guilty, but a juror could also be bought off, the DA could tamper with evidence, the judge could fall asleep during the trial, etc., the bottom line is that the refusal to accuse oneself is a constitutional right, and if after a guilty verdict it was discovered that a juror or jurors did hold this against the defendant, the guilty verdict could be overturned.

    I totally get hospitalizing someone who is a threat to others. Totally. But to themselves? I’ve wasted a great deal of time in therapy trying to skirt around expressing my true feelings b/c I’m afraid of getting 5150ed. Which do you think is better in the long run: A therapeutic relationship based on total honesty, or one in which the patient is constantly stressing out about which thoughts to reveal for fear of the men with butterfly nets knocking on the door?

    • You’re overgeneralizing and getting some facts wrong. Let’s back up. In California, the LPS laws (5150, 5250, 5260) allow a maximum of 30 days detention for danger to self, i.e., acute suicide risk. There are no laws to hold anyone indefinitely for suicide. In practice the 14-day 5260 is rarely used, so the great majority of involuntary hospitalizations for suicide are under 17 days (5150 = 3 days, plus 5250 = 14 days). And usually a good deal shorter: in most adult psychiatric hospitals the average length of stay is less than a week. Indefinite detention, called a permanent conservatorship in California, is for “grave disability,” i.e., people who are so out of it they would starve or die of exposure if not taken inside, and kept there until they improve enough to survive on their own.

      You’re right that in a criminal trial, a defendant’s refusal to testify cannot be used against him. However, he can still be lawfully convicted by other evidence. An accused bank robber may refuse to take the stand, but may still be convicted if security cameras filmed him robbing the bank. The same applies in a 5250 hearing: you are free to remain silent, yet the judge may still uphold the 5250 based on other evidence, e.g., a suicide note, a recent documented attempt, etc. There’s a slight difference in that the constitutional freedom from self-incrimination doesn’t apply in the 5250 hearing — it’s not a criminal trial — but in practice this is rarely a deciding issue. If you are ever in this situation, it’s probably better to explain that you have no intention of killing yourself… if that’s true.

      As I’ve written elsewhere, there’s a big difference between suicidal thoughts, versus intention to carry it out. I have spent many therapy hours listening to patients relate suicidal feelings and fantasies — homicidal ones too — without 5150’ing anyone. In my opinion, this is crucial for real psychotherapy to take place. I’m left wondering whether you have unrealistic fears about being hospitalized, or whether you have good reason to think your therapist is too anxious or hair-trigger to give you the needed space to explore your feelings. If the latter, perhaps you should find a therapist who knows the difference between feelings and actions.

      All that said, if you share with a therapist that you actually plan to kill yourself in the near future, or are likely to, you shouldn’t be surprised if he or she initiates a 5150. We are obliged to intervene legally if we believe it’s probable that suicide will be attempted. “Probable” doesn’t mean simply hearing feelings or thoughts about suicide, but it doesn’t require 100% certainty either.

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