Transcript HEALTH CARE REFORM 101: WHAT YOU REALLY NEED TO …

LEGAL PITFALLS & PROTECTIONS
IN MENTAL HEALTH TREATMENT
January 20, 2012
MITCHELL
MITCHELL

BLACKSTOCK

BLACKSTOCK

IVERS
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SNEDDON

PLLC
David Ivers
Mitchell Blackstock Ivers & Sneddon Law Firm
1010 West Third Street
Little Rock, Arkansas 72201
(501) 519-2072
[email protected]
These materials are for instructional purposes only, and are
not to be relied on for legal advice. Legal counsel should
always be consulted for specific problems or questions.
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Table of Contents
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Speaker Biography...................................................... 3
Malpractice................................................................. 4
Informed Consent........................................................ 5
Legal Safeguards....................................................... 15
Other Treatment Issues.............................................. 18
Power of Attorney...................................................... 19
Advanced Psychiatric Directives.................................... 20
Guardianship............................................................. 22
Rights of Individuals with Mental Illness........................ 25
Still On the Books...................................................... 29
“Enlightened” View Since 1975..................................... 30
Right to Refuse Treatment........................................... 31
Sterilization............................................................... 36
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Speaker Biography
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David Ivers, J.D. is an attorney in Little Rock with the firm of
Mitchell, Blackstock, Ivers & Sneddon. Mr. Ivers’ practice
focuses on health law, including healthcare legislation,
healthcare reform, Medicaid, Medicare, fraud and abuse laws,
compliance, and HIPAA/HITECH. He represents numerous
healthcare providers, including behavioral health. Mr. Ivers
also handles employment matters for healthcare providers. He
is one of the authors of the Arkansas Medical Society’s Legal
Guide, which explains legal topics of relevance to healthcare
providers. He attended Arkansas State University (Wilson
Award winner 1984) and graduated with honors from UALR
School of Law in 1992. Since that time, he has worked at the
Mitchell Blackstock Law Firm where he has been a partner
since 1997.
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Malpractice
 "Medical injury" or "injury" under Ark. Code Ann. 16114-201 means any adverse consequences resulting
from professional services by provider:
 without informed consent
 in breach of warranty or in violation of contract
 from failure to diagnose
 from premature abandonment of a patient or of a
course of treatment
 from failure to properly maintain equipment or
appliances necessary to the rendition of such services
 or otherwise arising out of or sustained in the course
of such services.
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Informed Consent
 Must obtain informed consent before
initiating treatment, procedure, or
surgery.
 Battery – no consent
 Malpractice – not “fully informed”
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Informed Consent -- continued
Lack of informed consent exists if you:
 Fail to give type of information
regarding treatment, procedure, or
surgery as would customarily have been
given by other providers with similar
training and experience in the same or
similar locality.
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Informed Consent – Content
Content should include:
 Dx (if applicable)
 Nature of contemplated treatment or
procedure
 Risks involved
 Probability of success
 Risks of foregoing the procedure
 Existence of any alternatives
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Informed Consent -- Who may
consent (20-9-602)
 Arkansas Code 20-9-602 applies to
“any surgical or medical treatment or
procedure …that is suggested,
recommended, prescribed, or directed
by a licensed physician.”
 Even though non-physicians not
addressed, best course is to follow
statute.
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Informed Consent – Who may
consent(20-9-602) -- continued
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Adults
Parents for minor child or adult child of “unsound mind”
Married person, whether adult or minor
Females regardless of age when in connection with pregnancy or
childbirth (not abortion)
Persons in loco parentis and formal guardians
Emancipated minors
Unemancipated minors “of sufficient intelligence to understand and
appreciate the consequences”
Adults for minor siblings or adults sibling of unsound mind
Grandparents in absence of corresponding authorized parent
Married persons for spouse of unsound mind
Adult children for parents of unsound mind
Incarcerated minors
Foster parents or preadoptive parents with some restrictions
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Informed Consent -- continued
Material issues for jury:
 Whether person of “ordinary intelligence and awareness”
could “reasonably be expected to know of the risks or
hazards”
 Whether the injured patient (or person giving consent)
actually knew of the risks or hazards
 Whether the injured party would have undergone
treatment regardless of risk or did not wish to be
informed
 Whether it was reasonable for provider to limit
information because it could substantially affect patient’s
condition
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Informed Consent -- continued
 Objective, not subjective standard
(Aronson v. Harriman, 1995)
 Does not apply in emergencies
(consent presumed)
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Informed Consent -- continued
Do’s and Don’ts
 Fill in blanks before, not after getting signature
on the form (Kelsey v. NARMC, 2011)
 Don’t present to client who is medicated
heavily (Kelsey)
 If you say a “physician/nurse/therapist has
discussed,” then make sure he/she has
 If client’s competency in doubt, get guardian’s
signature or person authorized on his/her
behalf
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Informed Consent – Forms
 Sample forms online or for purchase
 “Informed Consent in Psychotherapy
& Counseling: Forms, Standards &
Guidelines, & References,” available
at http://kspope.com/consent/
index.php#forms
 Obtain legal review of forms in light
of your particular practice
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Informed Consent – Special
Situations
 Neuroleptic (antipsychotic)
medications
 “Innovative treatment” (Johnson
opinion, Roaf concurring)
 Research on humans
 Detailed rules apply and greater
protections are proposed (OHRP)
http://www.hhs.gov/ohrp
 Any situation with enhanced risk
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Some Legal Safeguards
 At Intake:
 Fees and billing policies/Payment Agreement
 Consider specifying which services available if limited
 On-call/after-hours mental health emergency
numbers
 Suicide risk screen
 Informed Consents
 Permission to Transport if anticipated (make sure
your insurance covers)
 Client/guardian signature
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Legal Safeguards -- continued
 Suicide risk assessment in crisis or when risk factors
present
 Document “against medical advice” (Young v. GastroIntestinal Center, 2005)
 AIMS & EPS assessments when clinically indicated
 If client needs services you don’t provide, make referral
and document
 Carefully document reasons for discharge,
recommendations, etc.
 If you take responsibility upon discharge from inpatient
setting, follow discharge instructions or carefully
document departure (Est. of Beard v. DaySpring)
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Legal Safeguards -- continued
 Make sure all staff aware of mandatory reporting
requirements
 List which clinical abbreviations are not to be used due
to risk of confusion, mistake
 Develop protocols for high-alert and look-alike/soundalike meds
 Document response to changes in client status
 Policies and training on suicide risk detection and
prevention
 Remove access to anything that could be used as
weapon or instrument of self-harm
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Other Treatment Issues
 Don’t count on malpractice insurance if you go
outside the bounds of professional conduct
(McQuay v. Guntharp, 1999, fondling breasts)
 Follow procedures but not blindly – Dodson v.
Charter Behavioral Health System
 Tarasoff Exception -- Confidentiality gives way
to duty to warn of imminent harm
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Power of Attorney
 Written authorization for someone else to act
on your behalf.
 “Springing” – effective only when declared
incompetent
 “Durable” – goes into effect immediately,
 “Health Care POA” – Relates only to health
care matters
 One size does not fit all – read before
relying
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Advanced Psychiatric Directives
 Advisable for clients in event of crisis
 In Arkansas, two situations are covered
by “advance directive” statute:
 terminally ill
 permanently unconscious
 Some states have specific statutes for
Psychiatric Advance Directives, but
Arkansas does not
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Advanced Psychiatric Directives
-- continued
 Arkansas statute authorizing a “Durable
Power of Attorney” can be used because
very flexible
 Form on DBHS website is Durable Power
of Attorney, but uses terminology of
Psychiatric Advance Directive
http://humanservices.arkansas.gov/dbhs/Documents/ DBHS%
20Website%20-%20Psychiatric%20Advance%20Directive%
20brochure%20(consumers)%20June% 202011.pdf
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Guardianship
 Guardian may be appointed for any
incapacitated person
 A professional must perform eval that includes:
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medical and physical condition;
adaptive behavior;
intellectual functioning; and
recommendation as to the specific areas for which
assistance is needed and the least restrictive alternatives
available.
 A Person must be “substantially without
capacity to care for himself or herself or his or
her estate.”
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Guardianship – Typical form
In the Circuit Court of __________ County, Arkansas.
In the Matter of CD,
an Incapacitated Person (a Minor)
Case No. __________
LETTERS OF GUARDIANSHIP
Be it known that AB, whose address is __________, having been duly
appointed guardian of the person and estate (person/estate) of CD, an
incapacitated person (a minor) and having qualified as such guardian, is
hereby authorized to have the care and custody of and to exercise control
over the person and to take possession of and administer the property
(have the care and custody of and to exercise control over the person) (to
take possession of and administer the property) of said incapacitated
person (minor), as authorized by law.
Dated this _____ day of __________ , 20___.
(SEAL)
[NOTE--May be “limited” guardianship – read before relying.]
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Guardianship – Public Guardian
 Available for “incapacitated person
receiving services from any public
agency”
 Office of Public Guardian for Adults
located within DHS
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Rights of Individuals with
Mental Illness
U.S. CONSTITUTION
 5th Am. Due Process
 8th Am. Cruel and Unusual
Punishment
 14th Am. Equal Prot, Due Process
 (Sometimes privacy, free speech &
thought, and other liberty interests)
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Rights -- continued
Federal Statutes
 Americans with Disabilities Act
 Civil Rights of Institutionalized
Persons Act
 Fair Housing Amendments Act
 Individuals with Disabilities
Education Act
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Rights -- continued
Arkansas Constitution
 Art. 19, Section 19. “It shall be the
duty of the General Assembly to
provide by law for the … treatment of
the insane.”
 Due Process, Equal Protection, Cruel
and Unusual Punishment, Fair Trial
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Rights -- continued
Arkansas Statutes
 Civil Commitment (inpt & outpt)
 Criminal Commitment
 Arkansas Civil Rights Act
 (Rules of Evidence)
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Still on the Books
 “It shall be the duty of all peace
officers to arrest any insane or
drunken persons whom they may find
at large and not in the care of some
discreet person.” (Ark. Code Ann. 2047-101)
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“Enlightened” view since 1975
 Mental illness alone not enough to lock up someone, at
least not since O’Connor v. Donaldson, 1975.
 “May the State fence in the harmless mentally ill solely
to save its citizens from exposure to those whose ways
are different? One might as well ask if the State, to avoid
public unease, could incarcerate all who are physically
unattractive or socially eccentric. Mere public intolerance
or animosity cannot constitutionally justify the
deprivation of a person's physical liberty.” -- Justice
Stewart (O’Connor v. Donaldson)
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Right to Refuse Treatment –
Civil Commitments
 Can be civilly committed if danger to self or
others
 Some limits under Arkansas statute:
 In initial period of evaluation and treatment, no
psychotherapy or medications whose effects last
longer than 72 hours
 No psychosurgery if involuntary admitted
 Electroconvulsive therapy may be used against
patient’s wishes if clear and convincing proof that
such treatment is necessary
 Short and long-acting meds may be used during 45day and 180-day admission periods
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Right to Refuse Treatment –
Criminal Settings
 Generally talking about psychotropic
medications
 Forcing antipsychotic meds on
convicted prisoner is unconstitutional
except in limited circumstances, e.g.,
danger to self or others, health at risk
(Washington v. Harper, 1990)
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Right to Refuse Treatment –
Criminal--continued
 State can force antipsychotic meds solely to restore
competency only if:
 1. Important government interest at stake (rendering
defendant competent for trial)
 2. Involuntary medication will significantly further
that state interest
 3. No less restrictive means
 4. Medications unlikely to have side effects that
impair defendant in trial
 5. Medically appropriate
(Sell v. U.S., 2003)
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Right to Refuse Treatment –
Criminal -- continued
 State cannot execute insane (Ford v.
Wainwright, 1986)
 State cannot execute prisoner while
incompetent, but can force
administration of medication to restore
competency for purposes of execution
(Singleton v. Norris, 8th Cir. 2003)
 If in prisoner’s “best medical interests”
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Right to Refuse Treatment –
Community
“Kendra’s Laws”: involuntary “assisted
outpatient treatment,” for persons
with mental illness who, in view of
their treatment history and present
circumstances, are unlikely to survive
safely in the community without
supervision
http://www.omh.ny.gov/omhweb/Ke
ndra_web/Ksummary.htm
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Sterilization
 Parent or guardian may petition court
for sterilization of incompetent person
(Ark. Code Ann. 20-16-304 & 305)
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