LEGAL PITFALLS & PROTECTIONS IN MENTAL HEALTH TREATMENTJanuary 20, 2012

David IversMitchell Blackstock Ivers & Sneddon Law Firm1010 West Third StreetLittle Rock, Arkansas 72201(501) 519-2072divers@mitchellblackstock.com

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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MITCHELL BLACKSTOCKMITCHELL BLACKSTOCK IVERS SNEDDON PLLC

Table of Contents

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 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. 16-114-201

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 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 risk14

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. Gastro-

Intestinal 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/sound-

alike 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 Directivehttp://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:

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 formIn the Circuit Court of __________ County, Arkansas.

In the Matter of CD,an Incapacitated Person (a Minor) Case No. __________

LETTERS OF GUARDIANSHIPBe it known that AB, whose address is __________, having been duly

appointed guardian of the person and estate (person/estate) of CD, anincapacitated person (a minor) and having qualified as such guardian, ishereby authorized to have the care and custody of and to exercise controlover the person and to take possession of and administer the property(have the care and custody of and to exercise control over the person) (totake possession of and administer the property) of said incapacitatedperson (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. 20-47-101)

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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 45-day 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 supervisionhttp://www.omh.ny.gov/omhweb/Kendra_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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