Senate lawmakers wrestle with judicial review in involuntary mental health treatment

Though only a small number of patients are affected, the use of involuntary medication raises thorny ethical issues that dredge up powerful emotions from patients, their families and the clinicians and nurses who provide treatment, as well as members of the public.

One key question is: How can the state ensure timely treatment for severely mentally ill patients deemed by clinicians and judges unfit to make that determination for themselves, while still respecting a patient’s personal liberty?

That is the specific question Senate lawmakers hope to address with a new bill, S.287, which would make changes to the current system for involuntary treatment and medication of psychiatric patients.

Sen. Dick Sears, D-Bennington, one of the longest-serving members of the Senate, pointed out that it’s a topic lawmakers have grappled with before.

Dick Sears

Sen. Dick Sears, D-Bennington, chair of the Senate Judiciary Committee. File photo by Alan Panebaker/VTDigger

“My first year in the Senate, in 1993, I was a member of the Health and Welfare Committee and we dealt with this issue,” Sears said, adding that the current protocols were shaped by decisions made two decades earlier.

More recently, an effort to address perceived shortcomings in the involuntary medication system failed to gain traction last session.

The new Senate bill does not address the appropriateness of treating severely mentally ill patients with medication they may not want, said Sen. Jeanette White, D-Windham, its primary sponsor. Instead it focuses on one aspect of the issue, judicial review.

“These issues are important and will be addressed, but not as part of this bill,” White said. “This bill is designed to make sure people have timely access to judicial review of their case rather than languishing for months or days.”

For many stakeholders in the mental health system, the issues are difficult to separate, and emotions ran high in the hearing room where a joint session of the Senate Judiciary and Health and Welfare committees took testimony Wednesday.

Vermont has 52 involuntarily committed patients at psychiatric facilities across the state.

Only 14 of those patients have cases where the severity of symptoms caused clinicians to petition the court for them to be medicated against their will, said Frank Reed, deputy commissioner of the Department of Mental Health.

But in the last year-and-a-half, 101 “petitions” were filed to involuntarily medicate patients with severe psychiatric symptoms.

Patients in the psychiatric ward at Fletcher Allen Health Care waited between 15 and 173 days from the time of their inpatient admission to when the court ruled on whether or not they could be medicated.

At Brattleboro Retreat, patients waited between nine and 253 days, according to figures provided by the Department of Mental Health. The majority of patients statewide waited from one to three months.

Streamlining the Process

The bill suggests a number of measures to streamline the judicial review process for involuntary medication and involuntary treatment.

Brattleboro Retreat Psychiatric Hospital. Creative Commons photo/Flickr user pag2525

Brattleboro Retreat Psychiatric Hospital. Creative Commons photo/Flickr user pag2525

A major change would allow petitions for involuntary treatment and involuntary medication to be filed concurrently. Present law requires the involuntary treatment process to be completed before the application for involuntary medication can begin.

Another significant change would remove the court’s requirement that orders be stayed for 30 days, or until the time for appeal has expired, for orders of involuntary medication, allowing them to be enforced on entry.

The bill also creates an expedited timeline for involuntary treatment applications, reducing from a maximum of 20 days down to 10 the period from filing the application to when the court must hear it. It would also do away with the current seven day extensions.

It would make mandatory preliminary hearings to determine if there was probable cause to believe a patient needed treatment at the time of their admission. Currently, patients must request such a hearing, and in practice they rarely do, according to Eric Fitzpatrick, an attorney for the Legislature who helped craft the bill.

It would also shrink the window for when a preliminary hearing must be conducted from five days to three, and change the rules of admissibility for evidence and statutory threshold for rulings in those proceedings.

“The idea behind the proposal is that the decision can be made on paper work only,” Fitzpatrick said.

Sen. Joseph Benning, R-Caledonia, expressed concern that the evidentiary changes could infringe on a patient’s rights.

A recent report by the Burlington Free Press on the case of Christina Fitzgerald Schumacher, of Essex, highlights the need to review procedures for preliminary hearings and involuntary commitment.

Following what authorities are calling a murder-suicide in which her estranged husband reportedly killed their 14-year-old son before taking his own life, Schumacher was committed and taken to the Howard Center, Fletcher Allen’s secure psychiatric ward.

Rep. Anne Donahue, R-Northfield, a longtime mental-health advocate, told the Free Press that Vermont is the only state that does not have mandatory probable cause hearings for patients who are involuntarily committed.

There have been two hearings on Schumacher’s case since her Dec. 19 commitment, though she was able to attend neither, according to the Free Press report. At the second, attended by two family friends, the judge postponed hearing the substance of the case until Jan. 27.

Katie McLinn, another attorney who worked on the language of S.287, told lawmakers that in researching the process for involuntary commitment and treatment, she heard that current practice doesn’t always reflect what’s in the laws.

What’s at stake

Though only a small number of patients are affected, use of involuntary medication is an emotionally wrenching and tough legal issue.

“It is an incredibly difficult experience to watch a patient that you care about, that you believe you can help, become worse each day,” said Dr. Robert Macauley, director of Fletcher Allen’s clinical ethics department, responding to questions after his testimony before the joint committees.

That frustration is compounded by the belief that the time spent waiting for involuntary medicine to be authorized extends a patient’s recovery time and ultimately makes it much less likely, he said.

Patients suffering from psychiatric illness sometimes don’t have the capacity to make decisions. In many of the acute situations that would lead clinicians to petition for involuntary medication, the patient has lost their grip on reality, Macauley said.

The purpose of involuntary medicine is to restore a patient’s capacity to make her own decisions, he added.

“In my experience with situations like this, the various sides often become so entrenched in their respective positions that it is difficult to see the other’s rationale and good intentions,” said Macauley, speaking not as a clinician, but an ethicist.

He summarized what he said he believes to be common goals for the involuntary medication system: respecting individual rights, which includes not overriding a patient’s refusal without sufficient cause, helping patients in need, and protecting others, namely patients and medical staff.

Sen. Claire Ayer speaking on the Senate floor. VTD/Josh Larkin

Sen. Claire Ayer, D-Addison, chair of the Senate Health and Welfare Committee. File photo by Josh Larkin/VTDigger

There are some who debate the definition of “sufficient cause,” Macauley said, and still others who argue a patient’s individuals rights or autonomy should never be violated.

That’s an issue lawmakers will have to tackle with the language in their final bill.

Another definitional challenge raised by involuntary medication is the question of what it means to be mentally ill. Many mentally ill patients deny that they are ill, or believe the mentally ill version of themselves is truer to who they really are, Macauley said. However, psychiatrists would classify that as a lack of insight, he added.

The law must also strike a balance between the countervailing human priorities to live life on one’s own terms and living together in society. That dichotomy is particularly salient when a patient refusing treatment is considered a threat to themselves or others, he said.

Plan going forward

The Senate Judiciary Committee will consider the legal ramifications of the bill, while the Health and Welfare Committee will focus on access to treatment, treatment quality and cost, said Sen. Claire Ayer, D-Addison, who chairs Health and Welfare.

In the coming weeks the joint committees will hear testimony from providers and judiciary officials, and on Jan. 30, there will be a public hearing on the bill.

Comments

  1. Barry Kade :

    These debates never seem to deal with why a patient might rationally refuse a particular medication, perhaps based on past bad experience with the particular drug.

    • Curtis Sinclair :

      The patient is never rational according to the psychiatrists. Anyone who disagrees with them is accused of lacking insight.

  2. Curtis Sinclair :

    This bill is a disaster. The article didn’t mention the part of the bill that says “Hearsay, to the extent it is deemed relevant and reliable by the Court, shall be admissible.” Then later “If probable cause to believe that the individual was a person in need of treatment at the time of his or her admission is established by substantial evidence at the preliminary hearing, the individual shall be ordered held for further proceedings in accordance with the law.”

    Doesn’t anyone see anything wrong with those parts of the bill? The mental health hearings are already a kangaroo court, but allowing this would make it into something even worse. There is a reason why hearsay is not allowed in court. It is unreliable and might be distorted or misinterpreted by the witness relating it in court. And using a standard of substantial evidence to deprive people of their freedom is absolutely outrageous. There is a reason why ‘beyond a reasonable doubt’ is the standard used in criminal proceedings. Why is someone who is considered mentally ill not allowed to have as many rights as a person accused of committing a crime?

    They are only trying to further rig the system so that a person has no chance at all to fight against the state. Everyone should read about the Schumacher case so they can see how easily someone can be deprived of their freedom. Her case is only the latest in a long list of people who have had their rights violated by the mental health system. I saw rights violations happen many times at the Vermont State Hospital. I saw a woman who argued wither her doctors at Fletcher Allen get diagnosed as having Oppositional Defiance Disorder and locked up for months. I saw people locked up for months for such minor acts as breaking a window, getting locked outside of a motel room naked, hitchhiking on the interstate and stealing a pack of cigarettes. I saw what goes on in the courts. People do not get a fair hearing. The judge only rubber stamps what a psychiatrist says. The patient hardly gets a chance to say ANYTHING. Did you see ” There have been two hearings on Schumacher’s case since her Dec. 19 commitment, though she was able to attend neither.” What kind of fair hearings can these be if someone can’t even be there to defend herself?????

    Many of the doctors who work in the mental health field aren’t even competent. The US Department of Justice found in 2005 that many patients at the Vermont State Hospital had been given inappropriate diagnoses.
    http://www.justice.gov/crt/about/spl/documents/vermont_findlet_7-5-05.pdf‎
    This had been going on for DECADES before they got caught. Here is the exact wording from the Justice Department report “To begin with, assessments are inadequate, which, in turn, leads to inappropriate diagnoses. Faulty diagnoses then contribute to deficient treatment plans and interventions, thereby precluding the specific needs of a patient from being addressed, let alone ameliorated. Moreover, unworkable treatment plans are rarely if ever revised, causing a vicious cycle to continue repeating itself. ” All of these case were put before a court for DECADES but the abuses and incompetence was not stopped by any judge. That’s because the judges don’t listen to the patients, they only listen to the lies that the psychiatrists tell. It’s an adversarial system so psychiatrists lie and exaggerate behaviors to make them seem to be symptoms of a mental illness even when they are not. You can see how that happened in the Schumacher case. Her doctor said she was “engaging in explosive behavior such as yelling and throwing things,” Her son had just been murdered because the system had failed to protect him from her abusive husband and she was angry. Anyone would be. But to a psychiatrist that is a dangerous mental illness that needs to get someone locked up. It’s like the old joke where a psychiatrist asked a patient what his childhood was like. The man says ‘perfectly normal’ and the psychiatrist says ‘so you wanted to kill your father and sleep with your mother.’ Funny joke, but it’s not so funny when it happens in real life and you find yourself locked up for an indefinite period based on lies.

    Another part of the bill is something they tried to pass a few years ago that would “streamline” the process. Again, this only further rigs the system in favor of the state. When a person is locked up he or she has no access to a telephone and very limited contact with the outside world. Given those problems it can take a long time for a patient to find a good lawyer to make a defense and even longer to find someone to testify. Streamlining the process would make it impossible. Most often the only way a person can make a case that they don’t need to be force drugged is by good behavior over a period of time while in custody. That is very difficult when someone is unjustly confined, but often times it is the only thing a patient has. Streamlining the process would even take away that period of time a person has to prove they can function without being drugged into a stupor. And that is no exaggeration. I saw people drugged so badly at the Vermont State Hospital they they could hardly stay awake. The drugs can give people serious and even fatal side effects such as akathisia, dystonia, parkinsonism, tardive dyskinesia, blood dyscarias, and neuroleptic malignant syndrome. If lawmakers really want to improve the mental health system they should be working to eliminate involuntary treatment. People are often afraid of asking for help or talking about problems because they fear getting committed and drugged against their will.

  3. Jim Barrett :

    Being the only state without a modern judicial review process should make it very easy for this to be established in Vermont. The poor lady is being held in a hospital without the full protection of law while these people in Montpelier diddle on their half empty desks!

  4. walt stawicki :

    Well, i see Bazelon has called forth it’s minions into battle against the bad bigpharma gestapotherapy state….as always. Which sorta proves how pokarized we are. i have yet to see sny dialogue from the Bazelon / absolute freedom-to-live-with-no-rules-imposed wing. i have yet to see, even from those who cogently explain shortcomings, any solutions. indeed, its pure individual libertinism, no limits. its chaos. it certainly cant be called compassion, not when you see how it actually plays out in alleys and jails and morgues. they assert the right to fight police aliens from space..to the death. the right to loiter by train tracs in nyc, deciding whom to push to death. there is no ballance in their “lofty” words of FREEDOM. there is no right to survivesl, quality if life, freedom FROM dangers. their is only unabashed “do what i want , your not my boss. i have no boss!” most civilized…not!

  5. Curtis Sinclair :

    The 1967 documentary film Titicut Follies shows how inhumane it is to lock people up for “their own good.” That kind of thing still goes on in institutions. I saw a patient tackled and threatened at VSH for taking a cup of milk out of the dining room without a lid. I saw people locked up in small bare rooms for nearly an entire day because they yelled too much. Some people seem to be fine with that kind of thing as long as it is out of sight out of mind. At least that’s what I made out from the above nearly incoherent post. If you talk to a psychiatrist like that you could easily be ruled incompetent.

  6. Tim Stone :

    “…taken to the Howard Center, Fletcher Allen’s secure psychiatric ward.”

    The HowardCenter is the designated mental health agency for Chittenden County; they may do some screenings but are not the same as Fletcher Allen’s secure psychiatric ward.

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