Lawyers and advocates take issue with the Vermont Department of Mental Health’s proposed rules for emergency involuntary procedures, saying they would violate the law and the civil rights of psychiatric patients.
The regulations in question would govern how acute psychiatric patients could be involuntarily secluded, restrained or force-medicated with sedatives. The new rules were called for by the Legislature in 2012, when the general assembly voted to create a regionalized mental health system after Tropical Storm Irene flooded the state psychiatric hospital.
On Monday, in advance of a Nov. 14 legislative meeting on the proposed standards, the state’s mental health advocates voiced their complaints to Paul Dupre, commissioner of the Department of Mental Health. The meeting will come more than two months after the Legislative Committee on Administrative Rules told the department, the hospitals and mental health advocates to iron out their differences.
A.J. Ruben, attorney for Disability Rights Vermont, says that the rules would make it easier to involuntarily treat psychiatric patients, and this is against state policy.
Title 18 of the Vermont statutes states: “It is the policy of the general assembly to work towards a mental health system that does not require coercion or the use of involuntary medication.”
He told Dupre that the state’s new rules should align with this policy goal.
“When you promulgate these rules, can you look yourself in the mirror and say these rules are focused on reducing seclusion and restraint?” Ruben asked Dupre and his staff.
In creating a new mental health system, the Legislature codified that all psychiatric patients at these new facilities “shall be afforded at least the same rights and protections as those individuals cared for at the former Vermont State Hospital.”
Ruben argues that the new regulations would not do this.
“At Vermont State Hospital, only a doctor who had personally observed a patient was able to order forced medication on an emergency basis,” he said. “The proposed rules would allow even … a nurse practitioner to order forced medication based on a phone call they receive from a nurse. It’s much, much easier to do that than it would have been at Vermont State Hospital.”
Jack McCullough, director of Vermont Legal Aid’s Mental Health Law Project, agrees with Ruben.
“If the department promulgates regulations, and they go into effect, and they do not provide the protections people had at the state hospital, it’s quite likely that those will be challenged in court,” he said. “It should be a fairly simple matter to go to court and say, ‘Your Honor, here is the documentation right here that these regulations do not comply.’”
Jill Olson, vice president of the Vermont Association of Hospitals and Health Systems, says her clients disagree with Ruben and McCullough. She says under the rule change patients would be afforded the same rights as they were in the Vermont State Hospital, even when the clinician delivering care is not a doctor. Well-trained staff, she said, are able to assess patients and “have the appropriate conversation with the physician or advanced practitioner and make the order over the phone or come in and observe the patient.”
“Our feeling was that whatever rule we came up with would absolutely have to protect a patient’s right to not be secluded, restrained or medicated inappropriately,” she said. “We fully support all of the language in the rule that says that no patient should be secluded, restrained or medicated involuntarily except when there is an immediate risk of harm to the patient or to others.”
Dupre says that he is open to changing the proposal, but he says allowing nurses and nurse practitioners to make judgment calls that physicians have traditionally made is a shift.
“We have to look at how medicine is being done in the 21st century, and for physical care, trained (nurse practitioners) and physician’s assistants are used,” Dupre said. “Those that are working in specific specialties are trained for those specialties and … right now for an agency I don’t think it’s unusual to take two years to recruit a psychiatrist, if you’re lucky enough to get one. To rely solely on MDs is a mistake in this day and age.”
