Senate lawmakers wrestle with judicial review in involuntary mental health treatment - VTDigger

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.

Morgan True

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