Conferees from the Senate and House of Representatives reached a deal Friday on a bill that streamlines the judicial review process for orders to hold, and in some cases, medicate people with severe mental illness against their will.
It passed both chambers and now awaits the governor’s signature.
“We’re trying to balance the rights of individuals with proper treatment,” said Tom Koch, R-Barre Town, a member of the House Judiciary Committee, who led the committee of conference with the Senate. Koch and the bill’s other authors say S.287 strikes a better balance between those two priorities than what’s in current law.
Last year, Gov. Peter Shumlin asked lawmakers to revisit the state’s laws governing the involuntary treatment and medication process to see if it could be improved.
“We have a challenge in Vermont, and that is that we are the most lenient state in the country when it comes to giving patients the ability to refuse or reject pharmaceutical treatment when it is medically warranted,” Shumlin told the Brattleboro Reformer in September.
Shumlin applauded the legislation that is now on its way to his desk.
“The plan agreed to by the House and Senate will make significant steps toward getting timely help to those in need while protecting people’s rights,” he said in a Friday statement.
The bill streamlines the judicial review process by allowing the state – at the request of the treating clinician – to file a motion for an expedited hearing on an application to have a patient involuntarily committed for treatment in a secure facility in certain instances.
It allows the state to file an application to involuntarily medicate a person without waiting for a court decision on the application to have the patient held for treatment in similar circumstances. The court considers involuntary medication and other forms of involuntary treatment separately.
Circumstances include when a person “demonstrates a significant risk” of causing “serious bodily injury” and other clinical interventions have failed to mitigate that risk. A motion to expedite could also be filed for someone who has received involuntary medication in the past two years, and based on their response to other treatments, there is good cause to believe additional time will not result in the patient’s regaining competence or accepting treatment voluntarily.
Current law requires a judge to issue a decision on the clinician’s request for a patient to be held involuntarily for treatment prior to the filing of an application to medicate the patient against their will.
The average time between a ruling on involuntary treatment and involuntary medication is two weeks on average, according to the latest figures from the Department of Mental Health. The time from when a patient is admitted to the psychiatric facility to when a judge rules on the involuntary medication request is closer to 35 days.
That waiting period can hurt a patient’s recovery and ultimately increase the time they must be held in a secure psychiatric facility, according to treatment providers who support the changes.
At a public hearing held earlier in the session, family members of psychiatric patients shared how painful it can be to see their loved ones go unmedicated in a psychotic state, and how, in many instances, they were able to return home once they began taking medication.
“Sometimes, time for a patient is valuable in terms of developing a relationship with their provider and coming to a treatment plan with the provider on a voluntary basis,” said Jill Olson of the Association of Hospitals and Hospital Systems. In other cases “time really becomes the patient’s enemy, and they really get worse as times passes.”
This bill is an improvement for patients in the latter category, Olson said.
However, none of the people who testified at the public hearing who had experienced involuntary medication testified that they felt it was in their best interest. Many say the process caused lasting trauma. Opponents say consolidating the involuntary medication and treatment hearings would give patients less opportunity to voluntarily accept medication.
Jack McCullough, director of Legal Aid’s Mental Health Law Project – which represents patients in involuntary treatment and medication proceedings before the courts – said the changes will lead to more petitions for involuntary medication and potentially greater coercion in the mental health system.
“It’s terrible,” McCullough said. “It’s going to lead to a huge increase in involuntary medication filings.”
The bill also changes current law to initiate review of a case when a psychotic episode lands someone in a hospital emergency department, instead of when a bed in a secure psychiatric facility becomes available. The bill would clarify that a patient awaiting a judicial review is in custody of the Department of Mental Health regardless of the setting.
Acutely psychotic patients often wind up in hospital emergency departments, in many cases for significantly longer than allowed by law. The bill would now require that patients receive an emergency examination within 24 hours to determine if they should indeed be held, rather than the one working day allowed by current law.
It also mandates a probable cause review for the state’s application to have a person held for involuntary treatment within three days of the request being filed.
The purpose is to ensure the state has legitimate reason to seek a commitment order. However, if there is good cause for delay, the application cannot be dismissed just because a review was not completed in the three-day window.
Only a small number of people in the state come in contact with the involuntary treatment process, but its use raises difficult ethical issues and elicits strong emotions from patients, their families and the clinicians and nurses who provide treatment, as well as members of the public.
In January Vermont had 52 involuntarily committed patients at psychiatric facilities across the state, according to figures collected by the Department of Mental Health. Only 14 of those patients being held against their will were under court orders to be medicated involuntarily.
Despite their small numbers, caring for the acutely mentally ill in hospital settings is difficult and resource intensive. Following the post-Irene closure of the Waterbury State Hospital, the Department of Mental Health contracts with four of the state’s private nonprofit hospitals to provide that care.
There is concern that the changes to the judicial review process will tax court resources, but it is hoped that the changes to the state’s involuntary treatment laws, combined with the 10 additional beds that will be available for acute psychiatric patients when the Berlin State Hospital opens this summer will reduce the time people spend in emergency rooms awaiting and improve outcomes for patients.
Lawmakers and stakeholders said they plan to keep a close eye on the judicial review process and the new hospital to see if that’s the case.
