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At Your Defense: Should EPs Discharge Detained Patients Prior to Psychiatric Evaluation?

Reyes, Carlo MD, JD

doi: 10.1097/01.EEM.0000431342.76139.15
At Your Defense

Dr. Reyes is the vice chief of staff and the assistant medical director of emergency medicine at Los Robles Hospital and Medical Center in Thousand Oaks, CA. He is also a clinical professor of pediatrics and emergency medicine at Olive View/UCLA Medical Center, a health law attorney with Boyce Schaeffer, LLP, in Oxnard, CA, and a founder and the CEO of , which provides medical-legal education for doctors starting in medical school, through residency training, and beyond.





Emergency physicians practice within the scope of many subspecialties, but they must also decide when a subspecialist should take over. One example of this dilemma is emergency psychiatry. The alarming lack of access to outpatient mental health services has caused patients with mental illness to present to the ED with acute psychiatric conditions requiring stabilization.

EPs routinely assess patients for risk of suicide and homicide, and detain them until mental health providers can place an involuntary hold. State involuntary commitment laws are written to balance a patient's rights to liberty with his safety and society's so only imminently dangerous patients are held against their will for acute psychiatric treatment.

Unfortunately, the legislative intent of state involuntary commitment laws to provide acute mental health treatment is often not realized because of the scarcity of inpatient psychiatry beds, leaving patients to wait days in EDs without any meaningful psychiatric treatment. Boarding psychiatric patients worsens the ED crowding problem, leading EPs to release a patient who no longer appears imminently dangerous after a “brief” stay in the ED. EPs should understand the legal implications of state involuntary commitment law and federal EMTALA law before releasing these patients, however.

Read the involuntary commitment law carefully. Involuntary commitment laws vary considerably by state. Some allow EPs to write holds while others limit the EP's authority, reserving holding authority to psychiatrists and approved mental health providers. The California Lanterman-Petris-Short Act allows each county to designate who can place a 5150 hold, which is usually reserved for peace officers, providers at approved psychiatric facilities, and members of a mobile crisis team.

The immunity provision in section 5154 protects a psychiatric facility and the treating psychiatrist and psychologist from civil and criminal liability for a patient's actions if released before or at the end of the 72-hour hold but only if the treating psychiatrist or treating psychologist in agreement with a psychiatrist believes the patient does not meet 5150 hold criteria. All concerns, including disagreements among providers, must be documented, and only a psychiatrist acting as the medical director of the psychiatric facility can overrule any objection to break the hold and release the patient.

Section 1799.111 of the California Health and Safety Code provides a separate immunity provision to protect EPs and non-psychiatric facilities from civil or criminal liability for detaining a person up to 24 hours pursuant to 5150 as long as the EP believes the patient meets 5150 criteria and has made documented attempts to seek psychiatric placement. A second immunity provision under Section 1799.111 protects EPs and non-psychiatric facilities from actions of patients released anytime during the 24-hour detention period, but only if the patient is not admitted to a general medical or psychiatric hospital and the EP's “face-to-face examination” or a psychologist's examination in agreement with an EP determines that the patient no longer meets 5150 hold criteria.

This section does not expressly protect EPs from releasing patients placed on a 5150 who are still in the emergency department awaiting transfer to a psychiatric facility. A hospital's medical director can overrule the EP's objection to break the hold if there is disagreement between the EP and psychologist, and all concerns must be documented.

Immunity provisions may not protect against negligence claims. In Mercer v. HCA Health Services of Tennessee, Inc., a psychiatrist released a patient from involuntary commitment two days after being placed on a hold in the emergency department. One day after his release, he committed suicide. The appellate court reversed the lower court, allowing the plaintiff-appellant to inquire about the psychiatrist's process for determining that the patient did not meet hold criteria. The court reasoned that a psychiatrist who does not adhere to standards of care in releasing a patient from involuntary commitment is not protected by the immunity provision. The Tennessee Code reads, in part, that “all persons acting in good faith, reasonably and without negligence … shall be free from all liability, civil or criminal, by reason of such acts.”

The immunity provision is intended to enable psychiatrists to make good-faith involuntary commitment determinations without fear of liability, but immunity provisions should not excuse negligent decisions. Similarly, immunity provisions like Section 1799.111 will not protect EPs who negligently release patients prior to psychiatric evaluation.

Section 1799.111 requires EPs to make a “face-to-face” determination or concur with a psychologist's determination, and providers must “enter their findings, concerns, or objections in the person's medical record.” An EP's medical decision-making must be documented, which should demonstrate an adherence to a relevant standard of care. The relevant question then becomes, at what point should the EP defer to a psychiatrist's expertise, which may dictate the standard-of-care analysis for releasing patients from detainment?

EMTALA: The duty to stabilize an acute psychiatric emergency. In Goodvine v. Pasha, an inmate was transferred to the emergency department to evaluate an acute loss of consciousness after sustaining self-inflicted lacerations. The inmate's lacerations were repaired, but he was released despite significant anemia on lab studies and nursing notes documenting that he was suicidal. Shortly thereafter, he attempted suicide again, and was transferred to a different facility where he was admitted for a blood transfusion. The plaintiff filed a complaint in federal court under EMTALA, alleging that the hospital and physician failed to screen and stabilize the patient's suicidal state and significant anemia adequately.

The federal district court further exercised its supplemental jurisdiction to hear the plaintiff's state-based negligence claim. (See FastLinks for my article on the impact of federal courts hearing state-based medical negligence claims.)

The federal court screened the plaintiff's complaint, brought in forma pauperis, meaning in the manner of a pauper; US code requires federal district courts to screen and dismiss complaints that are “frivolous and malicious” when the plaintiff cannot pay for statutory filing fees. The court allowed the case to proceed because acute psychiatric conditions are emergency medical conditions under EMTALA, and a patient who is a danger to himself or others because of a psychiatric condition must be stabilized prior to discharge. This court's interpretation of EMTALA means hospitals should stabilize emergent psychiatric conditions or transfer the patient to a psychiatric facility.

EMTALA law does not apply to admitted patients unless you practice in the Sixth Circuit, where the court in Moses v. Providence Medical Center held that admitted patients must also be adequately stabilized before discharge or admitting physicians may violate EMTALA. A psychiatrist's decision to release an admitted patient from involuntary commitment, therefore, does not violate EMTALA, but an EP's decision to release a detained patient pending transfer to a psychiatric facility may violate EMTALA's mandate to stabilize all emergency medical conditions.

Ultimately, premature discharge of these patients should be done with extreme caution when the emergency medical condition may not be sufficiently stabilized, as defined by EMTALA, when patients receive no coordinated psychiatric care in the ED, and when an early discharge further limits a patient's access to mental health services.

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