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InFocus: The Risks of Discharging Psych Patients AMA

Roberts, James R. MD

doi: 10.1097/01.EEM.0000488822.33189.f3
InFocus

Dr. Roberts is a professor of emergency medicine and toxicology at the Drexel University College of Medicine in Philadelphia. Read the Procedural Pause, a blog by Dr. Roberts and his daughter, Martha Roberts, ACNP, CEN, at http://emn.online/ProceduralPauseEMN, and read his past columns at http://emn.online/InFocusEMN.

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It's difficult enough when a patient wants to leave against medical advice, but the issue becomes much more problematic when a psychiatric patient wants to leave before the clinician believes he should. Nothing is ever easy in the ED, but this situation will truly test the emergency physician's mettle in balancing medical necessity, the patient's rights, and the safety of others.

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Patients' Rights and Psychiatrists' Duties: Discharging Patients Against Medical Advice

Gerbasi JB, Simon RI

Harv Rev Psychiatry

2003;11(6):333

This article is from a psychiatric journal and deals primarily with a psychiatrist's problems with patients leaving AMA from an inpatient service, but it is of great interest to EPs. Even a superficial reading immediately convinced me that these issues are also pertinent to ED practice. It is certainly no secret that voluntary psychiatric inpatients are discharged AMA at a relatively high rate compared with the general medical population. Studies reveal that between six percent and 35 percent of psychiatric patients who initially have been voluntarily admitted to the hospital will subsequently leave against medical advice.

Such patients often have medical problems as well, precipitating serious dilemmas for the psychiatrist. Patients who leave AMA are more anxious, hostile, and aggressive than those who remain in the hospital until they are discharged, but psychiatric patients are motivated to leave the hospital by mistrust, denial, fear, paranoia, and irrational dissatisfaction with their treatment. And their financial issues can be even more troublesome.

The authors begin their discussion with a 32-year-old man admitted to a psychiatric unit because of a drug overdose. The managed care organization that was handling his insurance denied further benefits after a few days because they concluded hospitalization was no longer necessary for medical or psychiatric reasons. The patient still had psychiatric issues, however, and was not ready for discharge, according to the psychiatric staff. The hospital business office informed the patient he was responsible for his bill, and he demanded to leave. This brings up a common conundrum when a mentally ill patient demands to leave the hospital against medical advice, and it is not in his best interest. An often insurmountable divergence exists between the patient's right to privacy and autonomy and the psychiatrist's (or any physician's) duty to treat. All AMA patients are at risk for their own well-being, but psychiatric patients may pose risks to others.

Lengths of stay supported by many insurance companies do not include the many weeks of therapy required to render acutely psychotic patients able to fend for themselves. Setting up outpatient support systems can take weeks. The initial admission may have been voluntary or involuntary for a limited time because of commitment laws, but it's more difficult to keep patients for prolonged periods if they do not agree with that medical decision. The controlled environment and structure of a hospital setting are much more important to psychiatric patients than they might be for patients with pneumonia, HIV, or drug abuse. Outpatient services and support for the psychiatric patient are difficult to orchestrate effectively, impossible if the patient is not cooperative.

Psychiatric discharges are often decided on the spur of the moment and without rational thought by the patient. The situation does not lend itself to long-term planning or assessing the patient's capability to appreciate the potential complications should he leave. The decision is made precipitously, and there is little the hospital can do if the patient was a willing admission or the involuntary commitment time has expired.

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Patient Rights

Voluntary admissions comprise approximately 75 percent of the 1.6 million admissions to psychiatric facilities in this country. The voluntary admission procedure is most desirable and commonly used in many hospitals, even though the admission is not always truly voluntary. Many practical and logistical pressures are placed on psychiatric patients from family, police, lack of shelter or personal resources, the winter weather, and other entities that preclude the patient the absolute right to leave whenever he requests.

The test for an involuntary admission usually has to meet relatively standard requirements: the patient must be a danger to himself or others or is unable to care for himself. These are often gray areas, subject to much physician interpretation and patient manipulation and often vigorously fought by some insurance companies, presenting a difficult decision for all involved.

Even when the involuntary commitment criteria are clear-cut, the length of this forced hospitalization is usually limited (72-120 hours) without complicated and time-consuming judicial review. Few hospitals have the time or the ability to routinely obtain or enforce prolonged involuntary admissions in a complex overburdened legal system. Often the good intentions of the physicians are thwarted when the initially psychotic or dangerous patient appears to have seen the error of his ways and is no longer an obvious threat. Extended involuntary commitment requires a physician to provide formal, detailed documentation about the involuntary commitment criteria and almost always a court appearance, so it's easy to rationalize and move on to the more pressing case of yet another psychiatric ED patient.

The neophyte clinician might assume there is an unstated belief or legal consensus that a mentally ill patient cannot be competent to give informed consent for his care simply because he has a psychiatric diagnosis. This is not true. Patients are by law considered competent until proven otherwise. This is true even of a schizophrenic or bipolar patient who was found wandering around the subway, hallucinating and talking to himself. The law presumes all adults competent until proven otherwise, and no proof of incompetence becomes problematic. Many psychiatric patients do not acknowledge their problem, and it's easy for the family also to be in denial. The psychiatric patient quickly learns how to manipulate the system and how to act competent enough to leave. Certainly a person who voluntarily seeks admission to the hospital is assumed to possess the mental capacity to understand the nature and implications of that decision, and is also capable of leaving at will and understanding the risks of that. Essentially, a voluntarily admitted patient “must be mentally competent;” otherwise, he would not have opted for admission in the first place.

The vagaries of the law and these complicated issues have given rise to a concept that encourages voluntary admission in hopes of facilitating treatment. Even if patients meet involuntary hospitalization criteria, many physicians prefer to make the admission voluntary because it involves less stigma and less paperwork and effort. A voluntary psychiatric admission is also less coercive and often avoids an adversarial relationship between the doctor and the patient. It allows the patient to acknowledge a desire for help, and increases patient involvement and personal responsibility for his disease. Essentially, he has bought into the treatment plan. A voluntary admission respects individual autonomy to a greater extent, and it is clearly the best scenario.

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AMA Discharges

Current law has great concern for protecting patient's rights, and psychiatric patients are included in this. Trying to balance mental health law and clinical care, however, often puts the physician's duty in competition with the patient's right to refuse care.

It is certainly also a mandate and an accepted standard that psychiatrists have a duty to provide competent patient care. The clinician must first assess whether the patient is a candidate for involuntary commitment. Then he must inform the patient, similar to protocols on the medical service, of any consequences of AMA discharge. The clinician must assess and document that the patient is able to understand that information. This may be readily accomplished on a medical service, but can be quite difficult in a psychiatric milieu.

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Involuntary Commitment

When all is said and done, the bottom line for an AMA request from psychiatric patients boils down to two options: Release the patient voluntarily or precede with involuntary commitment. The general test of involuntary hospitalization requires that there is a presence of mental illness, and the patient is a danger to himself or others or is unable to care for himself. All are gray areas, to be sure. These decisions often have to be made with minimal clinical data and under a specific timeframe. The authors believe that effective clinical risk management not only facilitates good care but limits liability.

The cornerstone of concern is assessing for violence. Most state courts provide immunity to clinicians who, after a properly documented evaluation, decide to hold a patient against his will as long as he has demonstrated that the patient is a danger to himself or others or is unable to care for himself. These authors also note that it is best to assume that the risk of being sued for false imprisonment is minimal. Certainly that risk is much less than the risk assumed when discharged patients decompensate or inflict violence to themselves or others. Malpractice suits alleging negligence because a patient is prematurely released and harms himself or others are common, while it is extremely uncommon for patients to sue for a false imprisonment. But they are often quite savvy, and can make the physician's life miserable. A physician must also inform a third party if his patient has voiced intent of harm. This is always tricky and fraught with HIPAA issues.

A number of risk factors should make the clinician more likely to opt for involuntary hospitalization. These include recent or multiple discharges from a psychiatric hospital, alcohol or substance abuse, a recent significant personal loss for the patient, panic attacks, acute anxiety, and insomnia. Some issues, like anxiety and insomnia, can be treated as outpatients. Their presence does not necessarily mandate hospitalization, but are merely risk factors for problems following an AMA discharge.

Some of the inevitable problems with AMA discharges can be anticipated. Contingency plans can be developed proactively in the inpatient setting before the patient abruptly decides to leave when he is not being involuntarily held. Enlisting a colleague not directly involved in a patient's care can also help provide a new perspective. Finally, if a patient does leave the hospital AMA, the psychiatrist should consider informing family members or significant others about the patient's AMA discharge. A real threat of violence should preempt concern about maintaining patient confidentiality or preserving a patient's right to participate in medical decision-making. The American Psychiatric Association's Principles of Medical Ethics say it is permissible to reveal confidential information if it is a psychiatrist's clinical judgment that there is a significant risk of danger to another person.

All physicians should be familiar with the Tarasoff ruling, which states that a physician must warn anyone who an outpatient threatens with harm. This duty can be first satisfied by involuntary hospitalization. It is important to note that an AMA discharge does not negate the clinician's obligation to protect third parties. One cannot ignore a patient's threat that he is going to kill his neighbor. (See sidebar.)

The American medical system has supported for more than 100 years the concept that every adult of sound mind has the right to determine what will be done with his body. This means that competent patients have the right to refuse treatment even when the treatment is clearly in the patient's best interest, even life-saving. Even psychiatric patients deemed competent have a right to refuse treatment, including antipsychotic medications and hospitalization. A truly competent patient cannot be forced to take antipsychotic drugs, even if the psychiatrist thinks they are required.

Treatment acceptance or refusal, however, is predicated on informed consent in the competent patient. The general rule of competency is that the patient possesses a degree of mental soundness necessary to make decisions about specific issues. Mental incapacity is defined as a functional deficit great enough that the person cannot meet the demands of the specific decision-making situation and cannot understand the potential consequences of the decision. The authors clearly state that a signature on an AMA form by itself does not mean that the decision was an informed one. Some would argue that an even higher degree of mental capacity should be required when a psychiatric patient is making a decision that the clinician considers unreasonable or dangerous. These issues all challenge the psychiatrist's knowledge and opinion about the patient's best medical interest while trying to balance the patient's right to privacy and autonomy. A patient with major recurrent depression or psychosis who is noncompliant with treatment and who has a remote history of suicide should be held to a more stringent standard for competence than the patient refusing admission for chest pain.

These authors' experience is that the most effective intervention to prevent an AMA discharge of a psychiatric patient is to mobilize the patient's family. Often a family member may be able to encourage the patient to continue with hospitalization when the physician has failed. A follow-up plan should be in place for patients who leave against medical advice and are deemed competent to make that decision, but many patients are uncooperative and not interested in following up or working with the clinical staff to develop an after-care plan.

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Malpractice Liability

The authors are careful to state that discharging a patient against medical advice may confirm some sort of protection to the physician, but it is not a free pass to legal immunity. The authors discuss cases where an AMA discharge of a psychiatric patient resulted in a legal action. Court rulings generally hinge on whether the doctor had a duty to commit the patient to the hospital involuntarily or a duty to release him AMA. If the discharging physician can clearly show in the medical record that the patient's ability to make an informed decision was done in a competent manner, an AMA discharge is generally protective for malpractice claims.

If a patient is deemed competent and demands to leave the hospital, the physician is obligated to inform him of the consequences and to allow the patient to exit. This is done under the caveat that the patient is not a clear danger to himself or to others and is able to care for himself. It is clear that the courts demand that physicians fulfill their professional and legal duties to the patient. It should always be the clinical staff, not merely an AMA form, that provides the patient with information about the potential consequences and risk of being discharged AMA.

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Financial Disincentives

Some managed care organizations and insurance companies will limit or deny payment for psychiatric services initially or after a certain length of time. The payor is not actually denying service, just stating that they will not pay for it. Many AMA discharges are precipitated by legitimate financial concerns and insurance companies do not mandate discharge, but blaming the managed care organization for failure to pay will not provide a viable defense. It is the treating physician, not the insurance company, who is responsible for determining if the patient's treatment and discharge from the hospital are appropriate. The courts have held that physicians have a duty to be patient advocates, and it can be argued that the physician's job is to try to convince the insurance company to pay for the continued hospitalization. Hospitals must continue to treat patients even if the insurance payment authorization is denied in most cases.

Comment: The next time you think you are having a bad day dealing with psychiatric patients, think about this article and have some empathy for your psychiatric colleagues. Most of us merely sign the involuntary commitment form for the overdose or suicidal patient and let the psychiatrist deal with it after the medical situation has been stabilized. Like many cases in medicine, the hard part begins after the ED visit. The patient's rights to autonomy and self-directed care often conflict with the true need for psychiatric treatment. The physician is smack in the middle of this no-win situation. This is coupled with the concept of litigation for premature discharge, failure to warn a third party about potential violence toward him from your patient, and overriding financial issues. The deck is clearly stacked in the psychiatric patient's favor because he is presumed competent until proven otherwise. It is not an easy task to prove incompetence on the medical record or to complete all the necessary steps to support a continued involuntary commitment.

Like the patient with chest pain who may be experiencing an MI, the psychiatric patient may be able to understand the risks of leaving the hospital prematurely and the benefits of continued hospitalization. A psychiatric patient's risk of harm to himself or others is an additional issue that requires further documentation. It's easy enough to tell the patient with chest pain that he may die from a heart attack if he leaves the hospital, but it may be a gargantuan task to convince a psychiatric patient that he is not able to fend for himself or that hearing voices telling him to jump off a bridge is not normal.

No easy answers exist for this dilemma. It is clear that psychiatric patients are prime candidates for a bad outcome should they be discharged AMA. It should be a rare case where an AMA discharge of a bona fide psychiatric problem occurs in the ED. It should be even rarer in a patient who presents with a true suicide attempt or one who has been violent. Paranoid schizophrenics do push people in front of subways after God told them to do so. If that patient was in your ED last night for an evaluation, you should make sure that your efforts and charting were squeaky clean, and the ED record, when read in court in front of the grieving relatives, demonstrates a careful, prudent, and conscientious ED evaluation. When in doubt, opt for involuntary commitment.

Sorting out the length of stay, ensuring reimbursement, garnering family resources, and arranging outpatient follow-up is the job of a psychiatrist. Fortunately, emergency physicians can generally punt these issues to our psychiatric colleagues. Thank God for psych crisis and those staffing it daily.

There is no magic way to predict who will commit suicide, and the patient who really wants to kill himself will succeed at some point. Bipolar patients are at greatest risk of successful suicide, so be careful with patients with that diagnosis.

The take-home messages are clear. First, your standard AMA form probably does not have enough information to show that a psychiatric patient is competent enough to make a decision to leave the hospital against medical advice. That's difficult enough with a straightforward medical problem. Psychiatric patients must be able to understand the risk, benefits, and consequences of their actions. Unfortunately, if something happens after they are discharged, the obvious answer is, “He was a psychiatric patient. How could he understand such an irrational or bad decision?” It's as though you are guilty until proven innocent as a physician.

Enlisting family members, cajoling, giving food and antianxiety medications, providing treatment for drug withdrawal, and offering creature comforts only go so far with a psychiatric patient. Psychiatric patients who threaten suicide, particularly with a plan and a firm attempt, are often successful when they are discharged. The general public believes that something more could have been done to save this psychiatric patient from his mental anguish and subsequent death. The AMA form that is meticulously crafted to address the nuances of the psychiatric patient will certainly help the EP. I wholeheartedly agree with the authors of this paper: It is easier to defend an involuntary hospitalization than it is to defend an AMA discharge of a psychiatric patient who subsequently hurts himself or someone else or committed suicide when all the red flags were raised by even the triage nurse.

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Dilemmas in Treating Psychiatric Patients

  • Patients have the right to refuse treatment, including surgery or life-saving treatment, even when the treatment is clearly in their best interest.
  • A psychiatric diagnosis does not automatically render a patient incompetent or incapable of refusing medical care.
  • Competence, not incompetence, is assumed unless proved otherwise.
  • Criteria for involuntary commitment are limited to a clear danger to self or others or inability to care for oneself.
  • Drug abuse and alcohol dependence do not by themselves provide criteria for involuntary commitment.
  • Most involuntary commitment laws expire in a few days (72-120 hours) unless pursued in court.
  • Most common allegations of negligence against physicians are failure to prevent patients from leaving the hospital, failure to invoke involuntary commitment, and failure to protect endangered third parties.
  • Endangered third parties must be notified of an AMA discharge or if a patient has made credible threats against them. Patient confidentiality and HIPAA laws do not hold in this case.
  • Patient confidentiality issues should not keep the physician from informing family and other interested parties of a bona fide AMA discharge. Most families do not understand mental health laws and expect that the hospital will “do what is right” or keep the obviously distressed patient safe “for his own good.”
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The Tarasoff Law: Duty to Protect a Third Party

All physicians should be aware of the Tarasoff statute, which is a law in most states. I urge all EPs to Google this important but complicated case; it's far too complicated for a brief summary. The intent of the 1976 statue is to protect potential victims from harm with the principle that the safety of society outweighs patient confidentiality. Usually it applies to psychotherapy, but it might come up in the ED.

This California case concerned a patient who told his psychiatrist that he planned to kill Tatiana Tarasoff, but the psychiatrist and the police were unable to stop it. If you hear a psychiatric patient specifically state he is going to kill a police officer, his neighbor, or his spouse when he leaves, it is your duty to inform that individual that such a threat was made if involuntary commitment is not pursued. HIPAA rules may not apply, but this is a complicated issue. The act of informing a third party of potential danger is one that is unfamiliar to most EPs. It's an important issue that has escaped most of us so far. If a patient is violent or expressing harm to someone else, keep him in the hospital by whatever means possible and seek help. An AMA discharge does not negate the physician's obligation to protect third parties. If an AMA discharge is planned, it may be best to always tell interested parties, such as relatives, because they assume you will hold their psychotic relative “for his own good.” This is yet another example where physicians can't win.

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