November 1st, 2013

Involuntary medication law sparks legal battle

A legal battle that has been brewing in Vermont over the state’s involuntary medication law is picking up steam – with one side saying the law delays necessary treatment of mental health patients and the other saying the law protects the civil rights of patients under state care.

A court order is required before a mental health facility can medicate a patient who is refusing medications.  A separate hearing to commit a patient to state care must take place before the medication hearing can happen. The patient also has 30 days to appeal the decision.

The process takes an average of 45 days, and often, it’s closer to 60 days before the process is completed, says Paul Dupre, Vermont’s mental health commissioner.

“It’s actually preventing their right to get treatment,” says Fritz Engstrom, M.D., medical director of Brattleboro Retreat, a mental health facility in Brattleboro, Vermont, that contracts with the state to provide treatment for those under state care. He says the average so far this year has been 80 days. “We just had someone who was in the hospital for 170 days before the order was able to be received,” he says.

Delays in the treatment of patients can be dangerous to the patient, other patients and hospital staff, says Engstrom, who adds that a staff member recently suffered a concussion from an unmedicated patient. “As clinicians, what happens is we feel our hands are tied because people are deteriorating in the hospital and getting worse and just keep being in the hospital,” he says. “For this small cohort of patients, just being in the hospital itself is not particularly therapeutic.”

It is also putting hospitals at risk of losing Centers of Medicare & Medicaid Services certification because CMS requires that patients be receiving active care, says Dupre.

But taking away a person’s right to refuse medication is an infringement of a patient’s civil rights, says John McCullough, J.D., project director of the Mental Health Law Project, part of Vermont Legal Aid Inc., which represents patients in these hearings

“There are a couple of things that are overlooked in this argument. One is that involuntarily medicating someone is a big, big deal,” says McCullough. “The right to not be treated is a right with major constitutional implications and the Supreme Court of Vermont and the Supreme Court of the United States have held that involuntary confinement for purposes of mental health treatment is a massive deprivation of liberty. It needs a serious showing of need before it can be justified.

“The Vermont Supreme Court has said that involuntary medication is an even greater intrusion on someone’s individual liberty than involuntary commitment,” he says. “It’s a major imposition on someone to take away the right to refuse medical treatment.”

He says that hearings on involuntary medication applications are required to take place within seven business days and a decision is usually made when the hearing takes place. About 40 applications are filed per year, he says.

Vermont Gov. Peter Shumlin has said he wants to see changes to it at the state’s legislative session in January, although there is nothing in writing yet.

The state’s Department of Mental Health has been holding meetings with providers, patients, consumers and other stakeholders on the law. A more formal meeting with constituents will happen in November, Dupre says.

By Rivkela Brodsky

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