Proposed changes to Vt. legislation address mental health issues

By Phyllis Hanlon
February 1st, 2010

Vermont’s Department of Mental Health (DMH) has proposed some legislative changes in hopes of expediting and simplifying processes involving individuals with mental health issues.

One of the existing laws allows voluntary admission for individuals under the age of 14 if they give written consent with the understanding that they will become inpatients and are doing so under no duress. DMH Commissioner Michael Hartman reports some misuse of this practice. “We were seeing situations where six-year olds were signing consent,” he says. “I was given a copy of a consent signed with a crayon.”

DMH is suggesting that individuals under the age of 14 be admitted with the consent of a parent or guardian. Hartman says, “From our point of view, children 13 and under undergo a civil emergency examination process.”

Hartman says that this proposal faces an uphill climb. “Advocates are concerned that we’re violating the rights of the patient,” he says. “But it’s consistent with parity on the medical side. Children are routinely admitted [for medical illnesses] under parental consent.”

DMH is also recommending stricter criteria and faster processing of forensic evaluations of criminal defendants who use “Not Guilty by Reason of Insanity” as their defense. Hartman says approximately 120 individuals undergo competency/sanity assessments each year; half that number are found to be competent.

According to Hartman, DMH contracts with five psychiatrists to evaluate individuals. “The turnaround is quick. Forensic admissions are in and out in 15 to 25 days,” he says. “If a person is found sane and competent, he probably is not as likely to meet criteria for inpatient admission. Yet the court is ordering people into psychiatric care when they don’t meet criteria.”

Hartman relates an incident in which a person was sent to the hospital for 30 days and should have been there for five at the most. “This indicates we have a challenge in terms of the number of days we are using for people who are competent/sane, which equals one or two beds per year. In terms of wanting to not expend resources when they are not needed, this is pretty significant,” he says, noting that a one-day hospital stay costs in excess of $1,000.

“We established the sense that this should be more of a clinical decision, rather than a legal one.” He adds that beds should not be occupied needlessly should a medical crisis situation arise in the state.

Thomas A. Powell, Ph.D., corrections clinical director for 18 years, now in private practice in Shelburne, Vt., supports the amended language, but wonders what options the state has for dealing with this population. “They have two choices: the local jail, which is not always that local and Vermont State Hospital,” he says. “There’s nowhere in between. It’s a social problem not being dealt with.”

Powell cites the peril involved for staff and patients at the state hospital when criminal defendants intermingle with other patients. “These people assault staff. Vermont State Hospital is not equipped to deal with criminals,” he says, noting that the forensic population has become a forgotten group as the state hospital has downsized and the community mental health centers endure budget cuts.

A related law that addresses access and capacity as it pertains to medication has come under DMH scrutiny. According to the current language, the court determines the medical and psychiatric treatment the individual will receive. DMH seeks to restore some control to the individual by defining “assent” as “express or implied willingness to undergo health care treatment despite a lack of capacity to make medical decisions.” The definition would also presume assent if a person is “not conscious or otherwise physically able to express an opinion.”

Additionally, DMH has asked to insert into the law a definition of “capacity” as the “ability to understand the information relevant to a decision, apply the information to one’s own situation, appreciate the nature of the decision and its consequences and express a choice about the decision.”

Using these definitions as a guideline, DMH recommends a psychiatric evaluation to determine the appropriate treatment and whether the individual has the capacity to make decisions regarding medication. “If the person is lacking capacity and has a need for medication, a second assessment is needed to affirm or deny. This would be referred to a treatment panel consisting of a psychiatrist, lawyer and the consumer,” Hartman says. If medication is recommended, a two-week course of a short-acting agent would be used, followed by a re-evaluation of its effectiveness in restoring some capacity to the person. While there is some concern about a person lacking capacity but in need of treatment, the panel gives an added layer of protection for the patient, according to Hartman.

“Frankly, we expect a lot of resistance to this bill,” says Hartman. “When the last changes were made to involuntary medication, we faced an intense fight.”

As the future of Vermont State Hospital faces uncertainty, DMH hopes to define the commissioner’s powers and duties regarding oversight of this facility. Of concern to the legislature are appointments that former Commissioner Susan W. Besio, Ph.D., made to the governing board at the state hospital in 2003 following a much-publicized suicide. “She added public members to the governing board at the state hospital,” says Hartman. “There was a question of whether they were legally appointed. The [legislative] committee questioned the ability of the commissioner to make rules.”

DMH proposes an “explicit statute” that establishes a governing board for the state hospital, as well as any other residential psychiatric facility the department owns and operates and which is separate from the governance structure of Vermont State Hospital. This statute would give the commissioner the right to appoint public members, along with representatives of state agencies, to the governing board.

Should the statute become law, Hartman would follow the “same line” as the former commissioner. He proposes a board comprising a patient, former patient, family member and representatives from designated agencies, including DMH, Health and Human Services, Department of Corrections and Developmental Disabilities. “The board will be dominated by state employees,” he says. “We haven’t found a way to run a state facility by public members.”

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