“Each year in my Harvard Law and Psychiatry class, we review the published ethical guidelines for lawyers in precisely these cases. It is clear that when the lawyer is in doubt about his client’s actual wishes, he or she is advised by the ‘legal experts’ to pursue the patient’s liberty-autonomy interest and argue against treatment. The consequences of this professional bias are greatest when there is no legal advocate on the other side to make the adversarial search for justice a reality.”
In Maryland, Janofsky said, it has recently become easier for psychiatric inpatients to refuse medications. “I have personally been in situations,” he said, “where we have attempted to have patients take medicines involuntarily, but a Court of Appeals decision changed ‘our understanding of how the statute works.’”
“Previously, a patient’s refusal to take psychotropic medication could be overridden if the medications were in the patient’s best interest and if they would cause that patient not to be dangerous if released from the hospital,” Janofsky said. “This went into litigation, in part with the support of the protection and advocacy agency in Maryland, which argued that [it] is not what the statute drafters’ intent was.”
On March 14, 2007, in Department of Health and Mental Hygiene v Kelly, the Maryland Court of Appeals held that the state statute required proof of dangerousness within the hospital before a competent person’s right to refuse medication could be overcome.
Since then, Janofsky said, “we have had several cases where patients in the hospital had clear delusions about people outside the hospital, made threats against them and wanted to hurt them, but we can’t medicate them.”
Another area of dispute, according to Decker, is overmedication. In 2007, PAIMI programs investigated 268 cases of inappropriate or excessive medication and 97 cases of inappropriate or excessive chemical restraints.
“We have investigated cases where 17 different medications were being administered to one patient, and we have encountered patients who have developed tardive dyskinesia from overuse of psychotropics,” Decker said. Sometimes when advocates question psychiatrists about the possible overuse or inappropriate use of medications, they become defensive and accuse the advocates of being anti-medication or lacking a clinical background.
“Our job is to say, here is the record, the record indicates all these medications, are they legitimate? That is an absolute necessary protection for many, many people who find themselves in that situation,” Decker added.
Advocates for families?
A significant subject raised in the Bruce case, according to Stone, was the lack of advocacy on behalf of families and psychiatrists.
“When the funds for Protection and Advocacy for Individuals with Mental Illness were first appropriated [1986], I suggested to Congress that they needed to appropriate twice that much money, so there would be someone on the other side to argue,” Stone said. “This is one of these things that happened in a reformist mentality—thinking that the only people who needed protection were the patients. They failed to see the need for someone on the side of family and on the side of treatment.”
Owen, the pro bono attorney helping Joe Bruce, agreed someone needs to represent the families.
“Right now, the publicly funded advocates argue against the families (as in the Bruce case), and the families don’t even know it, let alone have an opportunity to be heard. This is a skewed situation,” he told Psychiatric Times. “Also, Joe Bruce believes that the patient advocates should be confined to their original role of ensuring that the institutions aren’t abusing patients and should not be charged with ‘representing’ the patients, such that the patients refuse medication and are prematurely released back to the families, who don’t have the resources to help the patients or protect themselves from harm.”
Decker agreed that family members may be the “group left out of any kind of representation,” but he took issue with the point that hospitals need advocates.
“Most of the public hospitals have . . . lawyers,” he said. “And our experience is that private facilities have very aggressive lawyers representing them.”
He also refuted claims that advocates were the cause of William Bruce’s release from the hospital.
“The hospital [staff] didn’t file for recommitment, well that’s their job . . . they have their own attorneys; it’s their responsibility to abide by Maine state law.”
In response, David Proffitt, former superintendent at Riverview, said, “It is our responsibility to engage a client in treatment and develop a therapeutic alliance from which we can influence them to be amenable to the health care provider’s recommendations. In that way, clients can benefit from the best treatment that can be offered. But we have pretty strict guidelines in Maine, as does everybody in the United States, as to when we can provide that treatment without the consent of the individual.
“The current law in Maine allows involuntary medication under specific guidelines and would allow us to recommit an individual at the end of their commitment stay if we have evidence that they continue to be dangerous to themselves or others—that’s observable evidence, not theory,” he said. “In Mr Bruce’s case, there was no evidence from which to ask for recommitment or to involuntarily medicate. There has to be a standard of imminent harm to involuntarily medicate. William Bruce never expressed signs or symptoms that a reasonable and prudent medical professional would say he is at imminent harm.”
Although emphasizing that “our advocates do a very good job at Riverview generally,” Proffitt said they made some mistakes in how they handled William Bruce’s case and have learned from it.
“The advocates overly supported Mr Bruce in getting his view expressed that he wasn’t ill to the point where it didn’t help him. I think the advocates are much more cautious now and use some discretion on how far they go to help a person be heard.”
What to do
Following the tragedy in his family, Joe Bruce, assisted by his attorneys, embarked on a mission to change some of Maine’s laws.
In Maine, as in many American jurisdictions, laws were put into place 30 years ago to protect the civil liberties of patients and impose strict patient confidentiality, according to the press statement from Fulbright & Jaworski. An unanticipated negative effect is to exclude altogether the families of adult patients from all treatment, confinement, and release decisions.
Such laws, Stone said, reflect the views that parents often are the chief enemy of their children and that parents are the cause of their children’s mental illness and consequently, should not be involved in any way in making decisions about their treatment. Those views, he added, belong to a time in psychiatry when mental illness was about the politics of the family, instead of the biological understanding of what causes mental illness.
“We should be past that time,” he said.
In Maine, Joe Bruce convinced the legislature to enact LD 1119, among other laws. It allows a mental health professional to disclose information about the mental or medical status of a person who may be affected by another individuals’ conduct and makes this notification a requirement for those who are to care for the patient and who may be put in dangerous situations.
As an alternative to forced treatment, Decker said P&As are big proponents of advance directives. “The concept,” he said, “respects the rights of the individual but also, if it works well, provides both protections for the patient and some ability to treat that person if they deteriorate at a later time.”
In the midst of all the controversy surrounding the Bruce case, Proffitt commented, “The current presumption is that the person can make all the decisions about their care, but I do believe that these illnesses sometimes compromise that capacity. We need some kind of law that allows alternative decision-making authority; this would help ensure that people have access to treatment that their illness might stop them from appreciating. But the devil is in the details, and I don’t know how you write that law and not risk infringing upon people’s rights.”
