Informed Consent and Civil Commitment in Emergency Psychiatry

Antipsychotic medications can be administered without a patient's consent in 3 situations: if there is an emergency, if the patient is conserved, or if a medication capacity hearing has found the patient incapable of refusing medication because of a mental disorder. An emergency is a situation in which action to impose treatment over the person's objection is immediately necessary to preserve life or prevent serious bodily harm to the patient or others and when it is impracticable to first gain consent.

Psychiatric EDs receive many patients brought in by law enforcement officials. It is not unusual for patients to be held in the ED against their will. Detaining these persons when their mental health has deteriorated may lead to them becoming agitated. If the patient begins to express his agitation verbally or behaviorally and does not respond to verbal de-escalation, the situation may become dangerous.

In this case, it may be necessary to restrain the patient in order to protect his and others' safety. When restraining a patient, most facilities will also administer emergency psychotropic medication to manage the psychosis or agitation; doing so allows for more rapid removal of restraints and provides a safer environment.

Indications for seclusion or restraints are clearly defined and are similar to those for administering involuntary medications. Restraints physically control a patient's activity in order to protect the patient or others from injury; they are typically applied to the extremities near the ankles and wrists. Seclusion is the involuntary confinement of a person alone in a room or area in which the person is physically prevented from leaving.

Seclusion and restraints should be used in emergency situations only to ensure a safe environment when less restrictive interventions to protect the patient and others from imminent risk of harm are ineffective. These protective measures should not be used for punishment, coercion, discipline, retaliation, or staff convenience or because a patient previously required them or has a history of dangerous behavior.

Protocols and documentation for the use of seclusion and restraints vary from state to state and from institution to institution. The following recommendations are from the State of California⁶ and include requirements from the Joint Commission on Accreditation of Healthcare Organizations.⁷ These recommendations state that a physician must evaluate the patient face-to-face to determine the need for seclusion or restraints within 1 hour after initiation of the intervention.

During the first hour, a staff member assigned to the patient must continually monitor the patient in seclusion or restraints face-to-face. However, for a patient in seclusion, after the first hour and with the patient's agreement, the continuous monitoring can be done by using simultaneous video and audio equipment. The well-being of the patient should be assessed at intervals of 15 minutes or less.

For patients in restraints, extremities are examined for swelling or color change and circulation is checked every 15 minutes. Range of motion of the extremities should be checked and documented every 2 hours. Toilet facilities should be offered at least every 2 hours. There must be a face-to-face reevaluation every 2 hours for minors and every 4 hours for adults in order to determine the need for continued use of seclusion or restraints.

Another important aspect of seclusion and restraints is debriefing—a discussion between the staff and the patient about the circumstances that resulted in the use of seclusion or restraints. Debriefing should occur within the first 24 hours after these interventions are discontinued. Also discussed during debriefing are ways in which a similar incident could be avoided in the future, possible intervention strategies to be used by staff to prevent any future need for these protective measures, and alternative coping methods for the patient when he is feeling agitated or aggressive.

Some argue that involuntary hospitalization violates a person's civil liberties. Others believe that involuntary commitment helps protect not only the public but also the person being hospitalized: it can help ensure that the patient receives appropriate treatment and does not harm himself, and it can possibly reduce homelessness. Psychiatrists take a person's right to be in control of his life seriously, and overriding a person's free will is not taken lightly.

The state's authority to involuntarily hospitalize persons with a mental illness stems from 2 principles of government: parens patriae and police power. Parens patriae, which translates as "father of the country" or "parent of the country," allows the state, in the role of parent, to act on behalf of a mentally ill person who is judged to be unable to provide self-care.⁸ The authority of police power is granted to states to maintain public safety.⁸ Police power can be invoked when a person represents a danger to himself or others.

When evaluating a patient with a mental illness, psychiatrists are required to choose the least restrictive environment into which the patient can be discharged safely. The development of atypical antipsychotic medications, the emergence of community-based mental health programs, and the adoption by many states of outpatient commitment laws that require a person with a mental illness to take medication as a stipulation of living in the community have greatly reduced the need for civil commitment.⁹ Although psychiatrists would prefer patients who would benefit from hospitalization to agree to it voluntarily, there are some situations—such as when the patient is violent, suicidal, or unable to care for himself—that require involuntary commitment.

When a violent, psychotic, or suicidal patient is brought to an ED, a psychiatrist typically evaluates the patient for dangerousness and the presence of a mental illness. A psychiatrist who decides to hospitalize a patient involuntarily generally must consider whether the patient has displayed loss of emotional control; whether there is clear evidence of a psychotic disorder; and whether there is evidence of impulsivity with serious thoughts, threats, or plans to physically harm himself or others. The evaluation should be documented as thoroughly as possible.

Civil commitment laws are formulated by the state legislature, and each state has its own requirements for hospitalizing a person involuntarily. The initial involuntary hold can be placed by a qualified mental health clinician and does not require immediate judicial review. After the patient is admitted to the hospital, there is a period during which a judicial review, often called a probable cause hearing, must take place to ensure due process.

During such a hearing, the mental health clinician must demonstrate that the patient is a danger to himself or others (police power) or is unable to provide self-care (parens patriae). The legal standard of proof is often probable cause. For these hearings, probable cause is sufficient reason based on information—which could be from the patient, records of his recent actions, or a reliable collateral source (family or police officer)—that shows the patient has a mental illness that causes him to be dangerous or gravely disabled.