By Hon. Nathaniel Schlicher, MD, JD, FACEP

Associate Director, TeamHealth Patient Safety Organization; Regional Director of Quality, TeamHealth Northwest; Emergency Physician, St. Joseph’s Medical Center, Tacoma, WA

Psychiatric boarding is the quaint term for the long-term warehousing of the mentally ill in EDs and medical wards, which is the result of a lack of adequate mental healthcare resources in the United States. The Great Recession reduced expenditures on mental health by billions of dollars, pushing an already-depleted system to the breaking point.1

In turn, practitioners turned to boarding, starting care in theory in the ED while waiting for a bed to become available.

Unfortunately, many of these patients increasingly were held for days, months, and even nearly a year in EDs and medical wards while awaiting the mystical inpatient psychiatric care bed.

Thousands of Americans depended on this crutch to care for their loved ones, frightened of what would happen if they were turned away. But what would happen if it was now illegal to warehouse patients? Would EDs discharge patients to the street? Would resources that had been missing for years and cost hundreds of millions of dollars appear suddenly? What would the providers be able to do legally when caring for these patients? In 2014, Washington state decided to figure all this out on the fly with a legal grenade.

Facts of the Case

Washington state created a unique mental health detention process compared to most states. In contrast to the normal physician detention, or “pink slips,” used in many states, Washington uses Designated Mental Health Professionals (DMHPs), agents of the county who make detention decisions.

These individuals, generally social workers, consult after the initial physician evaluation and process the first 72-hour detention. Then, they advocate in front of an administrative law judge for an extension to a 14-day hold. When a bed is not available, they assign a patient to a Single Bed Certification (SBC) that for purposes of the state’s bed certification requirements converts a medical bed in an ED to a psychiatric bed. This, despite no change in the resources and the fact that many of these beds exist in critical access hospitals without psychiatrists, orderlies, or other mental health resources.

In February 2013, the public defenders who represent detained patients filed a petition against the State of Washington and Pierce County, arguing on behalf of their clients that they were being held illegally under the SBC program without hope for psychiatric treatment. They alleged, and the state agents agreed for the most part, that care in the SBC locations was not to the level of care patients would receive in an evaluation and treatment center or psychiatric hospital bed.

Unconstitutional Deprivation of Liberty

A court commissioner who heard the case found that the practice of psychiatric care was unconstitutional.2 The Pierce County Superior Court affirmed the decision in June 2013. The case was appealed and expedited to the state Supreme Court.

The civil commitment process requires that a person who is detained and thus deprived of their civil liberties receive treatment that “will give each of them a realistic opportunity to be cured or improve his or her mental condition.”3 Failure to have adequate resources, in fact, is not a rational reason to warehouse patients, according to the court.4

The court ruled that the practice of SBC to a non-psychiatric facility did not give the patient a realistic opportunity for cure or adequate treatment to warrant the deprivation of civil liberties for involuntary treatment. As a result, the court, in effect, made the practice of psychiatric boarding unconstitutional.

The initial ruling required that within 20 days, any patient not in an approved psychiatric bed could not be detained for mental health treatment involuntarily.

Although the appellants were satisfied with the decision to make the practice unconstitutional, they feared for the patients’ safety with the court’s initial proposed timeline of 20 days for remedy to such a complex medical issue.

Addressing hundreds of millions of dollars in backlogged physical bed capacity, understaffed mental healthcare teams, and generalized lack of coverage could not be resolved that quickly. As a result, the state, in concert with the appellants, requested and were granted a 120-day stay of implementation to address the problem.

In so doing, the appellants identified 120 beds of increased capacity that they could bring online in that time to address the court’s concerns.

Legislative Remedy

The legislature elected to intervene during its next session, both helping and hurting the cause. Positively, the legislature recognized the lack of funding and invested $100 million over the next two years to add capacity, improve staffing at state facilities, and pay for an outpatient involuntary treatment program.5

Unfortunately, the legislature decided to create a new SBC process that requires hospitals to attest to their ability to provide psychiatric care in a non-psychiatric bed to meet the constitutional requirements.6

Although this increased the care provided to patients and restored the ability to detain patients when there was a lack of beds, it created another temporary fix without ongoing enforcement.

Contempt of Court

As many expected, the practice of psychiatric boarding returned shortly to the state, despite increased resources. Practice habits essentially have risen to levels previously seen.

In an interesting twist, the county court commissioner who heard the initial suit held a hearing in June. In that ruling, he deemed the state hospital CEO and the executive director of Optum, the county mental health provider, to be in contempt of court and ordered them to jail if they did not admit a patient on an SBC.7

One week later, the Pierce County Superior Court overturned the ruling and stayed all further contempt of court hearings until the state and Optum created a plan to resolve the resource issues.8

The parties currently are working on a plan to address the capacity issues, but a rapid resolution is not expected. Regardless of the future, the possibility of bloviating administrators and failing regulators going to jail makes even the most cynical physicians smile a little.

Fighting Psychiatric Boarding

No practicing physician enjoys the art of psychiatric boarding, but the remedies often are very expensive and outside of our control.

The possibility that providers and patients collectively could challenge the practice of psychiatric boarding as unconstitutional to advocate for expanded resources is a tantalizing idea.

Although each state has different civil commitment laws, the underlying fundamental concept of deprivation of liberty and the case law upon which it is based is federal in nature.

Thus, the remedy for unconstitutional deprivation is in play under federal law and it will depend upon the individual case and interplay with the state law on SBC to determine if a legal challenge would benefit clinicians and their patients in each care location.

In Washington, the state medical association and the state chapter of the American College of Emergency Physicians joined an amicus curiae brief in support of the patient appellants to help advocate for additional resources.

For patients, this ruling presented in its initial form a substantial risk: Patients presenting with grave disability and real potential for self-harm or harm of others could be discharged to the street with no resources despite meeting involuntary detention criteria. The risk to the patient is all too real in these circumstances.

We’ve seen these tragedies play out in the news, such as the attack on a Virginia state senator by his son after no bed was found in the community and he was discharged to the street.9 Virginia’s solution was to mandate the state hospital take the patients in the future if no beds were available in the community. Given the national shortage of beds, the likelihood that this will be a long-term solution remains small.

The idea that we must turn away a patient in a true psychiatric emergency due to lack of capacity goes against everything else we do in medicine. Yet it is the real risk that our patients confront if the practice of psychiatric boarding is found unconstitutional and the practice prohibited.

Provider Risk: Unlawful Detention?

The questions of provider liability and criminal risk for possible unlawful detention and false imprisonment were not litigated in this case, but are concerns of many providers. In the instance in which psychiatric boarding has been declared unconstitutional, can the provider be exposed to liability if it holds a patient pending a bed availability? The answer is unclear.

Arguably, when acting under the auspices of the Involuntary Treatment Act (ITA) as written with the single bed certification, the answer likely is no.

However, the existence of an illegal law is not an absolute bar to liability or prosecution, but a defense. Thus, one can imagine the possibility of litigation, even if the eventual outcome would be a finding for the physician. This is a risk that leaves many uncomfortable with the current SBC in Washington.

However, if a provider, in the setting of no beds and no SBC authority, were to hold a patient without psychiatric treatment under an ITA statute, there is the possibility of legal action.

That said, most attorneys would agree that doing what is right for the patient and providing care likely is the most prudent step until case law on the point exists. Put another way, I’d rather go down in history as the doctor who did the right thing for my patient, but had the precedent set against me that said doctors have to release floridly psychotic patients to the street due to lack of treatment space. It would not be a fun experience, but in the interests of my patients, it’s one I’d be willing to live through. Of course, if you find yourself in that position, be sure to consult your legal counsel.

Conclusion

The decision by the Washington Supreme Court to declare the practice of psychiatric boarding unconstitutional presents a novel approach to fighting the practice and advocating for our patients. However, in doing so, the court created new avenues of risk for providers and put patients in harm’s way if the court eliminated the practice of psychiatric boarding without adequate resources in place. Time will tell if other states, providers, or patients explore the questions of constitutionality of psychiatric boarding. When these issues arise, it’s a reminder to all of the importance of putting your hospital legal counsel and risk manager on speed dial.

REFERENCES

  1. Szabo L. Psychiatric beds disappear despite growing demand. USA Today. May 12, 2014.
  2. Robinson S. The News Tribune Special Report: ‘Boarding’ the mentally ill. The News Tribune. July 14, 2013.
  3. Wyatt v. Stickney, 325 F. Supp. 781, 9th Circuit (1981).
  4. In re detention of DW, 90110-4, Washington Supreme Court (Aug. 7, 2014).
  5. Washington State Hospital Association. Mental Health Boarding: In Re Detention of DW and the Legislative Response. Available at: http://bit.ly/2bKXfC6.
  6. Single Bed Certification. (2015). WAC 388-865-0526.
  7. O’Sullivan J, Robinson S. Court orders Western State CEO to jail unless ‘boarded’ patient is admitted to state care. The News Tribune. June 10, 2016.
  8. Robinson S. Jail trip for state hospital CEO canceled until further notice. The News Tribune. June 16, 2016.
  9. Schwab N. Creigh Deeds tells son’s mental health horror story. US News and World Report. March 31, 2014.