State Mental Health Hold Law "Antiquated"
Law Feature — November 2013
Tex Med. 2013;109(11):29-32.
By Crystal Zuzek
When Temple emergency physician Robert Daniel Greenberg, MD, encounters suicidal or homicidal patients, he doesn't have the legal authority to temporarily hold them. For example, if the parents of an unresponsive 19-year-old patient fear he'll commit suicide once he wakes up, Dr. Greenberg says he's powerless to temporarily detain him. He has to wait for a judge to issue an emergency detention order.
Generally, Texas law allows people who pose a significant risk of harming themselves or others to be detained for up to 48 hours with a judge's order.
Dr. Greenberg, chair of the Texas Medical Association Interspecialty Society Committee, describes Texas' law on mental health holds as "antiquated," adding that it assumes all psychiatric care occurs in an inpatient setting.
"This is clearly not the case, nor is it optimal. Often times, psychiatric emergencies are managed in emergency departments throughout the state by emergency physicians. The additional burden of requiring a peace officer or judge to become involved before any action can be taken prevents timely treatment of these potentially dangerous patients and complicates the patient interaction," Dr. Greenberg said.
Chapter 573 of the Texas Health and Safety Code addresses emergency detention of people with mental illness by a peace officer, judge, or magistrate; transportation of detainees to a health facility; release from emergency detention; and rights of those apprehended, detained, or transported for emergency detention.
The law's requirements for temporary mental health holds are especially problematic in a hospital emergency department when a police officer is not available, Dr. Greenberg adds.
"The physician has no choice in such situations but to let the patient leave. It seems counterintuitive that a physician is the expert needed to release patients with mental illness, but a physician can't initiate a mental health hold," he said.
Arlington psychiatrist Les Secrest, MD, a consultant to the TMA Council on Legislation, says he often can persuade patients in crisis to cooperate and agree to temporary detainment.
"Nobody signed up for mental illness. Situations do arise in which physicians think a patient with mental illness poses a significant danger. In those cases, physicians need to be able to hold a patient pending an evaluation," he said.
The 2013 session of the Texas Legislature did not pass legislation that would have authorized physician-initiated mental health holds. TMA, the Texas College of Emergency Physicians (TCEP), the Texas Hospital Association (THA), the Texas Police Chiefs Association, and the Texas Emergency Nurses Association supported the concept. It became clear, however, that lawmakers needed to further consider legal, financial, and practical matters before passing such a law.
TMA, TCEP, and THA will form a workgroup to weigh those considerations. At press time, the workgroup's membership hadn't been finalized. The group plans to meet regularly to develop a consensus on legislation for the 2015 legislative session.
Dr. Greenberg introduced a resolution on physician-initiated mental health holds to the TMA House of Delegates at TexMed 2013 in San Antonio. The house adopted a policy that says the association "supports activities, including legislation, that give a physician the authority to hold, until such time a judge or justice of the peace can hear the case, a person who is suffering from mental illness and exhibits a substantial risk of serious harm to himself or others in order to evaluate and coordinate care for that patient." The policy also says TMA will "work with interested parties, including patient advocacy groups, other medical care organizations, law enforcement, the mental health community, and the legal community, to ensure that there is no increased medical liability exposure or criminal exposure to the physician who places a patient in a mental health hold when the physician's professional judgment is in the patient's best interest."
Legislators Consider Mental Health Holds
Senate Bill 937 by Sen. Royce West (D-Dallas) would have allowed a physician to detain a patient with mental illness for up to four hours when it was in the patient's best interest and until an evaluation and appropriate treatment plan could be developed. TMA and TCEP supported the bill's goals at a Senate Health and Human Services Committee hearing, but cited some concerns. For instance, the organizations worried the bill could inadvertently create a liability for physicians or facilities. TMA asked Senator West to add language clarifying that no new liability would exist for a physician regardless of whether he or she placed a hold on a patient.
Senator West's office worked closely with TMA and addressed most of the association's concerns. The bill passed the Senate but stalled in the House Committee on Public Health.
SB 937 coauthor Sen. Judith Zaffirini (D-Laredo) says the legislature focused increasingly on mental health in general and on physician-initiated mental health holds in particular.
"I believe this reflects a greater awareness of mental health issues, not only among legislators, but also among the general public. It is important that we address complex issues related to physician-initiated holds to enhance the safety of Texans who have mental illnesses and to ensure they receive the care they need in appropriate clinical settings," she said.
Senator Zaffirini says she intends to collaborate with Senator West to file the bill again next session.
Two other bills died due to concerns from lawmakers and rural hospitals.
House Bill 245 by Rep. Jose Menendez (D-San Antonio) would have permitted an attending physician to initiate a hold of up to 24 hours on patients with mental illness who exhibit substantial risk of serious harm to themselves or others. House Bill 2186 by Rep. Paul Workman (R-Austin) would have allowed hospitals, mental health facilities, and freestanding emergency centers to hold a person with mental illness for up to four hours.
Colorado's law on involuntary mental health holds may be a model that works in the best interest of patients and physicians, according to Dr. Greenberg. Colorado authorizes licensed medical doctors, therapists, and clinical social workers, as well as law enforcement officers, to hold people who are suicidal, homicidal, or incapacitated for up to 72 hours. During that time, patients can be evaluated and treated. Only a doctor can rescind or vacate an involuntary hold before 72 hours pass.
Rural Hospitals Weigh In
Don McBeath, director of government relations for the Texas Organization of Rural and Community Hospitals (TORCH), says temporary mental health holds are a challenge for rural hospitals.
"The legislation that was filed has good intentions but would complicate the problem in rural communities. Texas law doesn't require a hospital to hold mental health patients, but if there's no inpatient facility available, the hospital becomes the default. This will continue to be a problem until the state figures out a way to appropriately hold and treat mental health patients in rural areas," Mr. McBeath said.
Kevin Reed, an Austin health care attorney, says rural Texas hospitals have multiple challenges caring for patients with mental illness in an emergency.
"Often, there's no place within the facility to temporarily hold those patients. The facilities may lack staff members appropriately trained to detain patients. Most often, rural areas don't have referral networks physicians can use to link these patients with the proper care outside the hospital setting," he said.
Mr. McBeath says finding patients beds at state mental health hospitals is no easy task, and transporting patients to facilities hundreds of miles away may require law enforcement help. Of Texas' 180 rural hospitals, about half have 25 or fewer beds, he says.
"Some hospitals see three or four patients a day and don't staff the emergency room on a regular basis," Mr. McBeath said.
He says TORCH supports expanding mental health services, but says it is a "complicated problem with no easy solution. Unfortunately, I don't think legislation related to this issue can be one-size-fits-all. Any change in law needs to take rural health infrastructure and resources into account."
Crystal Zuzek can be reached by telephone at (800) 880-1300, ext. 1385, or (512) 370-1385; by fax at (512) 370-1629; or by email.