Emergency Physicians Still Hoping for Legal Authority to Detain Dangerous Patients
Public Health Feature — December 2015
Tex Med. 2015;111(12):49-54.
By Joey Berlin
The man had checked into an Austin hotel, but he'd overstayed his reservation by a day or two and refused to leave. According to the emergency physician who says he later treated the man, the hotel called the police to evict him.
When the police arrived, they found the man hadn't packed a change of clothes or personal hygiene products. What he did have, according to Chris Ziebell, MD, was more than 150 guns and hundreds of pounds of ammunition.
"The police said, 'Well, he's not committing a crime, but it was just too bizarre for us to leave him there,'" said Dr. Ziebell, an emergency physician at University Medical Center Brackenridge. "So they brought him to the ER, where he was not under police officer emergency detention because they said, 'We can't [see] any dangerousness out of him, but we recognize that something isn't right.'"
Dr. Ziebell says the authorities asked for his help. But Texas law — unlike the law in some other states — doesn't allow a physician to detain patients the doctor deems a danger to themselves or others. Temporarily detaining a dangerous patient requires an emergency detention order from law enforcement or a court order.
"That put us in an awkward position because we knew we couldn't let him go, but we knew we couldn't keep him," Dr. Ziebell said. "We sort of cajoled and manipulated [him] and implied that he couldn't leave, without actually detaining him, while working our way around an assessment."
That assessment resulted in a diagnosis of schizophrenia, Dr. Ziebell says, and also revealed the man had intended to go to the state Capitol and inflict "massive bodily harm." He says he was able to convince the man to remain hospitalized and seek treatment.
"He's the most dangerous individual I've met in my career," Dr. Ziebell said. "And I could not have gotten even a court order. I didn't have any evidence."
Dr. Ziebell testified before the Texas Legislature about the incident shortly after it happened, during the 2013 legislative session. Over the years, medicine has tried to convince state lawmakers of the need to give physicians the power to hold dangerous patients for a finite length of time. Dr. Ziebell says as time passes, that need only grows; he says he thinks it's a greater need now than it was 15 or 20 years ago.
"Those kinds of people exist, and unfortunately, where we're at right now with journalism is that these events get sensationalized," he said. "And a lot of times, people who have been marginalized by society think, 'I'm going to go do this thing, and everybody's going to know my name.' That's part of why we're seeing an acceleration of these kinds of behaviors. There's no reason to think that Texas is immune to that, and in fact there's plenty of reason to think that Texas is at high risk for that."
Dr. Ziebell points to the mass shootings at Fort Hood outside Killeen in 2009 and 2014 as examples of Texas' susceptibility to dangerous people looking to make a tragic statement. In the 2009 incident, the gunman, a U.S. Army major and psychiatrist, killed 13 people and wounded more than 30 others. A military jury sentenced him to death in 2013. The gunman in the 2014 shooting killed four people and wounded 14. He died from a self-inflicted gunshot wound.
The man police brought from the hotel to Brackenridge never reached that breaking point. Dr. Ziebell says it was the man's first psychotic episode.
"To go to a judge and say I need an order of protective custody on this young man who has no criminal history, no psychiatric history … because my gut tells me he's transitioned into dangerousness, [it] wouldn't go over very well," he said.
Dr. Ziebell adds it took about four hours to convince the patient to stay at the hospital. "He was a voluntary patient from then on. As we worked together, he came to understand he had a problem. In the end, he was very grateful we did not dismiss him in a way that would have allowed him to follow through with the plans he had," he said.
Texas law generally allows a peace officer or a judge's order of protective custody to detain a dangerous patient for up to 48 hours.
Methods of obtaining either of those types of holds vary from hospital to hospital and county to county, says Temple emergency physician Robert Greenberg, MD.
Although some hospital security departments include members of law enforcement who can detain a patient, Dr. Greenberg says most hospitals employ security guards, who don't have that authority. Some facilities call the local police or sheriff's department, he says.
"There's a bunch of different ways to do it. What those all have in common is that they take time," he said. "So that means that we are holding patients against their will without any legal authority even to get that order. It puts the hospital and the physician in a no-win situation."
Dr. Ziebell agrees emergency physicians generally find a way to hold dangerous patients until they can get law enforcement or a judge involved.
"I would rather defend that in front of a jury and say, 'Did you really want me to let this person go?' as opposed to trying to defend myself from the thing that's going to happen if that person goes out and shoots up a school or something like that," he said.
Dr. Greenberg says Texas law is antiquated because of its assumption that a great deal of mental health care occurs in an inpatient hospital setting. In reality, "we try to do as much mental health care outside of the hospital as we can."
He says the law also "basically treat[s] someone in a mental health crisis as though that person is a criminal because the way the laws are written, you have to have the involvement of law enforcement interjected into the physician-patient relationship."
Sen. Royce West (D-Dallas) introduced the latest legislative attempt to bring physician-hold authority to Texas during this year's session. Senate Bill 359 would have authorized inpatient mental health facilities, hospitals and their emergency departments, and freestanding emergency medical facilities to adopt a policy allowing physicians to detain a person who voluntarily requests treatment if the physician believes the person has a mental illness and is dangerous to self or others. The facility would be able to hold the person for no more than four hours.
Some other states allow physicians to detain dangerous patients for days. Physicians, therapists, and clinical social workers in Colorado can hold patients who are a danger to self or others for a maximum of 72 hours.
"We didn't ask for much," Dr. Ziebell said. "We asked for four hours — just enough time to do an assessment to see, first of all, if we need to pursue a police officer emergency detention."
Senator West's introduction of SB 359 came after the Texas Medical Association and the Texas Hospital Association convened the Physician-Initiated Emergency Detention Workgroup in 2014. Members of the workgroup included physicians practicing in emergency medicine, psychiatry, and family medicine, and hospital administrators from urban and rural hospitals. The group worked closely with lawmakers, mental health advocacy organizations, and consumer groups to develop a consensus bill.
A similar measure by Senator West two years ago cleared the Senate but stalled in a House committee. This year, SB 359 got through both chambers with ease, passing the House by a 128-12 margin and the Senate by a 27-4 vote. But Gov. Greg Abbott vetoed it.
Governor Abbott's veto statement said under constitutional tradition, only law enforcement officials in Texas generally have the power to arrest and hold people against their will.
"By bestowing that grave authority on private parties who lack the training of peace officers and are not bound by the same oath to protect and serve the public, SB 359 raises serious constitutional concerns and would lay the groundwork for further erosion of constitutional liberties," Governor Abbott wrote.
Dr. Greenberg says he disagrees with the assertion physicians are private parties.
"There is a standard and an expectation applied to physicians that is higher than that of a private party," he said. "With all due respect to the peace officers, I would disagree that they are better trained than physicians to identify someone who is mentally ill and is a danger to self or others."
For Texas hospitals in rural areas, the legal authority to hold a dangerous patient isn't the biggest problem, says Don McBeath, director of government relations for the Texas Organization of Rural and Community Hospitals (TORCH). Mr. McBeath says more compelling for rural hospitals is the lack of any inpatient mental health facilities nearby to house those patients and a general lack of resources. He says officials at rural hospitals believed the physician-hold authority SB 359 offered could've been a useful tool in some situations, but it wasn't a high priority for those hospitals. TORCH neither supported nor opposed SB 359.
Mr. McBeath says when law enforcement brings such a patient to a hospital, the hospital is obligated to hold him or her under the federal Emergency Medical Treatment and Labor Act.
"For starters, if you are dealing with an aggressive, violent, or potentially violent mental health patient, they don't have staff trained to deal with that situation," he said. "They don't have appropriate facilities to hold that patient. Basically, many rural hospitals have a very small ER with one or two beds and a lot of equipment within arm's reach that could be used as a weapon."
Mr. McBeath says although the legislature's appropriations for mental health have been "pretty substantial" in recent sessions, that money "didn't flow to rural Texas. So we still don't have access to appropriate facilities."
Texas ranked next to last in the nation in per-capita state mental health agency spending on mental health services in fiscal year 2013, according to the National Association of State Mental Health Program Directors Research Institute statistics. (See "Near the Bottom.") During this year's session, the legislature approved $150 million in increased mental health spending over the previous biennial budget.
Les Secrest, MD, chair of TMA's Task Force on Behavioral Health, says there's an opportunity to change people's minds about mental health holds by better communicating what the physician will do while detaining the patient. He says advocates of physician-hold authority have struggled with that message, leading people to believe physicians would simply detain patients for hours, when in reality emergency physicians would use the time to evaluate the patient.
"At the end of that evaluation, we have to do something," Dr. Secrest said. "And I think the thing that we don't communicate as well is that the next thing we need to do is be able to go to the mental illness courts, usually the probate courts, and ask for the clerk to review the information we have obtained in the examination lab work that would then say, 'You need to apply the law that would allow somebody to be hospitalized against their will.'"
Dr. Secrest says there's an opportunity to spread the message that mental disorders affect the brain's function.
"We take mental disorders and put them in a separate category, and at times I think we treat them as if a person chooses to have a mental disorder rather than [someone who has] no different choice than somebody who is infected with Ebola," he said. "Their bodies have no choice but to respond to this agent."
After SB 359's progress in the legislature this year, Dr. Greenberg says he'd like to see an identical bill introduced during the 2017 session. Dr. Secrest says the opportunity exists to start a conversation with Governor Abbott's general counsel and address the governor's constitutional concerns.
"I have mental illness in my own family," Dr. Ziebell said. "Nobody likes to be held against their will. Nobody likes to see somebody they love held against their will. It's clearly a very important balance between the civil liberties of the individual and the need to protect society from certain individuals. In health care, we take that very, very seriously."
Joey Berlin can be reached by phone at (800) 880-1300, ext. 1393, or (512) 370-1393; by fax at (512) 370-1629; or by email.
Near the Bottom
Only one state's mental health agency spent less per capita on mental health than did Texas in fiscal year 2013, according to rankings from the National Association of State Mental Health Program Directors Research Institute (NRI). The statistics rank 48 states because Florida and New Mexico didn't report their expenditures, according to NRI.
State Mental Health Spending Per Capita, FY 2013
1. Maine: $346
2. Alaska: $341
3. Vermont: $292
4. Pennsylvania: $287
5. New York: $261
44. Kentucky: $55
45. Oklahoma: $53
46. Arkansas: $46
47. Texas: $41
48. Idaho: $33
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