Bulletin: Changes to the Involuntary Treatment Act (ITA) – Part 1 – Key Changes

Change of Law: Hospital Action Required

To:                     Chief Executive Officers, Chief Nursing Officers, WSHA Behavioral Health Work
                           Group, ITA Experts, Legal Counsel and Government Affairs Staff
                  
From:                 Jaclyn Greenberg, JD, LLM | Policy Director, Legal Affairs
                            JaclynG@wsha.org  | (206) 216-2506

Subject:            Changes to the Involuntary Treatment Act (ITA) – Part 1 – Key Changes

Purpose

The purpose of this bulletin is to provide an overview of key changes to Washington’s civil commitment statues for adults and minors under 2E2SSB 5720 (SB 5720). The omnibus bill amends RCW 71.05, the Involuntary Treatment Act (ITA) and RCW 71.34, Behavioral Health Services for Minors. Key changes include expanding the initial detention period from 3 days to 5 days, expanding patients’ rights, modifying ITA processes, and making important definitional changes. Except for the 5-day detention change and the definitions changes expanding detention criteria, these changes are effective June 11, 2020.

WSHA strongly advocated and negotiated on this bill during the 2019 and 2020 legislative sessions. We were able to secure several important changes to this new law.

Applicability

Senate bill 5720 applies to all hospitals who provide evaluation and treatment services under RCW 71.05 and RCW 71.34, including:

• psychiatric hospitals licensed under RCW 71.12; and
• acute care hospitals licensed under RCW 70.41, whose emergency departments receive and evaluate whether a patient should be detained and those that accept Single Bed Certifications (SBCs).

Recommendation

1. Review this bulletin.

2. Attend WSHA’s upcoming webcast on Changes to the Involuntary Treatment Act on Friday, June 5 at 10 am. Register here.

3. Attend WSHA’s ITA Experts Roundtable: Moving to a 5-day detention model and other key changes to the ITA on Friday, July 10 at 10 am. Calendar invitations will be sent out to WSHA’s ITA Experts Group. Please contact Jaclyn Greenberg about joining the call if you are not already a part of that group. Note: for members only.

4. Update your ITA processes and procedures for the following:
   1. Initial detention – Effective January 1, 2021, patients may be held for 120 hours (5 days), excluding weekends and holidays.
   2. Patients’ rights – There are new rights for adults and minors. Notices need to be updated and posted in your facilities.
   3. Compelling antipsychotic medications – Permitted for both adults and minors, for short-term and emergency use, during inpatient stays and under Less Restrictive Alternative orders.
   4. ITA evaluations – Video is permitted with hospital staff present.
   5. Out of county transfers – Hospitals are now required to file detention paperwork at the request of Designated Crisis Responders.
   6. ITA for minors – Overall alignment with RCW 71.05 and broader scope for conducting evaluations.
   7. Legal process changes – Consult with legal counsel, prosecutors and DCRs for hospital-associated changes.

5. Review the law in its entirety. This bulletin provides an overview of key changes. Hospitals are encouraged to review the new law in full to identify any additional changes relevant to their ITA programs. To assist review, WSHA has prepared:
   1. A formatted version of the law, including table of contents here; and
   2. An outline of the structure of the new law that crosswalks the sections with the amended statutes and identifying the various expiry and effective dates here.

Overview

SB 5720 is a broad omnibus bill amending the ITA. It makes several large and many discrete changes to the civil commitment process in Washington state for adults and minors. The following is an overview of the key changes. It is not an exhaustive review of every change made by the new law.

WSHA will provide additional bulletins to go into more depth about particular changes including Designated Crisis Responders’ (DCRs) use of video for ITA evaluations and changes to the minors statute to align it with the adults statute.

The most significant changes impacting hospitals include:

• Expanding the length of initial detention from 72 hours (3 days) to 120 hours (5 days);
• Contingent on certain triggers, expanding detention and commitment criteria by amending the definitions of “gravely disabled” and “likelihood of serious harm” as well as other definitions changes;
• Expanding the rights of adults and minors held under the RCW 71.05 and RCW 71.34;
• Extending the legal authority for providers to compel medications to minors generally and to adults in an outpatient setting, under Less Restrictive Alternative Orders;
• Allowing ITA evaluations to be conducted by video so long as hospital staff are present with the patient and can help facilitate the evaluation process;
• Aligning the minors statute, RCW 71.34, with the adults statute, RCW 71.05; and
• Formalizing the role of hospitals to process out of county transfers.

1. 5-day initial detention

Effective January 1, 2021, SB 5720 extends the initial detention period. Adults and minors may be held for an initial detention period of one hundred twenty hours (120 hours, or 5 days), excluding weekends and holidays. This is the maximum amount of time a person may be held for evaluation and treatment before a probable cause hearing must be held. Following the established procedures for initiating the detention, hospitals are permitted – not required – to use this additional time to evaluate and treat a patient. Some patients may be candidates for voluntary, assisted outpatient or less restrictive treatment with the benefit of this extra time; others may not. As always, clinician judgment will determine what is appropriate in the case of an individual patient.

WSHA recommends hospitals begin to consider how this change will impact their operations including whether this change will impact their overall bed capacity.

SB 5720 also creates a workgroup to evaluate the implementation of the act, including the expansion of the initial detention period to 120 hours. The workgroup, which will include representatives from hospitals providing short-term and long-term commitment services, including on Single Bed Certifications (SBCs), will convene starting in July 2020. Its first report will identify recommendations for implementing the 5-day detention model and is due by December 2020. Its broader evaluation is due by June 30, 2022.

For the workgroup’s mandate and membership, see Section 103 of the bill.  WSHA will update members about the workgroup once it begins.

2. Key Definitions Changes, including “Gravely Disabled”

SB 5720 makes several changes to key definitions in both the adults and minors statutes. The main change is expanding detention/commitment criteria by amending the definitions of “gravely disabled” and “likelihood of serious harm.” However, those changes only go into effect upon certain “triggers” which are unlikely to be met in the near future (with one exception under the minors definition of “likelihood of serious harm,” identified below). WSHA’s advocacy led to these important legal triggers, as we raised strong concern that expanding criteria without corresponding funding to create additional capacity would add tremendous pressure to our crisis behavioral health system, which is already operating well beyond licensed bed capacity.

Under RCW 71.05 (adults). When the state’s monthly SBCs fall below 200 for more than three consecutive months:

• “Gravely disabled” will be defined to include a person who manifests “severe deterioration from safe behavior” instead of “routine functioning” (underlined language is new).

• “Safe deterioration from safe behavior” will be defined to mean: a “person will, if not treated, suffer or continue to suffer severe and abnormal mental, emotional, or physical distress associated with significant impairment of judgment, reason, or behavior.” WSHA anticipates this definition will capture Ricky’s Law patients (those involuntarily detained for substance use disorder) if and when the definition changes go into effect.

• “Likelihood of serious harm” will be amended to mean, in addition to a substantial risk of physical self-harm and property, a substantial risk of physical harm to another person evidenced by behavior which has caused “harm, substantial pain, or which places another person or persons in reasonable fear of harm to themselves or others” (underlined language is new). “Likelihood of serious harm” may also mean the person has “threatened the physical safety of another and has a history of one or more violent acts.”

• For context, the monthly SBCs count has ranged between 750-915 for the last two years according to quarterly reports from HCA.

Under RCW 71.34 (minors). When the average wait time for placement in a children’s long-term inpatient placement (CLIP) is 30 days or less for two consecutive quarters:

• “Gravely disabled” will have the same new definition as RCW 71.05 above.

• Severe deterioration from safe behavior will have the same new definition as RCW 71.05 above.

• “Likelihood of serious harm” will have the same new definition as RCW 71.05 above.

Note: For minors, under RCW 71.34 RCW, effective June 11, 2020, “likelihood of serious harm” will be expanded to align with RCW 71.05’s existing definition but will not go as far the definition that is contingent on CLIP placements identified above. The new “intermediate” definition will contain the existing references to physical self-harm, property, and physical harm and it will also mean “the minor has threatened the physical safety of another and has a history of one or more violent acts” (underlined language is new).

• A “history of one or more violent acts” is defined to mean the five years prior to the filing of the petition, excluding any time spent, but not any violent acts committed, in a mental health facility, a long-term alcoholism drug treatment facility, or in confinement as a result of a criminal conviction. Note: This definition is carried over from RCW 71.05 but shortens the relevant time period from 10 years to 5 years.

• “Violent act” means behavior that resulted in homicide, attempted suicide, injury, or substantial loss or damage to property. This definition is carried over from RCW 71.05.

Other changes to the definitions in RCW 71.05 and RCW 71.34 include:

• References to “mental disorders” and “substance use disorders” are changed to “behavioral health disorders” to align with the state’s behavioral health integration policy;
• Reference to “mental health service provider” is replaced with “behavioral health service provider” and expanded to include a public or private agency that provides “mental health, substance use disorder or co-occurring disorder services” to align with the state’s behavioral health integration policy;
• Modernizing the meaning of “hearing,” to include participation by video for the petitioner, respondent, witnesses, interpreters and the judge.

In addition, many of the definitions from RCW 71.05 are added to RCW 71.34. See section 63 of the bill for all the definitions that were carried over and that go into effect on June 11, 2020.

3. New rights of patients held under the ITA

SB 5720 makes several changes to the rights of adults and minors and harmonizes the rights between the two statutes.  These rights apply to persons held on initial detention, a short-term 14-day commitment order and long-term commitment orders for 90 or 180-day treatment.

New rights under RCW 71.05 (adults). All hospitals that provide ITA services to adults, including under SBC, must post a list of the rights in a prominent place. In addition to the rights under existing law, the following rights are added:

• The right to individualized care and adequate treatment.
• The right to discuss treatment plans and decisions with professional persons.
• The right to access treatment by spiritual means through prayer in accordance with the tenets and practices of a church or religious denomination in addition to medical treatment.

In addition, SB 5720 requires:

• Every person involuntarily detained or committed receives all the rights set out in the statutes and retains all rights not otherwise denied, except in respect of firearms in certain circumstances.
• No person may be presumed incompetent as a result of receiving evaluation and treatment. Competency determinations are subject to chapter RCW 10.77 and RCW 11.88.
• Every person who receives evaluation and treatment must be given a reasonable choice of an available physician, physician assistant, psychiatric advanced registered nurse practitioner, or other professional person qualified to provide services, unless they receive services under Single Bed Certification, in which case those rules and regulations govern.
• Every person held on an initial detention is advised of their right to a probable cause hearing within the appropriate 72-hour or 120-hour timeframe and their right to various due process protections related to that hearing.

New rights under RCW 71.34 (minors). All hospitals that provide ITA services to minors and which are certified as Evaluation and Treatment facilities (E&Ts) including psychiatric hospitals and psychiatric units in acute care hospitals are required to post the rights in full in a prominent place. Hospitals that are not certified as E&Ts but accept minor ITA patients by SBC are not strictly subject to this requirement but are encouraged to do so.

For the amendments to the rights of adults, see section 31 amending RCW 71.05.217.
For the amendments to the rights of minors, see section 68 amending RCW 71.34.355.
For the single bed certification standards, see RCW 71.05.745 and the emergency rules in effect under WSR 20-05-021. (Note: HCA is currently engaged in rulemaking to make the emergency rules permanent. WSHA expects that permanent rules will largely mirror the emergency rules language.)

4. Authority to compel medication expanded to minors and LRAs

Under RCW 71.05, treating providers may compel patients to take antipsychotic medications if certain conditions are met. The law contemplates two circumstances when this action may be appropriate: for short-term treatment up to 30 days and emergency treatment.

SB 5720 makes two important changes related to the authority to compel medications:

1. 1. Minors may be compelled. The authority to compel medications is extended to minors by reference to the adults statute, which is summarized below.
   2. Adults and minors under an LRA Order may be compelled. The authority to compel medication is extended to outpatient providers pursuant to an LRA Order, provided: that:
      1. The patient was provided involuntary medication pursuant to the statutory authority below or a court order;
      2. The provider has attempted and failed to obtain the person’s informed consent; and,
      3. There is a concurring medical opinion approving the medication by a psychiatrist, physician assistant working with a supervising psychiatrist, psychiatric advanced registered nurse practitioner, or physician or physician assistant in consultant with an independent mental health professional with prescribing authority.

SB 5720 also waives provider-patient privilege for proceedings related to compelling medication. For both adults and minors’ proceedings related to compelling medication, privileges between patients and physicians, physician assistances, psychologists, or psychiatric advanced registered nurse practitioners are deemed waived. The waiver is limited to records or testimony relevant to evaluation of the detained person. For all other proceedings under RCW 71.05 and 71.34 RCW, waiver of privilege is subject to court discretion and whether such waiver is necessary to protect the detained minor or the public.

For background on the authority to compel medications, the following summarizes the requirements for compelling medication under RCW 71.05, including documentation requirements, a hearing requirement for the use of emergency medication, and a patient’s right to refuse medication 24 hours before a probable cause hearing.

Short-term treatment RCW 71.05.215(2)

Emergency treatment RCW 71.05.215(d) and RCW 71.05.217(1)

The person is found to be gravely disabled or presenting a likelihood of serious harm as a result of a behavioral health disorder; Medication is for short-term treatment up to 30 days; Informed consent was refused; and There is a concurring medical opinion approving medication by a psychiatrist, physician assistant working with a supervising psychiatrist, psychiatric advanced registered nurse practitioner, or physician or physician assistant in consultation with a mental health professional with prescriptive authority.

The person presents an imminent likelihood of serious harm; Informed consent was refused; Medically acceptable alternatives to the administration of antipsychotic medications are not available or are unlikely to be successful; and, In the opinion of the physician, physician assistant, or psychiatric advanced registered nurse practitioner with responsibility for treatment of the person, or his or her designee, the person’s condition constitutes an emergency requiring the treatment be instituted prior to obtaining a second medical opinion.

 

ITA hearing for emergency treatment. Under the emergency treatment authority, a petition for authorization to compel medication must be filed on the next judicial day and a hearing held within two judicial days. If the prescribing provider deems it necessary, administration of the medication may continue until the hearing is held.

Right to refuse medication 24 hours before probably cause hearing. For non-emergency treatment, however, a person has a right to refuse antipsychotic medication 24 hours prior to the probable cause hearing.

Documentation required. The prescribing provider must document in the medical record their attempt to obtain informed consent and the reasons why antipsychotic medication is being administered over the person’s objection or lack of consent.

5. Video may be used to conduct ITA evaluations

Under SB 5720 and HB 2099, DCRs may interview a person as part of their investigation to determine whether detention is necessary by real-time video provided that a licensed health care professional or professional person is present to assist the person.  Hospitals are under no obligation to facilitate the use of video. Facilities are strongly encouraged to consult with their local DCRs about feasibility and capacity to facilitate this method of evaluation.

In response to the COVID-19 and the current public health emergency, the Health Care Authority issued guidance that use of video was permissible prior to the June 11, 2020 effective date of the new laws. The guidance is available here. Subsequently, the Washington Supreme Court issued an order (available here) for conducting civil commitment hearings during the emergency that reiterated this option for conducting ITA evaluations with one key exception. Under the Supreme Court Order, a health care professional is not required unless the facility and the DCR together determine that the person’s presence is necessary. The Order is in effect now and continue to govern during the emergency.

WSHA will release a bulletin on video evaluations shortly. WSHA has also been working with HCA, DCR associations, community providers and several hospital members to develop guidance for both DCRs and facility staff to help operationalize the law. That guidance will be circulated once it is ready.

1. Alignment of the minors statute with RCW 71.05

SB 5720 makes several changes to the minor statute to align it with the adults statute. WSHA will release a separate bulletin reviewing these changes in more depth shortly. In the meantime, hospitals should be aware of the following with respect to involuntarily detaining people under eighteen:

• Peace officers[1] are authorized to bring a minor to an E&T facility, such as a psychiatric hospital (as well as a secure withdrawal management and stabilization facility or approved substance use disorder treatment program), and may ask the E&T to hold the minor for up to 8 hours if the minor has been arrested. At the request of the peace officer, a hospital must detain the arrested minor for up to 8 hours. During this time, the hospital must make reasonable attempts to contact the officer to inform them that the minor is not approved for admission and/or is being released (to allow the officer time to return and take the minor back into custody).

• Facilities may allow a minor detained for intensive treatment to leave the facility for prescribed periods during the detentions, under appropriate conditions.

• The statutory duty to warn or protect applies – In addition to the common law duty to protect third parties from the dangerous propensities of a patient, inpatient providers are now subject to the statutory duty to warn or provide protection from the violent behavior of a minor who has communicated an actual threat of physical violence against a reasonably identifiable victim(s). The duty may be discharged by reasonable efforts to communicate the threat to the victim(s) and law enforcement personnel. For guidance on common law and statutory duty to warn or protect standards, see here.

• Joel’s Law applies – A family member, guardian or conservator of a minor may petition the court directly for a minors detention.

• Legislative emphasis on a minor’s prior behavioral health history, including the impact on the family, is added – RCW 71.34’s legislative intent section has been updated to reflect a policy priority of early intervention, and with it, authority to consider a wider array of the minor’s circumstances, including school behavioral issues and impact on the family. DCRs are correspondingly now required to consider information from all credible witnesses, including family members, landlords, neighbors, teachers or school personnel, and others with significant contact and history of involvement with the minor. DCRs must construe current symptoms and behavior in conjunction with historical behavior when analyzing whether the minor is gravely disabled. Courts are similarly directed to give “great weight” to evidence of prior history or pattern of decompensation and discontinuation of treatment resulting in repeated hospitalizations or repeated juvenile charges.

• The ITA standard that commitment petitions should not be dismissed as a remedy for violations of the timeliness requirements applies. Petitions should not be dismissed “except in the few cases where the facility staff or the designated crisis responder have totally disregarded” the applicable requirements.

• A minor may be denied the opportunity to consult with an attorney only if there is an immediate risk of harm to the minor or others.

Hospitals providing involuntary treatment to minors are strongly encouraged to review the provisions amending the minors statute in close consultation with legal counsel, prosecutors and DCRs.

2. Out of country transfers

Under SB 5720, when a person (adult or minor) is detained in a different county from where they were initially detained, the accepting hospital may file the petition and proof of service on the person instead of the DCR at the request of the DCR in the county of the original detention. WSHA believes this requirement articulates existing practice given court filing requirements and limitations on electronic filings from out of county and should not impact most hospitals.

Hospitals accepting SBCs that are without ITA coordinators or formal processes for handling petition paperwork are strongly encouraged to consult with the DCRs about fulfilling this requirement to ensure a patient’s due process rights are protected and there are no procedural irregularities that undermine the merits of a petition.

3. Other changes

SB 5720 makes numerous other changes, including, for example:

• Repealing time limitations on continuances in ITA hearings. Continuances may be sought if there is good cause and the respondent expressly consents or it is required in the proper administration of justice and the respondent will not be substantially prejudiced;

• Clarifying that a hospital may show that a patient has not accepted voluntary treatment in good faith by showing that the patient failed to abide by the treatment plan. This is relevant for purposes of restricting a patient’s right to firearms if they are subsequently detained for involuntary treatment;

• Requiring a DCR to inform law enforcement of a person’s 6-month suspension of firearms rights and law enforcement’s obligation to confirm the person was subsequently committed before returning the person’s firearm after that time;

• A person subject to a “felony flip” may be subject to a 90-day order in addition to 180-day order; and,

• Various modifications to court processes and timelines. For example, an order of dismissal is now required when a petition for detention or commitment is not granted; a court order for a peace officer to detain a person for involuntary treatment must be entered into the Washington Crime Information Center database as a “written order of apprehension”; and surety hearings related to a facility’s decision not to detain a person released from jail after the dismissal of serious nonfelony charges based on incompetency to stand trial are eliminated.

Resources for reviewing SB 5720 and evaluating its changes. This bulletin reviews key changes made by SB 5720. It is not an exhaustive list. The 150-page bill amends several statutes, many with multiple versions with different effective dates within one section. Hospital ITA teams are encouraged to review the new law for changes that may be relevant to their ITA programs.

To assist your review:

• SB 5720 in its entirety is available here.
• For a formatted version of SB 5720, including table of contents, see here.
• For an outline of the structure of SB 5720 that crosswalks the sections with the amended statutes and identifies the various expiry and effective dates, see here.

References

Laws

• 71.05 RCW – Involuntary Treatment Act
• 71.34 RCW – Behavioral Health Services for Minors
• 2E2SSB 5720 – Concerning the Involuntary Treatment Act

Resources

• SB 5720 – Formatted with Table of Contents
• SB 5720 – Summary with amended statutes and effective dates
• Joel’s Law – WSHA Bulletin (2015)
• Ricky’s Law – WSHA Bulletin (2018)
• Guidance on the Duty to Warn or Protect
• HCA Guidance – ITA evaluations by video
• Washington State Supreme Court Order Regarding Civil Commitments (April 29, 2020)

WSHA’s 2020 New Law Implementation Guide

Please visit WSHA’s 2020 implementation guide online, where you will find a list of the high priority laws that WSHA is preparing resources and information on to help members implement the new laws, as well as links to resources such as this bulletin. In addition, you will find the Government Affairs team’s schedule for release of upcoming resources on other laws and additional resources for implementation.

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[1] “Peace officer” means a law enforcement official of a public agency or government unit, and includes a person specifically given peace officer powers by any state law, local ordinance, or judicial order of appropriation.