Family Petitions of Involuntary Detention Decisions: SB 5269

To: CEOs, CNOs, Legal Counsel, and Government Relations
                             
Please forward to: Directors of Emergency Department and Psychiatric Units
 
From:  Chelene Whiteaker, Policy Director
            Taya Briley, General Legal Counsel
 
Staff Contact:  Chelene Whiteaker: chelenew@wsha.org or 206-216-2545
 
Subject: Family Petitions of Involuntary Detention Decisions: SB 5269      
 
Purpose
The purpose of this bulletin is to provide you with information about a new law, Senate Bill 5269, known as Joel’s Law, that allows family members and legal guardians to petition the court to review an involuntary detention decision under the Involuntary Treatment Act. The Washington State Hospital Association would like to thank Eric Neiman, Attorney, Portland Managing Partner of Lewis, Brisbois, Bisgaard & Smith for contributing to this bulletin.
 
Applicability/Scope
The law went into effect on July 24, 2015. As a result, the following settings may be impacted:

1. Emergency rooms;
2. Hospitals with certified evaluation and treatment programs (also known as psychiatric units accepting individuals who have been involuntarily detained under RCW 71.05);
3. Hospitals with psychiatric units; and
4. Hospitals accepting single bed certifications.  

Recommendations

1. Understand the new law and its potential implications for your facility. Review potential scenarios with your clinicians, risk manager, and legal counsel.
2. Educate your emergency department staff on the new law and let them know where to direct family members in case they are asked about it.
3. If your hospital operates an evaluation and treatment program, accepts single bed certifications, or has a psychiatric unit, discuss the implications of the new law with your prosecutor’s office, regional support network, and local agency employing designated mental health professionals (DMHPs).  

Overview
The law sets up a new process allowing an immediate family member, legal guardian, or conservator to petition a local court to have a DMHP’s decision to not detain reviewed by a judge. Prior to this law, there was no ability to challenge a DMHP’s decision not to detain an individual.
 
Background
This first issue surfaced during the 2014 legislative session, when the parents of Joel Reuter raised serious concerns about the difficulty to detain an individual through Washington State’s Involuntary Treatment Act. The bill died in the Senate in 2014. Enacting the law in 2015 was considered a top priority for several members of the legislature.
 
According to The Seattle Times, Joel Reuter, a 28-year-old software engineer with bipolar disorder, was killed by police in July after firing near officers from the balcony of his Capitol Hill condo. He thought he was shooting at zombies. His parents said they tried and failed to have their son detained by a DMHP. Six months later, his parents moved from Dallas to Olympia to lobby the Legislature to make it easier to commit a person suffering from a mental illness.
 
The New Law
In particular, the following sections of the law have applicability for hospitals:

• Sec. 2 (1) If a designated mental health professional decides not to detain a person for evaluation and treatment under RCW 71.05.150 or 71.05.153 or forty-eight hours have elapsed since a designated mental health professional received a request for investigation and the designated mental health professional has not taken action to have the person detained, an immediate family member or guardian or conservator of the person may petition the superior court for the person’s initial detention.
• Sec. 2 (2)(a) The petition must be submitted on forms developed by the administrative office of the courts for this purpose. The petition must be accompanied by a sworn declaration from the petitioner, and other witnesses if desired, describing why the person should be detained for evaluation and treatment. The description of why the person should be detained may contain, but is not limited to, the information identified in RCW 71.05.212.
• Sec. 2 (7) If the court enters an order for initial detention, it shall provide the order to the designated mental health professional agency, which shall execute the order without delay. An order for initial detention under this section expires one hundred eighty days from issuance.
• Sec. 2 (8) Except as otherwise expressly stated in this chapter, all procedures must be followed as if the order had been entered under RCW 71.05.150. RCW 71.05.160 does not apply if detention was initiated under the process set forth in this section.
• Sec. 2 (9) “Immediate family member” means a spouse, domestic partner, child, stepchild, parent, stepparent, grandparent, or sibling.
• Sec. 3 (1) The department and each regional support network or agency employing designated mental health professionals shall publish information in an easily accessible format describing the process for an immediate family member, guardian, or conservator to petition for court review of a detention decision under section 2 of this act.  

As referenced in Section 2 (8) of the law, once the court issues an order to detain, the process for the patient reverts to the established approach for DMHP detentions under RCW 71.05.150. Specifically the statute states, “An order to detain to a designated evaluation and treatment facility for not more than a seventy-two-hour evaluation and treatment period may be issued by a judge of the superior court upon request of a designated mental health professional, whenever it appears to the satisfaction of a judge of the superior court…” that statutory detention criteria are met. 
 
Implications of the Supreme Court Case: In Re Detention of DW. The Supreme Court’s decision last August declared that involuntary boarding of patients without providing appropriate mental health treatment is illegal. Joel’s Law raises the question about how courts will respond when a designated mental health professional’s decision to not detain is overridden, and a judge issues a 72-hour court order to detain. Detentions under the new law may take place when there are no certified evaluation and treatment (E&T) beds available. While the courts must be concerned with ensuring an individual’s civil rights are protected, from a practical standpoint the new law may put more pressure on hospitals to accept single bed certifications. Please see WSHA’s May 12, 2015 bulletin on the single bed certification rule.
 
Potential Scenarios for Hospitals
We recommend you work through various potential scenarios with risk management and legal counsel. Some scenarios could include:

• A patient is in the emergency department, and the DMHP determines the individual does not meet involuntary detention criteria and the patient will not be detained. The patient’s family, having been told of the DMHP’s decision, is claiming they will file a petition under Joel’s Law. They are urging the hospital to hold onto the patient in the meantime. Hospitals should evaluate the considerations of the Emergency Medical Treatment and Active Labor Act versus the DMHP’s decision to not detain and what implications this could have on a patient’s civil rights.
• A judge overturns a DMHP’s decision and issues an order for an individual to be detained to your evaluation and treatment facility.  There are no available E&T beds.  Your unit is full and law enforcement is on their way with the patient, what do you do? (This scenario may be less likely, but until we see how the courts implement this law, we recommend you consider it.)
• A judge overturns a DMHP’s decision and issues an order for an individual to be detained. The DMHP brings the patient back to your hospital’s emergency department.  
• A judge overturns a DMHP’s decision and issues an order for an individual to be detained. The patient has been voluntary, but now wants to leave. 
• A patient is detained under a Joe’s Law order, but the physician concludes that the patient no longer meets detention criteria. 
• A patient is detained under a Joel’s Law order, and there is a difference of opinion between the DMHP and the professional staff of the facility about whether a 14-day petition should be filed.   

How to File a Petition under the New Law
Family members or legal guardians may ask hospital emergency department staff on how to file a petition under Joel’s Law. Detailed information on the process is available on the Department of Social and Health Services website.  
 
Next Steps
Please let us know how the new law impacts your hospital and how the courts handle overriding a DMHP’s decision not to detain through Joel’s Law.