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To practice psychiatric-mental health nursing, nurses must understand the basic legal aspects of caring for psychiatric clients. Each state has laws regulating the care and treatment of the mentally ill. Such laws attempt to balance protection of the mentally ill client's civil rights with the preservation of public safety. However, as legislation evolves to meet society's needs, legal answers to problematic situations may not always be available. The nurse may be faced with an ethical dilemma when laws or guidelines for handling particular problems are ambiguous or absent. Commonly with psychiatric clients, there are no specific answers for their struggles and complicated life events. Understanding basic legal concepts helps the nurse establish a structure to effectively address complex client issues. This chapter briefly examines many legal issues, including hospital commitment, events' rights, informed consent, confidentiality and privileged com-medication, competence and incompetence, the right to receive or refuse treatment, restraints, tort law, client advocacy, and manors' rights.
| TYPES OF COMMITMENTS |
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A person enters a psychiatric hospital for treatment voluntarily or involuntarily. Most individuals who are mentally ill are aware that they have a problem and voluntarily commit themselves: more than half of all admissions to state psychiatric hospitals are voluntary. A person who manifests an extremely disorganized emotional state and is unable to make decisions, perform self-care, or cope with the stress of daily living may be hospitalized. For a voluntary commitment to occur, a person must request or agree to be hospitalized. After meeting the admission criteria, the person completes the necessary paperwork and signs into the facility. Family members, friends, or health care providers can persuade a person to commit voluntarily. If a person is clearly at risk and doesn't make a voluntary commitment, then another person can legally pursue an involuntary commitment. (See Types of Commitments.)
When individuals are committed to a health care facility voluntarily, they retain the right to request a discharge. If the client is a child, the parents or guardian must request the discharge. When a client wishes to be discharged from a psychiatric facility all states except California have laws that give the family and health care providers time to review the client's mental health status. During this reevaluation period, family or staff can help the client decide whether leaving the facility is warranted. This period may also be used to decide whether the client's voluntary admission should be changed to an involuntary commitment. Such a change is based on the client's potential for dangerous behavior or need for further treatment.
When a health care provider or family member believes that a person needs hospitalization but that person is unwilling to be hospitalized, a petition can be filed for involuntary commitment.
A hearing is then held to determine if the person meets the criteria for mandated treatment. All states allow individuals to be hospitalized against their will if civil commitment requirements are met. Clients may be held involuntarily if they manifest suicidal, homicidal, psychotic, violent, or paranoid behaviors. The evidence the state must produce to proceed with a civil commitment is based on Addmgton v. Texas, 99 S. Ct. 1804 (Texas, 1979), which states that for a person to be involuntarily committed, there must be "clear and convincing evidence" of danger to himself or others. Some state laws also allow involuntary commitment of a person who is developmentally disabled, a substance abuser, or a mentally disabled minor.
Depending on the person's condition and other circumstances, involuntary commitment may be pursued on an emergency, observational, indeterminate, or outpatient basis.
Emergency commitment is used by the state to hospitalize a person who presents an imminent danger to self or others. The process begins with a petition filed by a family member, health care provider, or local government agency, such as the police. A psychiatrist must provide documentation validating the necessity of this commitment. A probable cause hearing is held to determine what additional care and treatment the person requires. In most states, a person may be committed on an emergency basis for up to 3 days while further treatment decisions are made.
In an observational or a temporary involuntary commitment, a seriously mentally ill person can receive additional treatment after the emergency commitment period has ended. During this time, the client can be adequately diagnosed and a formal treatment plan can be initiated. The time period for an observational commitment varies from state to state. This type of commitment begins with an application completed by a family member, guardian, or health care provider. Hospitalization typically results from medical certification by two psychiatrists, judicial review, or approval by a district attorney. After the observational commitment period, the client may be discharged, encouraged to stay at the hospital voluntarily, or committed for a longer period after a new petition is filed.
Indeterminate or extended commitment provides continuing care for a person with serious mental illness. Because an indeterminate commitment usually lasts from 60 to 180 days, most states require a judicial hearing to determine if the person's mental illness is severe enough to warrant it.
Finally, another form of involuntary commitment is outpatient commitment. In many states, a court can legally require a person. to participate in specific outpatient treatments recommended b\ a health care provider. Outpatient commitment aims primarily to maintain clients and prevent relapse. For example, clients who are likely to stop taking their medications after they leave the hospital risk reverting to serious mental illness, requiring more hospitalization. This repetitive cycle, seen in severely mentally ill clients, is known as the "revolving door phenomenon." (See Outpatient Commitment Criteria for the Client and Community: page 22, and Commitment Process, page 23.)
Ideally, a psychiatric client is discharged from the hospital when no longer posing a danger to self and others and treatment goals have been met. All discharges require a doctor's written order. If a voluntarily committed client requests discharge when a doctor's order is not present, the client signs a statement indicating that the discharge is against medical advice (AMA). Sometimes a client who is voluntarily committed may leave the facility without following discharge procedures. This is called elopemen:, Clients who elope usually are returned to the facility by relatives or law enforcement officials, but some return of their own accord. Involuntarily committed clients may not leave whenever they desire. A client's length of stay usually is specified in an emergency or observational commitment. In an extended involuntary commitment, the client's case is reviewed at specified intervals to determine when it is reasonable for the client to return to the community.
| OUTPATIENT COMMITMENT CRITERIA FOR THE CLIENT AND COMMUNITY |
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Client criteria
Community criteria
Adapted with permission from Geller, J.L. "On being 'committed' to treatment in the community," Innovations & Research 2(1): 23-27,1993. |
A psychiatric discharge may be conditional, absolute, or judicial. In & conditional discharge, the client is given specific instructions on living arrangements, outpatient treatment requirements, and behaviors to avoid. If the client violates the conditions of the discharge, re-hospitalization may be instituted. When the client satisfies the requirements of the conditional discharge, the hospital affects an absolute discharge, which carries no legal requirement for additional treatment. If a client discharged in this manner were to return to the hospital in the future, a new admission would be initiated. In a judicial discharge, a client or family member can petition for discharge even when the hospital advises against it. The judicial discharge provides an opportunity for the client to appeal to the state for discharge.
It is essential to keep in mind that inpatient hospitalizations are based on "medical need" and lengths of stay are usually kept to a minimum. A process known as utilization review monitors the necessity and appropriateness of both inpatient hospitalization and outpatient treatment. Insurance companies and third party payers for psychiatric care employ this utilization review as a basis for authorizing specific types and lengths of treatment. When clients have used all their insurance benefits and can't otherwise pay, they can be discharged from a facility even if staff believes that the discharge is premature or not in the client's best interests.
| COMMITMENT PROCESS |
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All psychiatric clients have rights. Nurses can best advocate for psychiatric clients by being familiar with their state laws governing treatment of persons with emotional disorders. Sometimes clients may have some of their rights limited by their inpatient hospitalization. A conflict can exist between the client's civil rights and the psychiatric facility's mandate to provide safe and effective health care.
| MENTAL HEALTH BILL OF RIGHTS |
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Here is a summary of the patient's bill of rights from the 1980 Mental Health Systems Act. The client has the right to:
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In clinical settings nurses are most concerned about informed consent, confidentiality, and legal disclosure. Other issues that directly address client care issues are the right to treatment, the right to refuse treatment, the least restrictive alternative, and the use of restraints and seclusion. Brief descriptions follow. (For more information on client rights, see Mental Health Bill of Rights, and Confidentiality Guidelines.)
| CONFIDENTIALITY GUIDELINES |
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Psychiatric and mental health nursing encompasses more than the protection of client rights and the provision of effective health care. It also requires that nurses dispel myths about mental disorders and advocate for the mental health needs of all people. Nurses play a paramount role in preventing illness and promoting mental health.
An advocate communicates or presents information on behalf of others so that their concerns are heard and acted on. Nurses have historically advocated for others not only to correct client mistreatment but also when they assume a proactive stance to protect client interests. Nurse advocacy includes educating people about mental health, the mental health system, and their personal rights in the managed care setting. Nurse case managers serve as advocates as they coordinate the many facets of care necessary for effective mental health treatment.
Nurses have made their voices heard as they advocate for client health care needs, participate in the health care reform process, and strive to change state laws. Of particular significance is the work done by nurses to elevate standards of nursing care and define the scope of nursing practice. The legal aspects of nursing practice are delineated within each state's nurse practice act. In addition, the various functions and clinical practice standards for basic and advanced psychiatric nurses are described in the American Nurses Association's Statement on Psychiatric-Mental Health Clinical Nursing Practice and Standards of Psychiatric-Mental Health Clinical Nursing Practice.
On the national level, nurses can work to change mental health laws by making government officials aware of the issues that affect people with mental disorders. By providing health care testimony at government hearings and lobbying through professional nursing organizations, nurses can ensure that the concerns of the mentally ill are heard. On the local level, nurses can serve on institutional grievance committees, develop services geared to specific populations, and educate the community through involvement with public service groups. These advocacy activities require a high level of commitment, current knowledge of the issues and trends that affect mental health treatment and care delivery, and a strong sense of professional autonomy.
Nurses combine their knowledge of client needs and rights with their interactive skills to further the causes of mentally ill people. A basic understanding of relevant laws and the ability to communicate with others on behalf of clients are the prerequisites of effective client advocacy. (See Issues that Demonstrate Client Advocacy, page 27.)
Besides safeguarding the rights of adults, nurses serve as advocates for children. In inpatient and outpatient settings, nurses give information to minors that are appropriate to their developmental stage and cognitive ability. Including young people in explanations of the treatment process prepares the way for cooperation, communication, and the establishment of a working relationship.
Historically, minors have had few legal rights as clients. A person under age 18 is viewed by the law as incompetent to make personal health care decisions. Parents are responsible for making treatment decisions, especially the decision to petition for involuntary commitment to a psychiatric facility. In most states, a minor seeking treatment must obtain permission from the parents or legal guardian. Such permission must be sought until the person reaches age 18. In many facilities, children and adolescents are asked to sign consent forms along with their parents or guardians.
Some states allow adolescents to obtain treatment for substance abuse, contraception, and psychiatric help without the consent of parents or guardians. Also, if a minor is in the military, married, or is a parent, some states give the minor legal authority to make personal decisions. Allowing the minor to make choices or give permission for treatment is known as assent.
| ISSUES THAT DEMONSTRATE CLIENT ADVOCACY |
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The following actions demonstrate ways in which nurses can actively serve as advocates for their clients in the mental health setting.
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The most important struggle nurses will meet in practice is the translation of laws from theory into practice. Making the legal and human rights of clients become the foundation of care poses many challenges. Laws cannot guarantee all of a client's human rights. A practitioner's personal values and beliefs determine how the spirit of the law is reflected in treatment situations for each client. Nurses must continue to support laws that protect the clients' rights and then follow through on their implementation. In addition, the knowledge base of clinicians can be used as an entry point to advocate for clients' rights and adequate mental health treatment. A persistent presence is required in order for nurses to make changes in the laws. Contemporary issues and problems that affect the health care system benefit from the views and testimony of psychiatric and mental health nurses. Using a global approach to view client concerns, nurses can provide comprehensive information for legislators to use in decision making. Psychiatric nurses must be at the forefront to make decisions; they must develop and test new strategies for providing health care that reflect professional obligations and acknowledgment of clients' rights.