Rights of Clients and Related Issues

LEGAL CONSIDERATIONS

Rights of Clients and Related Issues

Clients receiving mental health care retain all civil rights afforded to all people except the right to leave the hospital in the case of involuntary commitment (discussed later). They have the right to refuse treatment, to send and to receive sealed mail, and to have or refuse visitors. Any restric-tions (e.g., mail, visitors, and clothing) must be made for a verifiable, doc-umented reason. These decisions can be made by a court or a designated decision-making person or persons, for example, primary nurse or treat-ment team, depending on local laws or regulations. Examples include the following:

·    A suicidal client may not be permitted to keep a belt, shoelaces, or scissors because he or she may use these items for self-harm.

·    A client who becomes aggressive after having a particular visitor may have that person restricted from visiting for a period of time

·    A client making threatening phone calls to others out-side the hospital may be permitted only supervised phone calls until his or her condition improves.

The American Psychiatric Association (APA) developed Principles for the Provision of Mental Health and Sub-stance Abuse Treatment Services.

Involuntary Hospitalization

Most clients are admitted to inpatient settings on a volun-tary basis, which means they are willing to seek treatment and agree to be hospitalized. Some clients, however, do not wish to be hospitalized and treated. Health-care profession-als respect these wishes unless clients are a danger to them-selves or others (i.e., they are threatening or have attempted suicide or represent a danger to others). Clients hospital-ized against their will under these conditions are committed to a facility for psychiatric care until they no longer pose a danger to themselves or to anyone else. Each state has laws that govern the civil commitment process, but such laws are similar across all 50 states. Civil commitment or involun-tary hospitalization curtails the client’s right to freedom (the ability to leave the hospital when he or she wishes). All other client rights, however, remain intact.

A person can be detained in a psychiatric facility for 48 to 72 hours on an emergency basis until a hearing can be conducted to determine whether or not he or she should be committed to a facility for treatment for a specified period. Many states have similar laws governing the com-mitment of clients with substance abuse problems who represent a danger to themselves or others when under the influence.

Release from the Hospital

Clients admitted to the hospital voluntarily have the right to leave, provided they do not represent a danger to them-selves or others. They can sign a written request for dis-charge and can be released from the hospital against medical advice. If a voluntary client who is dangerous to himself or herself or to others signs a request for dis-charge, the psychiatrist may file for a civil commitment to detain the client against his or her will until a hearing can take place to decide the matter.

While in the hospital, the committed client may take medications and improve fairly rapidly, making him or her eligible for discharge when he or she no longer represents a danger. Some clients stop taking their medications after discharge and once again become threatening, aggressive, or dangerous. Mental health clinicians increasingly have been held legally liable for the criminal actions of such clients; this situation contributes to the debate about extended civil commitment for dangerous clients.

Mandatory Outpatient Treatment

Legally mandatory outpatient treatment (MOT) is the requirement that clients continue to participate in treat-ment on an involuntary basis after their release from the hospital into the community. This may involve taking pre-scribed medication, keeping appointments with health-care providers for follow-up, and attending specific treatment programs or groups (Cullen-Drill & Schilling, 2008). In the United States, all but eight states have laws for some type of MOT. A complete list can be obtained on the website for the Treatment Advocacy Center (2009). Benefits of MOT include shorter inpatient hospital stays, although these individuals may be hospitalized more fre-quently (Segal & Burgess, 2006a); reduced mortality risk for clients considered dangerous to self or others (Segal & Burgess, 2006b); and protection of clients from criminal victimization by others.

MOT is sometimes also called conditional release or outpatient commitment. Court-ordered outpatient treat-ment is most common among persons with severe and persistent metal illness who have had frequent and multi-ple contacts with mental health, social welfare, and crimi-nal justice agencies (Swartz, Swanson, Kim, & Petrila, 2006). This supports the notion that clients are given sev-eral opportunities to voluntarily comply with outpatient treatment recommendations and that court-ordered treat-ment is considered when those attempts have been repeat-edly unsuccessful. The court’s concern is that clients with psychiatric disorders have civil rights and should not be unreasonably required to participate in any activities against their will. Another concern is that once court-ordered treatment was permitted, it would be used with ever-increasing numbers of people. However, such an increase has not occurred (Geller, Fisher, Grudzinskas, Clayfield, & Lawlor, 2006). Communities counter that they deserve protection against dangerous people with histories of not taking their medications and who may become threats.

Conservatorship

The appointment of a conservator or legal guardian is a separate process from civil commitment. People who are gravely disabled; are found to be incompetent; cannot pro-vide food, clothing, and shelter for themselves even when resources exist; and cannot act in their own best interests may require appointment of a conservator. In these cases, the court appoints a person to act as a legal guardian who assumes many responsibilities for the person, such as giv-ing informed consent, writing checks, and entering con-tracts. The client with a guardian loses the right to enter into legal contracts or agreements that require a signature (e.g., marriage or mortgage). This affects many daily activ-ities that are usually taken for granted. Because conservators or guardians speak for clients, the nurse must obtain con-sent or permission from the conservator. Some states dis-tinguish between conservator of the person (synonymouswith legal guardian) and conservator of financial affairs only––also known as power of attorney for financial matters.

Least Restrictive Environment

Clients have the right to treatment in the least restrictive environment appropriate to meet their needs. It means that a client does not have to be hospitalized if he or she can be treated in an outpatient setting or in a group home. It also means that the client must be free of restraint or seclusion unless it is necessary.

Restraint is the direct application of physical force to a person, without his or her permission, to restrict his or her freedom of movement. The physical force may be human or mechanical or both. Human restraint occurs when staff members physically control the client and move him or her to a seclusion room. Mechanical restraints are devices, usually ankle and wrist restraints, fastened to the bed frame to curtail the client’s physical aggression, such as hitting, kicking, and hair pulling.

Seclusion is the involuntary confinement of a person in a specially constructed, locked room equipped with a secu-rity window or camera for direct visual monitoring. For safety, the room often has a bed bolted to the floor and a mattress. Any sharp or potentially dangerous objects, such as pens, glasses, belts, and matches, are removed from the client as a safety precaution. Seclusion decreases stimula-tion, protects others from the client, prevents property destruction, and provides privacy for the client. The goal is to give the client the opportunity to regain physical and emotional self-control.

Short-term use of restraint or seclusion is permitted only when the client is imminently aggressive and danger-ous to himself or herself or to others, and all other means of calming the client have been unsuccessful (see Chap-ter 10). For adult clients, use of restraint and seclusion requires a face-to-face evaluation by a licensed indepen-dent practitioner within 1 hour of restraint or seclusion and every 8 hours thereafter, a physician’s order every 4 hours, documented assessment by the nurse every 1 to 2 hours, and close supervision of the client. For children, the physician’s order must be renewed every 2 hours, with a face-to-face evaluation every 4 hours. The nurse assesses the client for any injury and provides treatment as needed. Staff must monitor a client in restraints continuously on a 1:1 basis for the duration of the restraint period. A client in seclusion is monitored 1:1 for the first hour and then may be monitored by audio and video equipment. The nurse monitors and documents the client’s skin condition, blood circulation in hands and feet (for the client in restraints), emotional well-being, and readiness to discon-tinue seclusion or restraint. He or she observes the client closely for side effects of medications, which may be given in large doses in emergencies. The nurse or designated care provider also implements and documents offers of food, fluids, and opportunities to use the bathroom per facility policies and procedures (Joint Commission on Accreditation of Healthcare Organizations, 2008).

As soon as possible, staff members must inform the cli-ent of the behavioral criteria that will be used to determine whether to decrease or to end the use of restraint or seclu-sion. Criteria may include the client’s ability to verbalize feelings and concerns rationally, to make no verbal threats, to have decreased muscle tension, and to demonstrate self-control. If a client remains in restraints for 1 to 2 hours, two staff members can free one limb at a time for movement andexercise. Frequent contact by the nurse promotes ongoing assessment of the client’s well-being and self-control. It also provides an opportunity for the nurse to reassure the client that restraint is a restorative, not a punitive, procedure. Fol-lowing release from seclusion or restraint, a debriefing ses-sion is required within 24 hours.

The nurse also should offer support to the client’s fam-ily, who may be angry or embarrassed when the client is restrained or secluded. A careful and thorough explana-tion about the client’s behavior and subsequent use of restraint or seclusion is important. If the client is an adult, however, such discussion requires a signed release of infor-mation. In the case of minor children, signed consent is not required to inform parents or guardians about the use of restraint or seclusion. Providing the family with infor-mation may help prevent legal or ethical difficulties. It also keeps the family involved in the client’s treatment.

Confidentiality

The protection and privacy of personal health information is regulated by the federal government through the Health Insurance Portability and Accountability Act (HIPAA) of 1996. The law guarantees the privacy and protection of health information and outlines penalties for violations.

Mandatory compliance with the Final HIPAA Privacy Rule took effect on April 14, 2003, for all health-care pro-viders, including individuals and organizations that pro-vide or pay for care. Both civil (fines) and criminal (prison sentences) penalties exist for violation of patient privacy. Protected health information is any individually identifi-able health information in oral, written, or electronic form. Mental health and substance abuse records have additional special protection under the privacy rules.

Some believe that these strict confidentiality policies may pose a barrier to collaboration among providers and fami-lies (Chen, 2008). In community mental health settings, compliance with the privacy rule has decreased communi-cation and collaboration among providers and communica-tion with family caregivers, which may have a negative impact on patient care as well as the rights of families (Gray, Robinson, Seddon, & Roberts, 2008). Education programs for clients and families about the privacy regulation as well as establishment of open lines of communication between clients and families before a crisis occurs may help decrease these difficulties.

Duty to Warn Third Parties

One exception to the client’s right to confidentiality is the duty to warn, based on the California Supreme Court decision in Tarasoff vs. Regents of the University of California. As a result of this decision, mental health clinicians have a duty to warn identifiable third parties of threats made by clients, even if these threats were discussed during therapy sessions otherwise protected by privilege. Based on the Tarasoff deci-sion, many states have enacted laws regarding warning a third party of threats or danger. The clinician must base his or her decision to warn others on the following:

·    Is the client dangerous to others?

·    Is the danger the result of serious mental illness?

·    Is the danger serious?

·    Are the means to carry out the threat available?

·    Is the danger targeted at identifiable victims?

·    Is the victim accessible?

For example, if a man were admitted to a psychiatric facility stating he was going to kill his wife, the duty to warn his wife is clear. If, however, a client with paranoia were admitted saying, “I’m going to get them before they get me,” but providing no other information, there is no specific third party to warn. Decisions about the duty to warn third parties usually are made by psychiatrists or by qualified mental health therapists in outpatient settings.