234 -Legal Issues in Adult Mental Health
Counselor Toolbox for Mental Health...

 
 
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Legal Issues in Adult
Mental Health Services
Instructor: Dr. Dawn-Elise Snipes
Podcast Host: Counselor Toolbox and Happiness Isn’t Brain Surgery

Objectives
~ Review common Legal issues in Adult Mental Health
~ Rights
~ Protection
~ Involuntary commitment
~ The ADA
~ Emotional Support Animals
Legal and Ethical Concepts
~ Principles of Ethics
~ Beneficence: Duty to act to benefit others
~ Non-Malfeasance: Do no harm
~ Autonomy: Respect rights of others to make decisions
~ Justice: Distribute resources equally
~ Fidelity: Maintain loyalty and commitment to patient
~ Veracity: Duty to communicate truthfully

Mental Health Laws:
Civil Rights and Due Process
~ Civil rights: people with mental illness are guaranteed same rights under federal/state laws as any other citizen
~ Due process in civil commitment: courts have recognized involuntary commitment to mental hospital is “massive curtailment of liberty” requiring due process protection, including:
~ Writ of habeas corpus: procedural mechanism used to challenge unlawful detention
~ Least restrictive alternative doctrine: mandates least drastic means be taken to achieve specific purpose

Mental Health Laws: Admission to the Hospital
~ Voluntary: sought by patient or guardian
~ Patients have right to demand and obtain release
~ Many states require patient submit written release notice to staff
~ Involuntary admission (commitment): made without patient’s consent
~ Necessary when person is danger to self or others, and/or unable to meet basic needs as result of psychiatric condition
~ Some states (i.e. Florida) have a substance abuse provision
~ Emergency involuntary hospitalization
~ Commitment for specified period (1-10 days) to prevent dangerous behavior to self/others
~ Observational or temporary involuntary hospitalization
~ Longer duration than emergency commitment
~ Purpose: observation, diagnosis, and treatment for mental illness for patients posing danger to self/others

Patients’ Rights
~ Right to treatment: requires that medical and psychiatric care and treatment be provided to everyone admitted to public hospital
~ Right to refuse treatment: right to withhold or withdraw consent for treatment at any time
~ Issue of right to refuse psychotropic drugs has been debated in courts with no clear direction yet forthcoming
~ Right to informed consent: based on right to self-determination
~ Informed consent must be obtained by physician or other health care professional to perform treatment or procedure
~ Presence of psychosis does not preclude this right

Advanced Directives
~ An advance directive is a written document that expresses your wishes in advance about what types of treatments, services and other assistance you want during a personal mental health crisis.
~ What are the benefits of having an advance directive?
~ A psychiatric advance directive can:
~ Promote your autonomy and empowerment;
~ Enhance communications between you, your doctor, treatment team and family;
~ Protect you from ineffective, unwanted or possibly harmful treatment or actions;
~ Help prevent crisis situations and reduce the use of involuntary treatment or safety interventions, such as restraint or seclusion.

What to include in an advanced directive
~ You can include:
~ Medications and dosages that you know are most helpful to you and those that you do not wish to receive
~ Names of facilities or healthcare professionals you want involved in your care
~ People who can help you with important activities (such as paying your bills, and taking care of your children, pets or plants).
~ People you do or do not want as visitors if you're hospitalized.
~ One of the more powerful features of an advance directive is your ability to designate someone else (an agent) to make decisions for you if you are admitted to a hospital.

Issue of Legal Competence
~ All patients must be considered legally competent until they have been declared incompetent through legal proceeding
~ Determination made by courts
~ If found incompetent, court-appointed legal guardian, who is then responsible for giving or refusing consent
~ Implied consent
~ Many procedures counselor performs has element of implied consent (e.g., giving medications)
~ Some institutions require informed consent for every medication given

Client Rights (Publicly posted)
~ Florida Statue Example
~ Treatment access
~ Informed consent
~ Individual dignity
~ Nondiscrimination
~ Each individual in treatment must be afforded the opportunity to participate in the formulation and periodic review of his or her individualized treatment or service plan to the extent of his or her ability to so participate.
~ Quality services
~ Each individual must be delivered services suited to his or her needs, administered skillfully, safely, humanely, with full respect for his or her dignity and personal integrity, and in accordance with all statutory and regulatory requirements.
~ Cigna Optum Aetna ASAM Magellan
~ Communication, abuse reporting and visitation including private mail
~ Care and custody of personal effects
~ Confidentiality
~ Counsel
~ Habeas Corpus to question the cause and legality of such retention

Rights Regarding Restraint and Seclusion
~ Doctrine of least restrictive means of restraint for shortest time always the rule
~ Legislation provides strict guidelines for use
~ When behavior is physically harmful to patient/others
~ When least restrictive measures are insufficient
~ When decrease in sensory overstimulation (seclusion only is needed)
~ When patient anticipates that controlled environment would be helpful and requests seclusion
~ Recent legislative changes have further restricted use of these means and some facilities have instituted “restraint free” policies

Patient Confidentiality
~ Ethical considerations
~ Confidentiality is right of all patients
~ Codes of Ethics assert duty of counselor to protect confidentiality of patients
~ Legal considerations
~ Health Insurance Portability and Accountability Act (HIPAA), 2003
~ Health information may not be released without patient’s consent, except to those people for whom it is necessary in order to implement the treatment plan
~ Exceptions
~ Duty to Warn and Protect Third Parties
~ Tarasoff v. Regents of University of California (1974) ruled that psychotherapist has duty to warn patient’s potential victim of potential harm
~ Most states have similar laws regarding duty to warn third parties of potential life threats
~ Staff counselor reports threats by patient to the treatment team
~ In most states, licensed clinicians and law enforcement can initiate involuntary commitment

Child and Elder Abuse Reporting Statutes
~ All states have enacted child abuse reporting statutes
~ Many states specifically require counselors to report suspected abuse
~ Numerous states have also enacted elder abuse reporting statutes
~ Agencies receiving federal funding (i.e., Medicare/Medicaid) must follow strict guidelines for reporting abuse of older adults

Tort Law Applied to
Psychiatric Settings
~ Protection of patients: legal issues common in counseling are related to failure to protect safety of patients
~ Protection of self
~ Counselors must protect themselves in both institutional and community settings
~ Important for counselors to participate in setting policies that create safe environment

Negligence/Malpractice
~ Negligence or malpractice is an act or a failure to act that breaches the duty of care and results in or is responsible for a person’s injuries
~ Elements necessary to prove negligence
~ Duty
~ Breach of duty
~ Cause in fact
~ Proximate cause
~ Damages Cause in fact
~ Evaluated by asking “Except for what the counselor did, would this injury have occurred?”
~ Proximate cause or legal cause
~ Evaluated by determining whether there were any intervening actions or individuals that were in fact the causes of harm to patient
~ Damages
~ Include actual damages as well as pain and suffering
~ Foreseeability of harm
~ Evaluates likelihood of outcome under circumstances

Determination of Standard of Care
~ Codes of ethics set standards higher than that of state law
~ Counselors are held to standards of care provided by other counselors possessing the same degree of skill or knowledge in same or similar circumstances
~ Hospital policies and procedures set up institutional criteria for care
~ Substandard institutional policies do not absolve counselor of responsibility to practice on basis of professional standards of care

Intervention: Suspected Negligence
~ Most states require legal duty to report risks of harm to patient
~ Counselor has obligation to report peer suspected of being chemically impaired
~ Report to supervisor or the board is requirement
~ If counselor knows physician’s orders need to be clarified or changed, it is counselor ’s duty to intervene and protect patient
~ Example:
~ Patient failed to tell doctor she was drinking a fifth each night
~ Patient is taking meds from multiple non-coordinated doctors
~ Patient is not taking meds as prescribed
~ Abandonment
~ Legal concept may arise when counselor does not leave patient safely back in hands of another health care professional before discontinuing treatment

The ADA
~ Prohibition of discrimination. No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any private entity
~ Place of public accommodation means a facility operated by a private entity whose operations affect commerce
~ Denial of participation. A public accommodation shall not subject an individual or class of individuals on the basis of a disability …to a denial of the opportunity to participate in or benefit from the …services, facilities, privileges …of a place of public accommodation.
~ Participation in unequal benefit. A public accommodation shall not afford an individual or class of individuals, on the basis of a disability …with the opportunity to participate in or benefit from a good, service, facility, privilege, advantage, or accommodation that is not equal to that afforded to other individuals.

The ADA
~ Integration: A public accommodation shall afford … services, facilities, privileges…to an individual with a disability in the most integrated setting appropriate to the needs of the individual.
~ Opportunity to participate. A public accommodation shall not deny an individual with a disability an opportunity to participate in such programs or activities that are not separate or different.
~ When a place of public accommodation is located in a private residence, the portion of the residence used exclusively as a residence is not covered by this part, but that portion used exclusively in the operation of the place of public accommodation or that portion used both for the place of public accommodation and for residential purposes is covered by this part.
~ The portion of the residence covered under paragraph (a) of this section extends to those elements used to enter the place of public accommodation, including the homeowner’s front sidewalk, if any, the door or entryway, and hallways; and those portions of the residence, interior or exterior, available to or used by customers or clients, including restrooms.

The ADA
~ This part does not prohibit discrimination against an individual based on that individual´s current illegal use of drugs.
~ Health and drug rehabilitation services.
~ (1) A public accommodation shall not deny health services, or services provided in connection with drug rehabilitation, to an individual on the basis of that individual´s current illegal use of drugs, if the individual is otherwise entitled to such services.
~ (2) A drug rehabilitation or treatment program may deny participation to individuals who engage in illegal use of drugs while they are in the program.
~ A public accommodation shall not discriminate on the basis of illegal use of drugs against an individual who is not engaging in current illegal use of drugs and who
~ Has successfully completed a supervised drug rehabilitation program or has otherwise been rehabilitated successfully
~ Is participating in a supervised rehabilitation program; or
~ Is erroneously regarded as engaging in such use.

Emotional Support Animals
~ An emotional support animal is a type of assistance animal that is recognized as a “reasonable accommodation” for a person with a disability under the federal Fair Housing Act (FHAct, 42 U.S.C.A. 3601 et seq.).
~ The assistance animal is not a pet according to the U.S. Department of Housing and Urban Development (HUD). HUD is the agency that oversees the FHAct and investigates claims of housing discrimination.
~ There are only two questions that HUD says a housing provider should consider with a request for an assistance animal as a reasonable accommodation:
~ (1) Does the person seeking to use and live with the animal have a disability — i.e., a physical or mental impairment that substantially limits one or more major life activities?
~ (2) Does the animal provide emotional support that alleviates one or more of the identified symptoms or effects of a person's existing disability?
~ (FHEO Notice: FHEO-2013-01 at page 2). A “no” answer to either of the questions means that a housing provider is not obligated to make a reasonable accommodation
~ HUD states that, “[f]or purposes of reasonable accommodation requests, neither the FHA nor Section 504 requires an assistance animal to be individually trained or certified.“
~ Both the ACAA and FHA mentioned above only apply to people and their pets with an ESA letter from a licensed mental health professional (LMHP). The registration part is completely unnecessary
Air Carrier Access Act
~ Airlines may require advanced notice for certain accommodations, such as medical equipment or electric wheelchairs, and may require notice for ESAs, depending on the individual airline guidelines.
~ The Air Carrier Act requires that airlines accommodate ESA owners who have verified identification.
~ ESA owners are not required to sit in any particular location unless the animal is large enough to obstruct an aisle that must remain unobstructed.
~ The Air Carrier Act also restricts airlines from charging fees for accommodating disabled persons with an ESA.
~ Jet Blue Southwest United
Avoiding Liability
~ Respond to the client
~ Educate the client
~ Comply with the standard of care
~ Supervise care
~ Adhere to the nursing process
~ Document carefully
~ Follow up and evaluate
~ Maintain a good interpersonal relationship with client and family

Summary
~ There are various legal issues in adult mental health regarding client’s rights
~ Involuntary commitment/treatment
~ Advocacy/preventing harm
~ Informed consent
~ Advanced directives
~ Emotional support animals