Suffering a psychotic break is a nightmare scenario for many people. Watching a loved one suffer may possibly be worse. Or worse yet would be watching a loved one falling into the hole of psychosis and being unable to get the help they need because of a bureaucracy that you never expected or a system that is, for all intents and purposes, broken.
A psychosis might be the symptom of a problem, but if the person experiencing it is too medicated to explain how they came to the point of breaking, then how can the system work for them. Too often, in the process of seeking psychiatric evaluations or treatments, some people fall through the cracks of the mental health system.
Who Gets Committed?
If someone in the emergency department at Good Samaritan Regional Medical Center appears to have significant mental health concerns such as paranoid delusions or talk of violence towards self or others, Benton County Health Department may get called in to provide a risk assessment, evaluation and recommendation regarding admission to a psychiatric unit – either voluntarily or as a custodial hold. Hospital staff make the final decision.
A psychotic episode may create challenges in determining the validity of a person’s reporting, but may not change the recommendation if it’s determined that the episode doesn’t present an imminent risk to the person or others, and is able to meet their basic needs in the immediate future, according to Dannielle Brown, behavioral health director, Benton County Health Department.
Brown said the county health department becomes responsible if a person is placed on a hospital hold, which initiates a pre-commitment investigation by the county. The process transitions from a treatment focus to a legal focus, determining if the person is at continuing risk and needs to be committed for up to 180 days. The recommendation is taken to the court, and a judge makes a ruling on commitment based on the pre-commitment report.
“The individual remains a patient of the hospital who is providing treatment, whether that is Good Samaritan or another inpatient hospital location,” Brown said in an email. “If the person is assessed to need a referral to the Oregon State Hospital by the hospital treatment team, the county is required to support this decision and assist with the referral but the hospital is responsible for the actual referral process to Oregon Health Authority.”
Noting that long-term psychiatric care, as was historically provided, is no longer an option in Oregon, Brown said placement in the Oregon State Hospital or any inpatient psychiatric hospital is short-term, with the intention of stabilizing the patient and moving them to the lowest level of care for ongoing support. That might include adult foster care or residential treatment, but neither of those are considered by the state to be long-term treatment options, according to Brown.
Looking at the numbers, the Benton County crisis team is busy, evaluating upwards of 15 people on any given day and also providing in-the-moment crisis counseling services. Most of the people the team sees don’t meet the criteria for inpatient admission, much less involuntary admission, Brown said.
“We average approximately 6-10 pre-commitment investigations in any given month, with an average of about 10% of these actually being high enough risk to require a civil commitment court hearing,” Brown said in the email.
And frequent visits to the emergency department won’t necessarily result in admission to a psychiatric ward either. The evaluation and assessment process remain the same each time – a determination is made as to whether the person is an imminent risk to self or others. Brown compared it to a person making repeated visits for a stomach ache that led to no findings requiring medical treatment, meaning the person would be sent home.
“There would need to be some medical condition that would require inpatient admission for treatment of a medical condition. This is the same for mental health conditions,” she said. “The determination is made around medical necessity/appropriateness for inpatient care.”
Limiting Funding, Resources
Oregon Revised Statutes (chapter 426) and Oregon Administrative Rules (309-019 and 309-033) contain rules that community mental health programs must follow for many of the services being provided. That includes crisis services and pre-commitment investigations. But Brown says the issue is less about laws and rules, and more about the limited funding and resources available for mental health services. She adds that behavioral health treatment services have been underfunded historically, in part due to a longstanding expectation that such treatment should be community based.
“There are not enough resources to support the number of individuals experiencing mental health conditions effectively. When looking at the money that is spent in medical care and treatment, mental health services make up an average of 3-5% of these dollars,” Brown said. “The medical system is receiving 95-97% of the dollars that are identified for treatment. The issue is not around the rules that must be followed, rather it is the limited availability of resources to support service provision.”
Brown said the mental health system has grown adept at managing dollars efficiently and doing as much as it can with as little resources as possible. She said when you add in the lack of parity for insurance companies to fund mental health treatment the same as they do medical services, the mental health system becomes hamstrung.
“We will continue to do the best we can with the limited resources we have available but the real need is to better fund the mental health treatment programs,” she said.
If someone is in crisis, and seemingly suddenly experiencing paranoid delusions, expressing thoughts of violence towards themselves or others, and also experiencing hallucinations, Benton County has crisis therapists available around the clock. Any community member can access the counselor of the day services during business hours by walking into the Health Services Building at 530 NW 27th Ave.
After-hours services are primarily provided at Good Samaritan Regional Medical Center’s emergency department. County crisis therapists will do crisis/risk assessments and provide in-the-moment crisis counseling services.
Good Samaritan Regional Medical Center did not respond to questions for this report.
What about Guardianship?
So, what if the person needs help, but doesn’t want it? What options does their family have? People have the right to refuse medical treatment even if it could kill them. However, if a person is found legally incapacitated – their decision-making is impaired to the extent they cannot safely care for themselves – someone else can petition the court for guardianship.
Attorney Rance Shaw with The Reynolds Law Firm said in an email that, when people are unable to make healthcare decisions for themselves, a healthcare representative will be needed to make medical decisions for them. The document appointing a healthcare representative must be signed and notarized while the person for whom it applies is still considered “capable.” When the person who has a healthcare representative is deemed “incapable,” then the representative may begin making decisions.
“The statute authorizing the appointment of a healthcare representative states, ‘Incapable means that in the opinion of the court . . . or in the opinion of the principal’s attending physician . . . a principal lacks the ability to make and communicate health care decisions to health care providers,’” Shaw said in the email. “In my experience, however, doctors are rightfully wary of ignoring the wishes of an individual who has not been found incapable by a court.”
Shaw said a guardianship is an extreme remedy, with the petitioner asking the court to strip autonomy from the allegedly incapacitated person. He said those seeking a guardianship must determine whether they’re dealing with stubbornness or if the person is actually unable to understand what’s happening. An informed decision made by a capable person, even if against medical advice, does not support a finding that a guardianship is appropriate.
“A guardianship is likely the best option when the proposed protected person has declining capacity (e.g., progressive dementia),” Shaw said. “Speaking purely anecdotally, individuals with declining capacity typically do not realize the point at which decision making authority should be handed to someone else. A guardianship is also likely the best option when the individual has or has attempted to inflict self-harm.”
Potential guardians should also weigh their ability to serve in the role and recognize the adversarial nature of guardianship proceedings, which could strain relations with a person in need of care. Shaw cited statistics that show the majority of proposed guardians are family members of the protected person and said because of the intense commitment required of the guardian, as well as the potential effect on family relationships, a guardianship should only be sought if it appears there are no other reasonable options for ensuring the safety of the individual in crisis.
Guardianships involving psychiatric patients in crisis are tricky, Shaw said. As noted above, whether temporary or indefinite, it’s an extreme remedy because it deprives a person of their autonomy. This is especially true when the petitioner seeks a guardianship without prior notice to the proposed protected person.
Shaw hopes the law will evolve to soften the adversarial nature of guardianship proceedings. He’s seen court-required mediation suggested as a reform method, and he thinks that when dealing with a psychiatric patient in crisis, the petitioner must be able to quickly obtain a temporary guardianship without prior notice to ensure the person does not commit self-harm.
He said mediation shortly after the appointment of the temporary guardian would provide the parties with the opportunity to explain their sides and get feedback from a neutral third party before (and hopefully instead of) heading to a contested case hearing to argue the necessity of a guardianship. Unlike a contested hearing, mediation would not be on the record, and the mediator facilitates the discussion without taking sides.
“I am not sure how feasible or successful this approach would be, but I believe there needs to be a path to a temporary guardianship over a psychiatric patient in crisis with a less deleterious effect on the relationship between the protected person and the petitioner/guardian,” Shaw said.
What’s the Process?
There are two avenues for pursuing a guardianship based on whether the situation is an emergency or not. If it’s not an emergency, someone files a petition for the appointment of a guardian, which contains information on the petitioner, proposed guardian (if not the petitioner), proposed protected person, physicians/counselors, contact information for people with knowledge of the incapacity, and a factual basis supporting the need for a guardianship.
The petition is then served on the protected person, along with a form allowing the person to object to the guardianship. The guardianship statutes include a list of everyone entitled to notice of proceedings, and written notices must be sent as well. At least 15 days must be given to object, and objections may be filed by the proposed protected person or anyone else who was notified.
During that time, the court sends someone to interview the proposed protected person, the proposed guardian, doctors, and others with relevant information, and then files a report with the court stating whether it is believed the guardianship is appropriate.
“Things get complicated when an objection is filed, so I’ll just say that a contested guardianship is time consuming, even more emotionally draining for the parties, and much more expensive,” Shaw said. “A non-emergency guardianship may continue for as long as the individual remains incapacitated, though the letters of guardianship (the court-stamped document giving the guardian its authority) expire each year. The guardian must file a report annually; the court will then issue new letters of guardianship.”
If it’s an emergency, two options exist for getting a temporary guardianship. With either, the court must find there is an immediate and serious danger to the person’s life or health, and that the person’s welfare requires immediate action in addition to the normal finding that the person is incapacitated. A temporary guardianship lasts for 30 days, though it may be extended for an additional 30 days upon a showing of good cause.
While 15 days of notice is required before the court may appoint a guardian in the normal course, only two days of notice is necessary before the appointment of a temporary guardian. However, the court may waive the two-day pre-appointment notice period if it finds that immediate appointment is necessary; if the court waives the two-day pre-appointment notice period, the petitioner must ensure that notices are sent within two days after appointment.
“A petition for a temporary guardianship is often coupled with a petition for a guardian for an indefinite period of time. Proceeding in this manner results in a seamless transition between the temporary guardianship and the guardianship for an indefinite period of time,” Shaw said. “The law does not require the two petitions to be combined and filed simultaneously, but I would encourage taking this approach if you believe a guardianship will be necessary for more than 30 days.”
In today’s part one, read a local woman’s story about facing the gauntlet of finding mental health care for her son.
By Cody Mann
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