The Emancipated Patient

  

On our last blog post pseudo-Kristen laid the groundwork for what I'm about to say. In a comment there she said:

"I want the same scenario as the cancer patient. I want to say, as someone who is presently competent to make decisions, that this form of intervention was not life saving for me, it was harmful to me personally and drove me further from care. I want to be able to opt out of all forced treatment in case of psychiatric emergency…"

Presently this isn't possible. Although psychiatric advance directives exist, the reaction I've gotten from both doctors and patients is that they are essentially useless. Doctors don't like them because they can lose the ability to give involuntary medications---leading to a patient taking up a hospital bed who can't be treated. Patients don't like them because in many states they can't be used to prevent civil commitment.

This got me thinking. What would happen if advance directives had teeth? What would be the outcome if certain patients, after a certain process, were essentially exempt from ever being subject to involuntary care?

There is an analogous process we can look to in juvenile law. (Forgive the comparison, I'm not implying that psychiatric patients should be or are lesser than adults although I'm sure sometimes it feels that way.)

In juvenile law, if someone can prove that he is living independently of his parents and is not financially dependent on them, or is married and raising a child, he may have himself declared emancipated by a judge. This essentially grants the chronological juvenile the same legal rights as an adult---he can sign contracts, consent or refuse medical treatments, and do other things not otherwise available to children.

Imagine a process by which a psychiatric patient could claim absolute treatment decision rights. He has perfect insight, has a reasonable understanding of what his illness is and what the symptoms are, the effects these symptoms have on his loved ones and employment, and all the possible ramifications of getting sick (yes, even the risk of suicide or criminal acts). Let's temporarily suspend all the obvious objections to this from family, psychiatry, and society in general and assume for the sake of discussion that such a process were magically adopted by the legislature.

Voila. You're free.

What happens next?

Ideally, nothing different. The patient gets better on his own or with the voluntary help of a mental health professional on either an outpatient basis or with a consenting inpatient admission.

Maybe he doesn't get better, but also doesn't want the "help." He struggles along on a daily basis, maybe functional or not-as-functional as he might be. Maybe he doesn't struggle along. He stops eating, stops bathing, stops drinking, loses weight and his family gets worried. He still doesn't want the "help."

Here's the point where everybody really starts getting nervous. The ugly question, the question not to be said out loud by any psychiatrist:

Should a psychiatric patient have the right to let himself die? (I feel a bit sick just writing that.)

At this point let me be clear that my own personal opinion is NO. This is only a theoretical discussion.

Now let's make things even more complicated. I'm going to draw on a real life, actual legal opinion for this hypothetical.

Before our hypothetical patient drew up his motion for emancipation he had to be assessed as competent to file for emancipation. Psychiatric advance directives have a similar requirement. But the Federal Court of Appeals for the state of Vermont has said that this is a violation of the Americans with Disabilities Act since medical patients don't have to prove competence before signing a medical advance directive. In Vermont, a theoretically incompetent person could sign an advance directive refusing all psychiatric care.

Personally I think a formal emancipation process would be better than taking that risk.

I could take this one step further and make the hypothetical even more extreme by pointing out that Vermont also just passed a law allowing physician assisted suicide (what if you want the right to die due to an terminal-if-untreated psychiatric condition?). I think I'll stop here for now. This slope is slippery enough.

Discuss.

Run Faster, Jump Higher

Tonight (at least 'tonight' in Eastern Standard time in the the US), McKayla Maroney slipped on her second vault, and surrendered the gold medal to the Romanian competitor.  She was expected to win the Gold, and her distress and disappointment were obvious as the cameras zoomed in on her.  As someone who is neither athletic nor coordinated, I am in awe of all the Olympians, and I find it sad that a young woman would be so disappointed after winning a silver medal in a very competitive and difficult sport.  She was, I might add, no where near as gracious as Oscar Pistorius, the South African runner with the double leg prostheses who finished last in the 400 meter semi-finals.


Maroney reminded me that years ago, I published a short piece in the American Journal of Psychiatry, an Introspection piece titled "Going for the Gold." If you can't get in to the site, try here. (It's short, I promise).  

I suppose we all are left with the question of how good is good enough?  

Sentenced to the Max

Even if you're not interested in forensic psychiatry, I'd encourage our readers to wander over to The Crime Report to read an article by my esteemed colleague Dr. Erik Roskes. He has written an excellent piece entitled "Sentenced to the Max Without Benefit of a Trial", about the role of prosecutors in the continued confinement of incompetent and unrestorable criminal defendants.


I can't do it justice in a nutshell, but briefly it's about criminal defendants who will never be well enough to go to trial. Although the law requires that charges eventually be dropped in these cases, in Maryland prosecutors are pushing the limits of the law to keep defendants in the hospital as long as possible. Amazingly, public defenders do not oppose or question this. As a result, increasing numbers of state inpatient beds are tied up by forensic patients who would otherwise be released if non-dangerous. (Dangerous incompetent patients could still be civilly committed even if the charges were dropped.)

This practice has recently been criticized in a Justice Policy Institute report published last year. Still, the practice continues.

The End of the Stories: Patient B

Thank you to everybody who commented on my hypothetical jail patient scenarios in my post Send Them Away. Here is what happened to Patient B:

Patient B was sent out to the emergency room where he took a swing at the ER doc examining him and later another one at the consulting psychiatrist there (the police grudgingly uncuffed Patient B so the nurse could take vital signs. The police warned them not to.) They started a detox protocol which sedated him but he remained disoriented. The ER doc called the consulting psychiatrist back (who was waiting for Patient B to sober up so he could do an evaluation). The ER doc insisted that the consulting psychiatrist admit the patient to the psychiatry service as soon as possible for detox. The psychiatrist explained that he could not assess the need for admission, if any, until the patient sobered up. The ER doc walked away muttering something quietly under his breath. Several hours later the patient was no longer combative, but he was also no longer responsive. The psychiatrist came by to see if Patient B was sober yet and found him obtunded with a single dilated pupil. Patient B was rushed to radiology for an MRI. His intracranial bleed was caught just in time. After an extended stay on the neurosurgery service he was discharged to a rehabilitation facility.

Meanwhile, the local state's attorney had an attempted murder on his hands. The victim, a local used car dealer, narrowly survived a knife attack when Patient B walked into his girlfriend's apartment and found the car dealer...um...checking the oil. The girlfriend was unharmed but told the police that Patient B was there in violation of a protective order she had taken out against him two weeks before. Given the serious nature of the charge and the political implications of domestic violence in general, the prosecutor refused to drop the charges even though he knew that Patient B was in the hospital. They held the bail review hearing at the patient's bedside. Patient B was held with a no bail status and a correctional officer was posted at the patient's bedside. Leg irons bound the patient to the bed as he recovered from his neurosurgery. His ex-girlfriend, learning that Patient B had been near death, had an immediate change of heart and got into a fight with the attending officer when she insisted she needed to be at the bedside as well. Hospital security was called when she refused to leave, and she was ultimately taken into custody for disorderly conduct.

Ultimately Patient B was seen by the psychiatry consult liaison service. He was found to have moderately severe short term memory impairments, abstraction problems with difficulty reasoning, expressive aphasia and profound apathy. And he could only walk with assistance. His public defender took one look at Patient B sitting in the wheelchair in court and he knew he would have to request a competency assessment. He also knew Patient B would be found incompetent to stand trial, but not dangerous due to his physical impairments.

Patient B dropped into legal purgatory. He was incompetent to stand trial but could not be admitted to a psychiatric hospital for restoration because he was not dangerous. Even the neurosurgeons couldn't predict how much, if any, of his mental faculties would be regained over the longterm. The state's attorney's office refused to drop the charges because of the seriousness of the offense. When the statutory limit of incompetence was reached, the judge threw out the charges but the state's attorney immediately reindicted the defendant, thus restarting the clock. The case was appealed to the highest court in the state and a final opinion is pending.

Meanwhile, many many years later Patient B spends a few minutes every morning sipping coffee on the front porch of the assisted living facility the nursing home released him to. He hasn't heard from his girlfriend in many years although he has vague fond memories of motorcycle road trips with her hugging him from behind. His housemates---a demented elderly professor of economics and a frail former teacher---see him on the porch and exchange casual greetings. They think he is a shy but likable guy, a quiet but kind person.

More Forensic Stuff

I'm going to apologize to regular readers for missing your usual Shrink Rap fare. This blog isn't usually this heavy into forensic topics but since Dinah is on hiatus, I'm commandeering the blog to talk about my own interests.

I wanted to address some ideas Sunny brought up in my last post. Her comment was: "...I can't figure out why it is that when a psychotic person commits a crime, that "they" send the person to jail to take psych drugs so that they can become "normal" to stand trial. Weren't they mentally impaired at the time of the incident? Why would we, as a society, not consider the state that person was in at the time of the crime? I wonder how those people feel, when they "wake up" from a psychosis to find that they killed people. It must be awful."

There's a lot to talk about here. The first issue is why people have to become 'normal' to stand trial. This is something that is required by the American constitution. The Sixth Amendment gives every defendant the right to call and confront accusers. While defendants can voluntarily give up their right to be present at trial, they can't otherwise be tried in absentia. If someone is too mentally ill to understand what's going on in the courtroom, that's considered an absence (physically present, but mentally 'in absentia'.) This is the origin of the requirement for competency to stand trial.

The state---or more properly, the defense---does consider the mental state of the person at the time of the offense. This is done through a category of defenses known as 'mens rea' defenses---criminal defenses based upon some aberration of mental functioning. There are a lot of them: extreme emotional disturbance, heat of passion, intoxication and insanity. Mens rea defenses don't generally lead to an acquittal---the person doesn't 'walk'---it just reduces the level of guilt. So, for example, instead of being guilty of first degree murder a defendant may only be guilty of involuntary manslaughter. Exactly what you have to prove to make your case about the mental state will be determined by the law. Each state will have statutory or case law that defines insanity or other various mens rea situations.

The states takes mental state into account at sentencing, too. The defense can introduce all kinds of mitigating information for the judge (or jury, in a death penalty case) to consider.

Regarding how insanity acquittees feel when they 'wake up' and realize what they've done: oh yeah, awful---really awful. Particularly since many insanity acquittees commit offenses against their own families. (See the New York Times article I linked to in my last comment on yesterday's post.) Sometimes you wonder which is worse for them: the symptoms of active psychosis or an awful reality.

Budgets, Crime and What Happened to Stephanie

From the New York Times today we have a story entitled, "A Schizophrenic, A Slain Worker, Troubling Questions," a horrible story about a mentally ill man who killed a social worker in his group home. The story highlights the defendant's longstanding history of violence with several assaults in his past. He once fractured his stepfather's skull and his first criminal offense involved slashing and robbing a homeless man. (On another post on this blog Rob wondered why the charges were dismissed in that case; from experience I can tell you it's probably because the victim and only witness was homeless and couldn't be located several months later when the defendant came to trial.) The defendant, Deshawn Chappell, also used drugs while suffering from schizophrenia. Before the murder he reportedly stopped taking his depot neuroleptic and was symptomatic. The news story also suggested that he knew he was committing a crime: he got rid of the body, disposed of the car and changed out of his bloody clothes. Nevertheless, he was sufficiently symptomatic to be found incompetent to stand trial and was committed to a forensic hospital for treatment and restoration. At his competency hearing the victim's family thought that the defendant was malingering his symptoms, while the victim's fiance was distraught enough that he tried to attack Chappell in the courtroom. The point of the Times article appears to be an effort to link the crime to cuts in the Massachusetts mental health budget.

So what do I think about this story? (As Dinah would say, this is a 'Clink' thing.)

About the crime itself I have little to say. There's nothing that out-of-the-ordinary or unusual about this as a forensic case. I have no opinion about his legal sanity since I know nothing other than what's presented in the media (and I've had enough of my own cases covered in the media myself to take what I read with a large grain of salt!). Frankly, these kind of cases happen every day as you could tell by following the Psychiatry and the Law twitter feed.

Why does this story, of all the potential psychotic killer stories, showing up in the New York Times, and why is it showing up now?

Because New York is trying to "beef up" their assisted outpatient treatment law, of course. And the Times has come out in favor of it. They've had other articles in the paper promoting assisted outpatient treatment.

Now, I'm all in favor of advocating for improved mental health services as well as adequate training and reimbursement for well-qualified mental health staff. I just wish they wouldn't feed into the fear and public stereotyping of seriously mentally ill people to do it. That's my first reaction to this piece.

My second reaction is in response to this quote:

"The first time Mr. Chappell secured a state hospital bed — and the treatment that comes with it — was when he ended up behind bars."

And the observation by Chappell's mother:

"In 2007, Mr. Chappell, sentenced to a year in jail but required to serve only three months, ended up at the prison psychiatric hospital. When his mother visited him there, she said, she was heartened to see the effects of an enforced medication regimen. “This was the son I raised,” she said. “He talked about going back to school and getting a college degree.”

I'm going to link back to those quotes the next time I hear somebody comment that "locking people up doesn't do any good." There are some people---fortunately relatively few---who can only be treated in a secure environment because they are just too repetitively assaultive to be treated anywhere else. That's what forensic hospitals and prisons are for.

The Patient Who Didn't Like the Doc. On-Line.

KevinMD has a post up today by Tobin Arthur called

Online reputation can have career implications for physicians

Arthur also refers to a post on the AMA's website back in October by Amy Lynn Sorrel,

Negative online reviews leave doctors with little recourse

Good timing because I wanted to post a vignette about a friend who is distraught about the on-line reviews he's gotten from patients. To protect both the innocent and the guilty, I'm confabulating the details & demographics, but the gist of the story is real and I'd like to hear your comments.

Dr. Tom Shrinky (not his real name) is a friend of mine who practices in Sanetown, PA (not a real place). He's an excellent psychiatrist with a great reputation, a packed practice with a long wait for new patient entry, and he's as conscientious as they come: he carries his cell phone everywhere and he returns all calls within the day. Plus, he's a nice guy, though I may be biased because we're friends.

One day, a patient says to Dr. Shrinky, "Doc, you know, I Googled you, and it wasn't pretty." Alarmed, Tom goes to Google himself and discovers that he's got a patient review up on one of these rate-your-doc sites. The comments are strangely personal, they comment on his recent weight loss, and say that he's in bed with the drug companies. There are a couple of other reviews, all 5 star, all saying how he's the best shrink in the world, but his overall rating is 3 star, and you'd wonder if he wasn't dying from the comment.

Okay, you hate a restaurant, you zing it on Yelp and you don't go back.

But Tom believes he knows who put these comments up. He has a patient, a lawyer he sees for weekly psychotherapy sessions. The patient is often hostile towards him, often treats him in a demeaning fashion, and this relationship does not feel good. The patient left treatment once briefly, years ago, but returned because, "You shrinks are all nuts and you're better than Dr. Cashew." Why Tom took him back, I'll never know. Tom tries to get the patient to focus on his hostility as part of the treatment.

So, a drug rep did stop by the office once to drop off samples while the patient was in the waiting room, and the patient had made a comment about this. And Tom had lost a lot of weight recently-- he'd taken up running and before he knew it, he was doing half-marathons. He cut back on carbs, beer and soda, and 60 pounds had dropped off him over 14 months. He looked great, and everyone commented including his patients. This particular patient, however, had said nothing, and one day walked in, looked Tom up and down, and said, "Have you got cancer or AIDS?" So the comment on the review about how he'd lost a lot of weight recently and looked like he had cancer. Tom could think of no one else who was unhappy with him or who would do this.

Unlike the restaurant patron, Tom's patient continues to show up weekly for psychotherapy. Tom feels a bit intimidated by him (this is not new) and is always happy when he cancels. So far, Tom hasn't asked if he wrote the review, but it bothers him. Others have put up counter-reviews, but there is a second bad review, and Tom thinks this is also the same patient. A colleague mentioned that a patient he tried to refer would not see him because of the reviews.

So, my thoughts, and then please do add yours:

--It seems to me that sometimes people have negative feelings in the course of a psychotherapy (ah, we might call this transference, but it would be dismissive to attribute all negative feedback to negative transference). In this case, it's no longer a doctor-patient issue, but one that has potentially included the entire world via the Internet.

--Should Tom ask his patient if he's put up the reviews? What does that get him? The patient may become embarrassed or defensive, or he may say he didn't do it (and maybe he didn't?) and be angry at the accusation.

--How does a psychiatrist (or any doctor) continue to treat someone who publicly struck at their reputation?

--And here's another problem for the doc--- a patient who would do this might also go to the physician licensing board and complain, and so Tom may worry that to terminate this patient's care may incite the patient's anger and result in a complaint and investigation of his practice. The patient is a credible professional and a complaint from him would likely be taken quite seriously. While Tom is certain he's provided responsible care and has not violated any standards of practice, he's well aware that a Board investigation (if a complaint did progress to that) takes years and causes a great deal of expense and agony, and so he may well be worried about fanning any flames.

--And finally, Tom is worried about upsetting the patient. He's been taking care of this patient for years, and he doesn't want this to end badly.

So what should Dr. Tom Shrinky do?

Podcast Number 55: What Happens to Shooters with Mental Illnesses?

There has been a lot in the media recently about mental illness and it's relationship to violence.
In this episode we have ClinkShrink walk us through what happens to a mentally ill defendant in a violent crime. First, there is the question of Competence: is the defendant able to meaningfully participate in his/her trial, this is the present mental capacity. If the defendant never becomes competent, he generally remains in a forensic facility indefinitely. At some point (10 years in our state for a capital crime), the law requires a final disposition, and the defendant who is not likely to ever attain competence will be civilly committed and will remain in a forensic facility.

The second question is one of sanity at the time of the crime. ClinkShrink talks about the complexities of insanity evaluations and the rarity of having a Not Criminally Responsible plea. We discuss the idea that incidental mental illness is not enough to be found not guilty by reason of insanity, that the mental illness must have influenced the criminal behavior or obscured the defendant's ability to appreciate the criminality of his behavior. Finally, Clink talks about what happens after an insanity acquittee is released and what type of aftercare planning gets put into place.

The photo is Billy Bob Thornton in Slingblade--he's our example of an insanity acquittee.

Once again, thank you for listening and please do write a review on iTunes.

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