I Do Solemnly Swear

In Maryland, there is a tiered formulary for Medicaid patients.  What this means is that the physician must try a first tier medication before a second tier medication.  What makes a medication a tier one medicine? The cost.  Some medicines are more expensive than others, and beside that, the state contracts with pharmaceutical companies for special rates.  So in Maryland, if you want to prescribe risperdone, it's not a problem.  If you want to prescribe some of the other atypical antipsychotic medications, you need to fill out a prior authorization form giving the diagnosis, the target symptoms, the name of the medicine, the dose, strength, frequency, and quantity.  The doc needs to check off whether it's being continued from an inpatient setting, if there is a condition or drug interaction which prevents use of a preferred (i.e., cheaper) medication, s/he must list other medications that have been tried with their strength, frequency, dates of use, "compliance (at least 6 days/wk)" and reason for discontinuation.  Oh and the demographics of all involved including the doc's NPI number, specialty, address, fax, email, phone, and the patient's name, DOB, address, Medicaid number and height and weight and gender.  Just a simple little form.

Finally, at the bottom of the form, the prescriber must sign off on the following statement, "I certify that the benefits of antipsychotic treatment for this patient outweigh the risks."  So like how does anyone know that before the patient even takes the pill?  Risk benefit is an individual issue and depends on  a balance of side effects and response to a medication.  Until the pill is swallowed (and perhaps until quite a few pills are swallowed), we don't know if the patient will have side effects, or if the patient's symptoms will even respond.  Mind you, if the patient doesn't respond to the initial dose and we to raise it, the doctor needs to fill the form out all over.  I think the state needs fortune tellers, not doctors. 

Running Out of Psychiatric Beds

I read today that Eastern Ontario has started a bed registry to keep track of where open psychiatric beds are available. This is something I've long advocated. The United States now has less than 10% of the beds it used to have 50 years ago. Granted, treatment has improved and community resources are enhanced. But there are still areas that often do not have a sufficient number of hospital beds for folks needing acute inpatient psychiatric care.

The Ontario story described in the Ottawa Citizen states that six of the area hospitals have been connected to a computerized "bed board" that provides real-time information on who has an appropriate bed available. This saves time in the ER and gets patients to needed treatment more quickly. Otherwise, calls need to be made to each individual hospital, which is very time-consuming.

And it is not uncommon for all the beds to be full. Last July there was an EMTALA complaint against a hospital in Maryland because a patient sat in the ER all weekend, and this hospital said they had no beds to admit the patient to. The Department of Health and Mental Hygiene investigated the complaint and found that, indeed, the hospital was full that weekend. The ER's record indicated that all the hospitals (except the state hospitals) were called that weekend and all indicated their beds were full. So, DHMH visited every hospital (about 28, I think) thinking that surely one of them had an empty bed they were hiding. What they discovered was that every single psychiatric bed in the state was full.

Unfortunately, we have no way of determining how often this happens, but we know if happens often enough. A "bed board" like this would be very helpful in (1) quickly finding beds when needed, and (2) keeping track of the extent of this problem. Having patients wait in ERs for days is unsafe and is even discriminatory. How many people with stroke or uncontrolled diabetes sit in ERs for days waiting to find a bed for treatment? I'd like to hear others' thoughts on how this problem can be addressed.

[Note: my apologies to our readers for not blogging or commenting much over the last year or so. I plan to be more engaged again in Shrink Rap going forwards. I'll never talk as much as Dinah does, but I'll get some words in :-]

The NAMI Mental Health Report Card: Grading the States 2009

The National Alliance on Mentally Ill Mental Illness came out with their report card on how each state is taking care of mental health issues. The national average is a big, fat D. As the kids would say, "epic FAIL!".

Only 6 states scored a B (sorry, no A's): Connecticut, Maine, Maryland, Massachusetts, New York, and Oklahoma. Nice to see in Maryland we moved from a C in 2006 to a B.

What prevents us (all states) from doing better?

Tarasoff Overview & Inservice

Dinah's post Johnny Get Your Gun generated a lot of interest in and comments about public safety and the mental health professional's duty to warn or protect. Some readers commented and cited the Tarasoff case, which made me think a quick inservice was in order. Many of our readers aren't mental health professionals or aren't American, so it's not really fair to leave them without any context for the discussion. Also, many American mental health professionals have heard of Tarasoff but may not really be aware of the limitations or extent of this decision.

First some background:

In 1969 a Berkeley college student, Prosenjit Poddar, became enamored of co-ed Tatiana Tarasoff. He pursued her to the extent that police got involved. They detained Poddar and referred him to the college counselling center where he was seen by a psychologist. The psychologist consulted with his superior at the center, and both decided that Poddar did not need to be hospitalized. Poddar later shot and killed Tarasoff.

Tarasoff's family sued the university, the police, and the mental health professionals for failing to hospitalize Poddar. The suit was originally dismissed by the California Supreme Court (in a case now known as Tarasoff I) because all of the defendants were government employees who were acting within their discretion regarding the hospitalization decision. Thus, they were covered by government immunity. Also, at the time no mental health professional had any duty to a third party---the clinician's only duty was to the patient. The suit was dismissed without prejudice, meaning that the plaintiffs were free to refile the suit on other grounds. The California Supreme Court hinted in their opinion that if the suit had been filed on the grounds of failure to warn or protect the defendants would not be immune from suit. The plaintiffs took the hint and refiled on these grounds.

This led to the case known as Tarasoff II, in which the California Supreme Court found for the first time that mental health professionals had a duty to protect (not just warn) third parties of danger from their patients.

Now the thing to remember about case law is that opinions are only binding on the regions that the appellate court has jurisdiction over. The Tarasoff cases were decided by the California Supreme Court and were binding only in California. Only the U.S. Supreme Court can issue opinions that apply to the entire country. So how did this idea spread across the country?

If I were a complete cynic I'd answer: Blame it on the lawyers. Being only a partial cynic, my answer is that the creation of this new duty created a new fertile ground for recovery in case of injury. A flurry of cases in other states followed the reasoning in Tarasoff and laid the groundwork for mandatory warnings in other jurisdictions. A nice overview of the current state of national Tarasoff laws can be found here.

Fortunately, the Shrink Rappers live in Maryland. Our professional organization took a proactive approach to this impending issue and crafted a Tarasoff duty by statute rather than waiting for it to be created through a lawsuit. It was designed thoughtfully and narrowly so the duty for our clinicians is not as broad as that which is implied in the California cases. It can be found in Courts and Judicial Proceedings (granting immunity for certain actions) and it states:

§ 5-609. Mental health care providers or administrators.

(a) Definitions.-

(1) In this section the following words have the meanings indicated.

(2) "Mental health care provider" means:

(i) A mental health care provider licensed under the Health Occupations Article; and

(ii) Any facility, corporation, partnership, association, or other entity that provides treatment or services to individuals who have mental disorders.

(3) "Administrator" means an administrator of a facility as defined in § 10-101 of the Health - General Article.

(b) In general.- A cause of action or disciplinary action may not arise against any mental health care provider or administrator for failing to predict, warn of, or take precautions to provide protection from a patient's violent behavior unless the mental health care provider or administrator knew of the patient's propensity for violence and the patient indicated to the mental health care provider or administrator, by speech, conduct, or writing, of the patient's intention to inflict imminent physical injury upon a specified victim or group of victims.

(c) Duties.-

(1) The duty to take the actions under paragraph (2) of this subsection arises only under the limited circumstances described under subsection (b) of this section.

(2) The duty described under this section is deemed to have been discharged if the mental health care provider or administrator makes reasonable and timely efforts to:

(i) Seek civil commitment of the patient;

(ii) Formulate a diagnostic impression and establish and undertake a documented treatment plan calculated to eliminate the possibility that the patient will carry out the threat; or

(iii) Inform the appropriate law enforcement agency and, if feasible, the specified victim or victims of:

1. The nature of the threat;
2. The identity of the patient making the threat; and
3. The identity of the specified victim or victims.

(d) Patient confidentiality.- No cause of action or disciplinary action may arise under any patient confidentiality act against a mental health care provider or administrator for confidences disclosed or not disclosed in good faith to third parties in an effort to discharge a duty arising under this section according to the provisions of subsection (c) of this section.

[1989, ch. 634; 1997, ch. 14, § 9; 1999, ch. 44.]

The key points compared to the Tarasoff cases are that the statute requires imminent danger to an identifiable victim. Clinicians are not required to foresee danger to the general public, nor are they required to predict dangerousness into the indefinite future. Clinicians are given the discretion either to warn the victim or to carry out a protective plan; hospitalization is not mandatory. Regardless, a decision to break confidentiality is shielded from liability if the clinician is acting in good faith.

Dangerous on the Outside

[posted by dinah, not ClinkShrink]

The Maryland Psychiatric Society Council Chairman writes:

A case currently working its way through the Maryland legal system may jeopardize our ability to treat involuntary patients who are refusing medications.

To go before a Medication Review Panel, a patient must have already been deemed psychiatrically ill and dangerous outside the hospital by an Administrative Law Judge. A lower court decision in Kelly v. DHMH changes the interpretation of the Medication Review Panel law to require dangerousness inside the hospital in order to justify forced medication. This creates a situation where a patient, committed to the hospital by an Administrative Judge because they are dangerous if discharged, cannot be treated because they are not dangerous inside the hospital. The patient would therefore have to remain in the hospital indefinitely without proper treatment and with little chance of safe discharge.

--bolding mine, letter excerpted with permission.

I'm not an inpatient psychiatrist, and I'm sure ClinkShrink will have volumes to add-- ah, the case in point is one of an inpatient at Patuxent, a forensic facility-- but I'm wondering how this works.

Let me try for a scenario. Patient is delusional about a neighbor, thinks the neighbor is implanting electrodes in his body while he sleeps, might need to kill neighbor (remember, I'm inventing this, please feel free to add a better fictional case). He's hospitalized, where he's free from delusional intervention, says he still might need to kill the neighbor, but is not violent on the inpatient unit, refuses meds, can't be forced to take them-- he's not dangerous in the hospital-- and can't be discharged because he remains delusional about neighbor and potentially is homicidal. For the sake of completeness in my fictional scenario, the neighbor exists and is not implanting any electrodes in anyone.

I would contend that since the patient's premise is delusional, his reality testing impaired, there is no guarantee that he is not dangerous in the hospital (actually, there is no guarantee that anyone is safe anywhere, but....). What is to say he won't suddenly become delusional about a nurse, or believe that the neighbor has entered his hospital room (delusions do tend to follow people) and what is to say he won't elope from a locked unit? I have worked in three different psychiatric hospitals where inpatients have committed suicide on the units-- if people are hospitalized to prevent suicide, it's not totally fool-proof.

Somewhere in here there is the assumption that psychiatrists and/or judges can predict violence and be certain of who is safe and in what setting. If only that were true. The Last Psychiatrist contends, "We spend a lot, a lot, of money and time hospitalizing people who are not going to die."*

So, eventually our fictional patient gets tired of years on the inpatient unit (I could make jokes here about withholding cigarettes, but I'll resist the urge), takes his meds, is quickly cured, and goes home. A few weeks go by, during which time he and the neighbor share herbs and tomatoes from their respective gardens, and finally, our fictional patient decides he doesn't need treatment and stops his meds, only to become delusional all over again. My point being that while we may want to involuntarily medicate dangerous, mentally ill patients for the safety of society, once they are back in "free society" they are free to stop their meds. Treating mental illness in people with dangerous behaviors continues to represent a delicate balance between the rights of the individual and the safety of others. I've nothing brilliant to add.

Quick closer-to-real life scenario and a link to a forced-medication tale:

When I was a newbie resident on an inpatient unit, I briefly had a patient who was mentally retarded with a psychotic disorder. He would stop his medications, have a few beers, and the voices would order him to kill children. He had no history of violence, no one knew if he really would kill children, but the family repeatedly got a bit anxious when he sat on the front steps with a machete. This was his tenth hospitalization for the same chief complaint. He'd come in, restart meds (including a shot of prolixin decanoate), and be discharged within a couple of days, only to repeat the pattern. So, if I'm thinking about Kelly v. DHMH, then I'll wonder if the rest of our laws make sense.

And finally, Tuboglacier, the psychiatrist who blogs at May Shrink or Fade, writes a story on a similar theme in Substituted Decision Making, with Clam Juice.

*(-- I might suggest that perhaps hospitalizing them worked and that's why they don't die, but that's another post for another day)