5150 (Involuntary psychiatric hold): Wikis

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Section 5150 is a section of the California Welfare and Institutions Code (specifically, the Lanterman-Petris-Short Act or "LPS") which allows a qualified officer or clinician to involuntarily confine a person deemed to have a mental disorder that makes them a danger to him or her self, and/or others and/or gravely disabled. A qualified officer, which includes any California peace officer, as well as any specifically designated county clinician, can request the confinement after signing a written declaration. When used as a term, 5150 (pronounced "fifty-one-fifty") can informally refer to the person being confined or to the declaration itself.[citation needed]

Contents

The process

The 5150 hold may be written out on Form MH 302, Application for 72 Hour Detention for Evaluation and Treatment.[1]

Welfare and Institutions Code (WIC) 5 1 50 is interpreted by the LA County LPS Designation Handbook [1], page 5, as an .. an application for involuntary admission. According to this interpretation, WIC 5150 is not (page 5) ... a direct admission form and does not of itself authorize the involuntary admission; it merely gets the individual to the door. Then, as described in WIC 5151: Prior to admitting a person to the facility, the professional person in charge of the facility or his or her designee shall assess the individual in person to determine the appropriateness of the involuntary detention (face to face assessment). Further, according to the LA County LPS Designation Handbook ... The ability to place a person on an involuntary hold in the community is the only situation outside of law enforcement where an individual may take away another individual's right to freedom and detain him or her against his or her will...[2]

LPS Handbook fails to mention that Section 5150 is not intended to be used to hold a person reported to the police by a non-professional. It is intended for a police officer to use to submit a subject for a hold when the officer has observed the qualifying symptoms in the routine process of a response. This is commonly used to allow the officer to process a subject into the psych facility without requiring criminal processing.

It can be used to hold an inebriated person in the drunk tank to be released upon sobriety with a citation issued. If there are exigent circumstances that preclude a WIC 5200 process, an officer may respond to the call but, whenever possible, is to respond in an unmarked car in plain clothes (WIC 5153). The unmarked car and plain clothes requirement is routinely ignored by police agencies.

If there are not exigent circumstances such as an immediate risk to life, Section 5200, a judicial hold, is the proper section to follow to hold a person suspected by citizens/family of needing assessment. A pre-assessment is done by qualified mental health personnel to establish probable cause for a judge's order of 72 hour hold.

During the period of confinement, a confined individual is evaluated by a mental health professional to determine if a psychiatric admission is warranted. Confinement and evaluation usually occurs in a county mental health hospital or in a designated Emergency Department. If the individual is then admitted to a psychiatric unit, only a psychiatrist may rescind the 5150 and allow the person to either remain voluntarily or be discharged.

On or previous to the expiration of the 72 hours, the psychiatrist must assess the person to see if they still meet criteria for hospitalization. If so, the person may be offered a voluntary admission. If it is refused, then another hold for up to 14 days, the 5250 (WIC-5250), must be written to continue the involuntary confinement of the person. A Certification Review Hearing (W&I 5256) must occur within four days before a judge or hearing officer to determine whether probable cause exists to support the 5250. Alternatively, the person can demand a writ of habeas corpus to be filed for their release after they are certified for a 5250, and once filed, by law, the person must be in front of a judge in two (2) days, which, is two days sooner than the Certification Review Hearing. If the person demands to file a writ of habeas corpus right at the time of being given notice of certification, the Certification Review Hearing will not take place. Many patients wait to see how things go at the Certification Review Hearing first, because if the person loses at the Certification Review Hearing, he/she can then take advantage of the right to file writ of habeas corpus and end up having two hearings, instead of just one.[3][4] If the 72-hour timeframe has elapsed before the person is offered a voluntary admission or placed on the 5250 hold, the person must be immediately released.

A 5150 hold written by a peace officer is valid in any county in California; therefore, a person could theoretically be moved from one county to another according to available resources. When the 5150 hold is written by a designated clinician, the hold is only valid in that county. The designated clinician is only able to write a 5150 hold while present at the facility where they work, unless they work as part of a Psychiatric mobile response team.

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Contesting the hold

The person under a 5150 hold has a limited ability to contest the legality of the hold. While the person has the right of demanding a writ of habeas corpus, the decision of whether to file it lies with the county public defender. Since such a writ may take a day or two to file, the public defender usually chooses not to pursue it, as the hold would expire before the anticipated court date.

5150 criteria

The criteria for writing requires probable cause. This includes danger to self, danger to others together with some indication, prior to the administering of the hold, of symptoms of a mental disorder, and/or grave disability—as noted below. The conditions must exist under the context of a mental illness.

  1. Danger to self: The person must be an immediate threat to themselves, usually by being suicidal. Someone who is severely depressed and wishes to die would fall under this category (though they generally have to have expressed a plan to commit suicide and not just a wish to die).
  2. Danger to others: The person must be an immediate threat to someone else's safety.
  3. Gravely disabled:
    1. Adult (patients over 18 years of age): The person's mental condition prevents him/her from being able to provide for food, clothing, and/or shelter, and there is no indication that anyone is willing or able to assist him/her in procuring these needs. This does not necessarily mean homeless, as a homeless person who is able to seek housing (even in a temporary shelter) when weather demands it would not fall under this category. Also, the mere lack of resources to provide food, clothing, or shelter is not dispositive; the inability must be caused by the psychiatric condition.
    2. Minor (patients under 18 years of age): The person is unable to provide for his/her food, clothing, and/or shelter or to make appropriate use of them even if these are supplied directly—for example, a psychotic adolescent who refuses to eat because he/she believes his/her parents are poisoning them.

Required documentation

Under WIC 5150-5157 there are two mandatory legal documents, the 5150 application itself and the patient advisement form as required by WIC 5157(c); the latter may be issued in the form of Form MH 303, Involuntary Patient Advisement.[5] The LA County LPS Designation Manual stipulates that, prior to the completion of the 5150 application, the initiator must conduct and document a face-to-face interview with the patient. On the 5150 application, the initiator is required to ..give sufficiently detailed information to support the belief that the person for whom evaluation and treatment is sought is in fact a danger to others, a danger to himself/herself and/or gravely disabled. The 5150 Application contains the words ...as a result of a mental disorder.. but does not stipulate documentation of evidence of ..behavioral symptoms of a mental disorder....., defined in People v. Triplett (1983) as a necessary part of probable cause. The 5150 Application requests no explicit documentation of the required face-to-face interview. WIC 5150-5157 does not stipulate mandatory documentation of paragraph two of WIC 5151 that requires that .. the professional person in charge of the facility or his or her designee shall assess the individual in person to determine the appropriateness of the involuntary detention.... Section 1 of the Fourteenth Amendement to the US constitution, however, states that ...nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. See due process and equal protection clause. Additionally, when patients who are placed on a 5150 hold for danger to self or danger to others, a notification is filed which results in the person losing the right to purchase or possess firearms for five years. This firearms prohibition may be appealed.

Patient rights while under section 5150

Patients admitted under section 5150 retain all rights under the Lanterman-Petris-Short Act (Begins with WIC-5000) and under the Constitution and other laws. As citizens, patients do not lose their rights by being hospitalized or receiving services. With the exception of being able to freely leave the facility they are placed in, patients have all rights accorded to a voluntarily admitted client. Waivers signed by the patient, responsible relative, guardian, conservator cannot be used to deny a right. California Code of Regulations, Title 9 Section 865.2 (c); California Welfare & Institutions Code Section 5325.

Cal. Welf. & Inst. Code § 5325 and § 5325.1 codify the statutory patients' rights in California:

Undeniable rights

Under California law, the following rights may never be denied (Cal. Welf. & Inst. Code § 5325.1):

  • The right to treatment services which promote the potential of the person to function independently. Treatment should be provided in ways that are least restrictive of the personal liberty of the individual.
  • The right to dignity, privacy, and human care.
  • The right to be free from harm, including unnecessary or excessive physical restraint, isolation, medication, abuse, or neglect. Medication may not be used as punishment, for the convenience of staff, as a substitute for, or in quantities that interfere with the treatment program.
  • The right to prompt medical care and treatment.
  • The right to religious freedom and practice.
  • The right to participate in appropriate programs of publicly supported education.
  • The right to social interaction.
  • The right to physical exercise and recreational opportunities.
  • The right to be free from hazardous procedures.

Additional Rights

Additionally, every mental health client has the right to see and receive the services of a Patients' Rights Advocate. All patients also have the following treatment rights:

  • The right to give or withhold informed consent to medical and psychiatric treatment, including the right to refuse medications (WIC-5325.2) except in emergency (W&I 5008 (m)) situations where danger to life is present; or by court order where the patient is found to lack the capacity to give or refuse informed consent via either a Capacity Hearing (see W&I 5332) and also known as a Riese hearing [6] or via conservatorship.
  • The right to refuse psychosurgery (Cal. Welf. & Inst. Code § 5326.6).
  • The right to refuse convulsive treatment (ECT) unless court ordered (Cal. Welf. & Inst. Code 5326.7.).
  • The right to confidentiality (Cal. Welf. & Inst. Code § 5328).
  • The right to inspect and copy the medical record, unless specific criteria are met (Cal. Health & Safety Code § 1795).
  • The right to have family/friends notified of certain treatment information with patient's permission (Cal. Welf. & Inst. Code § 5328.1).
  • The right to an aftercare plan (Cal. Welf. & Inst. Code § 5622).

Deniable rights with good cause

Psychiatric facilities must also uphold the following specific rights, which can be denied only when "good cause" exists.[7]

  • The right to wear one's own clothing.
  • The right to keep and use one's own personal possessions, including toilet articles, in a place accessible to the patient.
  • The right to keep and spend a reasonable sum of one's money for small purchases.
  • The right to have access to individual storage space for one's own use.
  • The right to see visitors each day.
  • The right to have reasonable access to phones both to make and receive confidential calls.
  • The right to have access to letter-writing materials, including stamps.
  • The right to mail and receive unopened letters and correspondence.

With good cause

Denying a patient's rights requires good cause. Good cause is defined as the belief of the professional in charge of care for the client that the specific right would cause

  1. a danger to self or others;
  2. a serious infringement on the rights of others; or
  3. serious damage to the facility;

and that there is no less restrictive measure that would protect against those occurrences.

Patient rights can not be denied as a condition of admission, nor as part of a treatment plan (a doctor may not designate patient rights a 'privilege' or 'punishment'). Any time a right is denied under good cause, it must be documented in the patient's medical record and explained to the patient. The denial must be reviewed regularly and removed once good cause no longer exists.

When a right is denied, the reason given for denying the right must have some clear relationship to the right denied.[8] For example, a patient may be denied the right to keep his cigarettes (the right to keep and use personal possessions) because he is burning himself and lighting fires, and lesser restrictive alternatives (supervision during designated smoking times) have failed. This rule prevents facilities from denying rights as a form of punishment; for example, if a patient misbehaves by throwing food at another person, then the facility cannot take away personal possessions or deny visitors for the day.

Without good cause

If a right was denied without good cause, a patient can instruct his or her appointed public defender to file an Ex Parte application with the court to restore the right. After filing the application, a hearing is set and an opportunity to be heard by the judge concerning the merits of the case is reviewed; the judge determines if the right will be restored or remain listed as a "good cause" denial. An Ex Parte can bring relief in a matter when a person is deprived of any interest in liberty or property without due process of law.[9]

See also

References

  1. ^ See Form MH 302, California Department of Mental Health.
  2. ^ "LPS Designation Handbook" (pdf). Los Angeles County Department of Mental Health. p. 7. http://dmh.lacounty.gov/cms1_055116.pdf. Retrieved 2008-06-17. 
  3. ^ "Protection and Advocacy, Inc., Contracted by the State of California to advocate for involuntary persons, Hearing Options". http://www.pai-ca.org/pubs/502401.pdf. Retrieved 2009.  72-Hour Hold and Hearing Options
  4. ^ "5150 - One Who Flew Into The Cuckoo's Nest". http://www.toddlertime.com/5150.htm.  Book on how 5150 has been implemented, actual court transcripts, hearing options
  5. ^ See Form MH 303, California Department of Mental Health.
  6. ^ "Riese hearing and history, involuntary medication". http://www.toddlertime.com/advocacy/5150/rights/legal-requirements-of-hearings.htm.  Kathi's Mental Health Review
  7. ^ (Cal. Welf. & Inst. Code § 5325; 9 C.C.R. § 865.2)
  8. ^ (9 C.C.R. § 865.2)
  9. ^ "5150 - One Who Flew Into The Cuckoo's Nest". http://www.toddlertime.com/5150.htm.  Ex Parte actual court transcripts to restore rights

External links


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