By Rachel Bussett
Recently I have had to help several clients with emergency commitments of loved ones who are having mental health problems.
Usually the client is seeking to have the relative taken into custody because there is a belief that the individual is a danger to themselves or others and the client is unable to convince the police or physician that an “Emergency Order of Detention” aka an EOD is warranted.
However, recently the issue has been the misuse of the EOD procedure and physicians and law enforcement taking everyone into custody.
An EOD is covered by the Mental Health Code which is in Title 43A of the Oklahoma Statutes. This title deals with all things mental health related. 43A OS §5-207 specifically addresses emergency detention of an individual who is a danger to themselves or others when mentally ill, drug dependent or alcohol dependent.
An individual may be detained on an EOD by a physician or a police officer. However, if a police officer makes the detention, the officer is required to give a written statement for the detention. Additionally, a parent, sibling, adult child or guardian of an individual who is believed to be mentally ill, drug dependent or alcohol dependent may request an EOD evaluation for the person.
After an individual is taken in for evaluation for an EOD, the patient must be examined by a physician within 12 hours. 43A OS §5-208(A)(1). However, in my experience many hospitals will claim that they actually have 24 hours or longer to examine the patient even though the statute clearly says 12 hours.
LAW IS SPECIFIC
If upon examination the physician determines that the patient is not a danger to themselves or others, the facility must let the patient leave. 43A OS §5-208(A)(2). Again I have repeatedly found that multiple facilities violate this provision of the statutes and maintain that they may hold an individual up to five days, exclusive of weekends if the patient has been brought in on an EOD even when there is no risk.
Further, the right to hold someone up to five days, exclusive of weekends and holidays only exists when the licensed mental health professional determines that the consumer is a person requiring treatment to a degree that emergency detention is warranted. 43A OS §5-208(A)(3).
Many people believe that the individual can be held for 72 hours but that is under the old rule. The new rule for detention is 120 hours or five days exclusive of weekends.
There are also different standards applied when a patient presents for voluntary care and the physician makes a determination of risk. When a voluntary patient appears to be a patient in need of an EOD, the facility may only hold the patient has refused to consent to voluntary treatment, the physician prepares a written statement that emergency detention is warranted and the patient is examined by two licensed mental health professionals. 43A OS §5-208(B).
Nonetheless, in all instances when the patient is no longer in need of services they shall be discharged. 43A OS §5-208(C). The requirement that the patient shall be discharged is where the facilities are really messing up, as they are in all instances trying to keep individuals for the full five days exclusive of weekends. Seeing the pattern of conduct that I have in this area over the last few years makes me feel that facilities are less interested in actually treating patients and more interested in milking insurance policies for all the benefits that are possible.
VIOLATION?
Recently, a client voluntarily presented to a hospital for treatment due to diagnosed health issues. The hospital instead of treating the patient appropriately instantly placed the client on an EOD claiming the client was a personal danger due to not taking medication exactly according to label directions.
The client was held about 48 hours even though the mental health facility determined that the client was not a danger to themselves or others. Further, the facility fully intended to hold the client for the full five days, exclusive of weekends and told the client to just sit back and enjoy it.
This kind of treatment is not what is supposed to happen in our mental health system. In fact this kind of stigmatism and treatment is what causes individuals in need of treatment to avoid getting the help needed.
My client was also initially denied the statutory right to contact an attorney while under the EOD. The statutes make it very clear that a detained individual has the right to contact family or an attorney. After the facility finally agreed to allow the client to contact me, it continued to try to hold the client without substantiation of the alleged threat.
The required affidavits/statements laid out in the statutes were not produced and the examining doctor admitted that the client was not a danger to self or others. This was in my opinion a ploy to milk insurance benefits. The facilities ploy was further demonstrated when I appeared with a court order which ordered the immediate release of my client on a Writ of Habeas Corpus. The facility attempted to ignore the writ and hold the client anyway without cause even though there had been a determination that the client should be let go.
While I believe that the EOD process is extremely important to be utilized to detain individuals who are an actual danger to self or others, I believe that the current system allows too much power to the doctor/facility who are seeking to make a profit off of the mentally ill or individuals who have difficult coping mechanisms.
The EOD process is a process that should be rarely resorted to, but unfortunately I have learned that there are multiple facilities in the Greater OKC area that are repeatedly holding clients hostage and threatening them over the conduct and are denying them their basic human rights.
This causes me great concern and it is something that we as a society should be policing much better to ensure that the police and mental health counselors do not turn into the thought police and tries to force some doctrine on the unsuspecting plaintiffs.
If you have a loved one who is mentally ill there are many resources available to help you get them treatment. If they refuse treatment an EOD is one way to help protect your family member but this is not a process that should be entered lightly and everyone should be aware of the risks that are associated with trying to place someone on an EOD.
Rachel Bussett is an Oklahoma City attorney. She can be reached at 405-605-8073.
