HEALTH LAW SUPPLEMENT Winter 2007

Differing state standards for involuntary commitment. A new movie, Michael Clayton, (which I liked) raised the issue of the differences among states in standards for involuntary psychiatric commitment. These standards are important for private practitioners to know because commitment is an option that they must consider when patients present a risk of harm to self or others and won’t voluntarily seek an adequate level of care.

In the movie, a New York lawyer, Arthur, stops taking his medication for bipolar disorder and decompensates, stripping naked in a deposition in Wisconsin, saying crazy things, abandoning his responsibilities at work, and assisting the opposition to prove wrongdoing (very real wrongdoing) against a big client of his. Another lawyer in his firm, Michael Clayton, threatens to have Arthur involuntarily committed. Arthur, who has returned to New York from Wisconsin, tells Michael that he missed the chance to commit him. Arthur, manic but still legally astute, knows that the threshold for commitment in New York is much higher than it is in Wisconsin.

In New York the standard for involuntary commitment to an institution is that a person has a mental illness “…which is likely to result in serious harm to himself or others.” NY Mental Hygiene Law §9.55. New York courts interpret this standard to mean that the mentally ill person will present an imminent danger of physical harm to self or others if not hospitalized. Arthur probably could not have been committed using this standard.

Wisconsin’s standard is quite different and more lenient in permitting involuntary treatment. It allows a mentally ill person who is deemed incapable of making informed medical decisions to be involuntarily treated if the treatment has a reasonable prospect of success. Wisconsin Statutes §51.20(1)(a)2.e. The constitutionality of the Wisconsin statute was challenged because it can result in a deprivation of liberty without a showing of dangerousness, but the law was upheld as the State acting within its legitimate parens patriae (parental) role, State v Dennis H, 647 NW2d 851 (Wis Sup Ct, 2002). Arthur very likely could have been committed under the Wisconsin statute because he was clearly ill, seemed to be acting against his own interests at least financially and professionally, and was refusing to continue previously effective treatment for no good stated reason.

New York does have a commitment statute with less stringent criteria, but for involuntary outpatient treatment, the so-called “Kendra’s Law.” New York Mental Hygiene Law §9.60. Under that law, an AOT (or “assisted outpatient treatment”) Order may be obtained from a judge by a family member, treating doctor or hospital, or social service office when a mentally ill person refuses compliance with treatment. A showing of prior psychiatric hospitalizations or prior dangerousness is required however. An AOT Order against Arthur would have proved difficult for Michael Clayton to obtain because of a lack of standing and because Arthur had been stable for the past few years and had no history of dangerousness (as defined by New York law).

Mentally ill persons often prefer laws like New York’s, where it’s harder for them to be deprived of their liberty and forced into treatment. Family members of the mentally ill may prefer a model like Wisconsin’s because it’s easier there to use the legal system as a coercive partner to persuade or force a mentally ill family member to accept treatment.

Maltreatment by a sibling is not reportable abuse unless there’s parental neglect. This isn’t new information, but it’s well illustrated by a recent case. The facts were these. A mother suspected that her 9 year old daughter was being touched inappropriately by the child’s 14 year old half-brother. The mother tried to make a report to the Child Protective Services hotline but a caseworker declined to accept it. As a minor, the half-brother could not be the “subject” of a report; subjects must be parents, guardians or “legally responsible persons,” the latter category being limited to those over the age of 18.

The mother then advised her pediatrician of her suspicions and asked her pediatrician to make a report to CPS. (The mother believed, mistakenly, that a report by the pediatrician would have a better chance of being accepted for investigation.) The pediatrician declined to make a report based on the alleged molestation, and instead told the mother that her daughter should not be left alone with her step-son.

Six months later, the pediatrician was asked by the police to examine the girl after more serious allegations of sexual abuse were made against her half-brother. The pediatrician validated the abuse, and then reported the mother for neglect for failing to adequately supervise the children. The mother then sued the pediatrician alleging that the doctor should have reported the molestation when she was first told of it by the mother, and that had the doctor done that, the more serious subsequent abuse would not have occurred.

The court ruled that the mother had no case and that the pediatrician’s actions were lawful. New York limits its definition of reportable child maltreatment to abuse or neglect by parents, or by “legally responsible persons,” that is, who are 18 or older and are delegated responsibility by parents, e.g., a nanny. At the time of the mother’s first contact with the pediatrician, no reportable child maltreatment, as legally defined, had occurred. New York has a policy of non-intervention by the State when a minor is abusing a sibling because, said the Court, such situations “are within the capacity and authority of a fit parent.” Defined maltreatment happens in such situations only when a parent knows or should know of the abuse and does not take appropriate action to prevent it. Page v Monroe and Adirondack Pediatrics, 2007 WL 1458201(NDNY, 2007).

Breaches of confidentiality may result in punitive damages. A New York appeals court recently ruled that punitive damages might be imposed for unintentional but negligent breaches of confidentiality by healthcare practitioners where the breach has the potential for significant harm. Punitive damages are usually reserved for cases of intentional misconduct. They have deterrence as their purpose, that is, to deter the wrongdoer and others from such misconduct in the future. But this court stated that the right of patients to privacy of their healthcare records is so important a public policy that even an inadvertent breach might in some cases warrant punitive damages. The defendant, a clinic that performed abortions, reported to a family member of a patient the results of a blood test the patient had had at the clinic. The family member surmised that the patient had had an abortion at the clinic, and the patient’s relationship with her family suffered as a result. Randi AJ v Long Island Surgi-Center, 2007 NY Sl Op 06953 (Ap Div, 2D, 9/25/2007).

Punitive damages are especially worrisome for healthcare practitioners because they may not be covered by malpractice insurance. (They may be covered if the liability is vicarious, that is, if the misconduct is by an employee.) This case also may have particular ramifications for mental health practitioners, because of the possible stigmatization associated with mental health treatment, similar in some respects to disclosure of an abortion.

Our new revised HIPAA Manual is available. Our new “HIPAA Compliance Manual for Small Mental Health Practices in New York State, Second Edition – 2007” authored by Bruce has all the instructions and forms needed for compliance with all of the HIPAA Rules i.e., the Privacy Rule and the newer Security and Transaction Rules. An order form for the Manual, which costs $69.98 with tax and shipping, can be downloaded at our website, www.brucehillowe.com or you can call us at 800-286-0369 to place an order.

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