Involuntary medication: Shumlin wants changes to state law
BRATTLEBORO -- The Brattleboro Retreat is still waiting for a visit from the Centers for Medicare and Medicaid Services, or CMS, to determine if the hospital will be able to continue to receive federal funding following an April CMS survey showing that the Retreat provided inadequate care to some of its patients.
During the pending CMS visit federal inspectors will see if the Retreat is following its most recent plan of correction addressing the patient care issues.
But regardless if the Retreat passes the upcoming CMS survey, Gov. Peter Shumlin says Vermont's mental health care system has deep systematic flaws that need to change.
The Retreat has a number of issues to address if it wants to receive federal funding, and among them are policies and actions related to Vermont's law governing involuntary medication.
Shumlin said some of the problems at the Retreat are the same ones doctors and staff members at the State Hospital in Waterbury faced over the past 10 years, when the state hospital was decertified and lost its federal aid.
The Governor says he is going to ask the Legislature next year to look at Vermont's involuntary medication law to make it easier for doctors to administer medication to a state hospital patient who is refusing treatment.
"We have a challenge in Vermont, and that is that we are the most lenient state in the country when it comes to giving patients the ability to refuse or reject pharmaceutical treatment when it is medically warranted," Shumlin said. "I think that until we are willing to confront that challenge as a state we will have struggles with CMS keeping our facilities certified."
States across the country have different laws governing how and when doctors can administer psychiatric medication to a patient who is under the state's care.
In Vermont, a doctor must seek a judge's approval before administering medication to a patient who is refusing treatment, a process that can take two months or more to complete.
When the 2014 legislative session opens Shumlin said he is going to ask lawmakers, doctors and mental health patient advocates to come up with a new system that streamlines the process so state hospital patients can receive the psychiatric medication the Governor says they need.
"This is a very controversial issue. It is not an easy conversation to have or it would have been had," Shumlin said. "We have to come up with a system that gives our providers more latitude when it comes to acutely ill patients who desperately need pharmaceuticals as a part of the treatment. I believe in patients having, whenever possible, control over their own destiny, but somehow we have to strike a better balance than what we have on the books right now."
The Vermont Legislature passed Act 114 in 1998 to establish a formal hearing process for the administration of non-emergency involuntary psychiatric medication in inpatient settings.
Every state has some type of hearing process that requires a judge, or an administrator, to hear a doctor's request to prescribe non-emergency medication to a patient who is refusing the treatment.
Some states say doctors can medicate a patient as soon as the patient is admitted to a state hospital and is under the care of the state.
Other states require additional steps, following commitment hearings, but few states have a process that take as long as Vermont's, said Jill Olson, vice president of policy and legislative affairs for the Vermont Association of Hospitals and Health Systems.
"We are taking much longer than anywhere else," she said. "We understand that it is a sensitive issue. It is a big deal to commit someone and we are not saying there should not be a judicial process, we just want it to go faster."
A 2008 legislative report found that Vermont was among a few states where the involuntary medication process took more than 30 days.
Ideally, the report says, the time from inpatient admission to the beginning of medication should be less than 30 days.
Before someone can be admitted to the state hospital in Vermont a doctor must file papers which go to the patient's attorney.
The attorney can ask for more time to review the request, which is then forwarded to a judge who has to find the time to review the request.
A hearing is held and then the judge rules.
After the patient is admitted, if he or she refuses treatment, then the entire process starts over again from the start with papers filed, hearings scheduled and then a judge ruling on the request
Between 2009 and 2013 the average number of days between when an individual was admitted to the state hospital and when the involuntary medication order was granted rose from 68 to 81 days, the Vermont Department of Mental Health reported.
Olson also points out that for all the delays inherent in Vermont's system, a judge usually grants the request by the doctor. Between 2008 and 2012, 95 percent of the cases ruled on by the court were granted
Olson said that not every patient in the state hospital system refuses treatment, but the delays typically happen with some of the most challenging patients who are experiencing severe psychotic trauma. And she said some data show that for these patients, waiting the extra time can exacerbate their illness.
"We believe that it is not good for a patient to remain in a psychotic state for so long," Olson said. "We don't want to stigmatize people with mental illness. It is not easy to medicate someone, it is a traumatic process for everyone involved, but doctors should not have to wait for 60 days, or more, for a judge to say it is appropriate."
But while many advocates agree that Vermont's involuntary medication system takes too long, there is not widespread consensus on how to fix the problem.
AJ Ruben, supervising attorney for Disability Rights Vermont, says the problem with Vermont's involuntary non-emergency medication system is not with the law, but rather with the resources that are committed to the process.
Disability Rights Vermont is part of a national advocacy system that receives federal funding to provide protection and advocacy for persons with developmental disabilities.
Ruben said psychiatric patients deserve every right that any other Vermont citizen has and a judge should determine if the request is appropriate.
"From our perspective we do not think the law on involuntary non-emergency medication should be changed," Ruben said. "If there is a delay in the system it is not because the law is not working, but because the system is underfunded and not working well."
In the cases of non-emergency medication, when the patient is not a threat to him or herself, Ruben said, it makes sense to have a judge oversee the request to ensure that the medication is in the best interest of the patient.
"We think this law strikes a good balance in protecting the patient's rights and allowing the court, based on medical testimony, to sign an order," Ruben said. "It might be easier in other states to involuntarily medicate someone, but we don't think it gives good results."
And in 2010 John McCullough, project director of the Vermont Mental Health Law Project, told the Legislature that any changes to the state's involuntary medication law that seek to hasten the process would instead diminish the rights of the mentally ill.
"The Legislature has adopted as a matter of public policy the principle that Vermont should be moving toward a mental health system free of coercion," McCullough told the Department of Mental Health in the annual legislative report on Act 114. "In fact, legislative proposals from the department, such as the proposal which we expect to see again in the coming legislative session to accelerate involuntary medication proceedings, are more consistent with a drive to increase the burdens of an already coercive system."
The Mental Health Law Project represents most of the State Hospital patients during the judicial hearings and McCullough told lawmakers that the state should be increasing the amount of time patients have to fight against a doctor's request to forcibly administer psychotropic medicine, and not reducing it.
"This decision has the effect of interfering with the patient's ability to receive adequate representation and to defend themselves against this massively intrusive practice of involuntary medication, and places the patient at an even greater disadvantage in these proceedings than would otherwise be the case," he wrote, later saying that slowing down the process would "Have the effect of encouraging the state to view involuntary medication as a last, rather that a first, resort."
Dr. Gordon Frankle is the Chief of Psychiatry at Rutland Regional Medical Center, and he says Vermont's involuntary, non-emergency medication law needs to change.
Frankle has been in Vermont for three years, following time he spent practicing psychiatry in Massachusetts, New York and Pennsylvania.
Each of those states has a system that is much larger than Vermont's with many more patients, he said, and nowhere does it take as long to get a judge's approval.
He says Vermont's law requires a second hearing for involuntary medication, after a judge rules on admission to the state hospital.
Both processes take too much time during which a patient is in deep distress and should be receiving treatment.
"The law begets the process. I do not believe it is just limited resources that cause the delay," Frankle said. "We are talking about people who are in emergency situations, and who require treatment because they are suffering severe psychotic episodes. The law drives the process that occurs and right now the delay is extreme."
The delay can often lead to more dangerous situations, according to Frankle, as a patient's situation deteriorates and hospital employees are forced to perform functions they may not be appropriately trained to carry out.
Frankle also said the hearing process in Vermont is adversarial, requiring doctors to testify on a witness stand, before a judge, and make a case for medicating a patient.
"Anyone who works in mental health treatment would say we have to protect a patient's rights, but we have to do this in an expedited manner," Frankle said. "It is intrusive to have people incarcerated for months at a time while we wait for the law to make its way through the system. These people are in a state of emergency and the longer it takes to begin the treatment, the longer it will be before the patient is ultimately released. I am glad the Governor is making this a priority."
Challenges at the Retreat
Prior to Tropical Storm Irene, all of the involuntary medication cases originated out of the Vermont State Hospital in Waterbury.
The law was always controversial, but when flood waters from the storm destroyed the Waterbury building in August 2011 the issue became even more complex.
The Retreat accepted state hospital patients the day after Irene pounded Vermont and the Brattleboro psychiatric hospital has been working ever since to renovate its historic buildings to become a long-term partner in the state's new mental health care system.
The Waterbury building has been closed and psychiatric patients under state care are being treated at the Retreat, at Rutland Regional Medical Center, and eventually at a new 25-bed hospital that is being built in Berlin, as well as in smaller, less intensive community centers.
In April the Retreat opened its new $5.3 million 14-bed adult intensive unit for state hospital patients, but even before the new unit opened the Retreat ran afoul of CMS regulations.
CMS investigators visited the Retreat in the spring after receiving a complaint that a patient was forcibly restrained and medicated.
The visit uncovered a range of other issues, but Brattleboro Retreat Senior Vice President of Government Relations Peter Albert said at the time that the Retreat was doing its best to work within a system that required change.
"We recognize that much of our work is done within the context of a larger system that remains in crisis," Albert said in May. "Many of the solutions we identify go beyond just the Retreat and the only way to effect real and lasting change is to address not only our own issues but the ones that continue to impact the entire system."
Dr. Fritz Engstrom, the Retreat's Medical Director said the hospital felt confident that is was addressing every concern CMS pointed out in its report.
Not every issue the Retreat needs to address stems from the state's involuntary medication law, but many of the challenges pertaining to seclusion, restraint and forced medication could be softened, he said, with a different policy.
"The state took this on as a very well-intentioned process to protect people's civil rights, and there has to be a process, but what we have now is tragic," Engstrom said. "We are talking about people who are highly disturbed and psychotic. They have a right to refuse treatment, but they also have a right to receive treatment."
It is heart breaking to witness the effects on family members who can only watch as the patient suffers, Engstrom said.
And he acknowledges that that the Retreat is developing new procedures and learning as it grows into its newly expanded role in the state's de-centralized mental health system.
"It is challenging. I don't know what the happy medium is," said Engstrom. "It is clearly complicated but there has to be a way to make the process shorter than it is now. The patients deserve that."
Shumlin said he continues to have faith in the Brattleboro Retreat and is confident the hospital will be partner with the state for a long time.
Many of the same problems that plagued the Waterbury hospital are playing out now at the Retreat and when legislators return to Montpelier next year Shumlin said he wants to address the issue so the mental health care system can move forward.
"We are sending the Retreat a group of patients that are the toughest in the mental health field to treat, and which provide real challenges," Shumlin said. "And we are asking them to do this under a system that guides them in terms of medication. That has been a challenge for our whole mental health system. If we can't make progress on this then whoever is delivering care will continue to have a very difficult time managing some of these folks who are really in crisis."
Howard Weiss-Tisman can be reached at email@example.com or 802-254-2311, ext. 279. Follow Howard on Twitter @HowardReformer.
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