Exercising Restraint: Balancing Regulations With Reality in the Delivery of Mental Health Care

EXERCISING
RESTRAINT
DATE: November 10, 2017
TIME: 8:00 am – 10:00 am
PLACE: College Medical Center, Long Beach, CA
PRESENTER: Craig B. Garner, Esq.
Balancing Regulations With
Reality in the Delivery of
Mental Health Care

Introduction
“Crazy” is a term of art; “Insane” is a term of law. Remember
that, and you will save yourself a lot of trouble.
-- Hunter S. Thompson

EXERCISING RESTRAINT
Balancing Regulations with Reality
in the Delivery of Mental Health Care
Craig B. Garner, Esq.
Garner Health Law Corporation
THE AGE OF THE ASYLUM
§ In the twentieth century, the network of care facilities in the United States
expanded from a mere 149 hospitals in 1873 to 6,665 by 1913.
§ Included among these were a growing number of specialized institutions that
catered to specific conditions that had only recently been diagnosed as
illnesses.
§ The burgeoning science of psychiatry and advances in the treatment of
addiction were at the forefront of such change, creating a demand for stand-
alone structures often based in rural settings.

MENTAL HEALTH IN CALIFORNIA
§ California’s first state-run psychiatric hospital, Stockton State Hospital, opened
in 1853.
§ For the next 50 years, municipalities in California shifted the financial burden
for psychiatric treatment to state institutions.
§ Wealthy patients received treatment in secluded, private facilities.
§ By 1959, California’s 14 state hospitals cared for a population of 37,500 (one
doctor for every 300 patients).

THORAZINE TO THE RESCUE
§ California’s inability to effectively and humanely treat these mental health
patients necessitated change.
§ New antipsychotic and anti-depression medication in the 1950s started to
replace previous treatments like the lobotomy.
§ The introduction of chlorpromazine (Thorazine) and other related medications
created opportunities for community-based treatment.

THE LOBOTOMY
§ As early as 1890, German scientist Friederich Golz surgically removed the temporal lobe in
dogs to make a canine calmer.
§ By 1940, Dr. Walter Freeman convinced the world that the “icepick lobotomy” method
worked, resulting in more than 18,000 lobotomies in the U.S. between 1939 and 1951.
§ By the 1970s, many U.S. states had banned the procedure.
§ The Soviet Union outlawed the lobotomy in 1940 because, according to Stalin, it turned “an
insane person into an idiot.”

Mental Health in the United States
When dealing with the insane, the best
method is to pretend to be sane.
-- Hermann Hesse

MENTAL DISORDERS
The following are descriptions of the most common categories of mental illness
in the United States:
§ Anxiety disorders are characterized by excessive fear or anxiety that is difficult
to control and negatively impacts daily functioning. An estimated 40 million
people in the United States experience an anxiety disorder in any given year.
§ Attention deficit hyperactivity disorder (ADHD) is defined by a persistent patter
of inattention and/or hyperactivity-impulsivity.

MENTAL DISORDERS (continued)
§Individuals with bipolar and related disorders experience atypical,
dramatic swings in mood, and activity levels that go from periods of
feeling intensely happy, irritable, and impulsive to periods of
intense sadness and feelings of hopelessness.
§Depressive disorders are among the most common mental health
disorders in the United States.

MENTAL DISORDERS (continued)
Other mental disorders include:
§Disruptive, impulse control and conduct disorders
§Obsessive-compulsive and related disorders
§Schizophrenia spectrum and other psychotic disorders
§Trauma and stressor related disorders

MENTAL HEALTH TODAY
§ Approximately one in five Americans experience mental illness.
§ As of 2014, six percent of the population was living with a severe mental
illness like schizophrenia, major depression or bipolar disorder.
§ Mental health illness costs approximately $193.2 billion in lost earnings
annually.
§ Two-thirds of the individuals with “potentially diagnosable disorders avoid
treatment due to costs.

MENTAL HEALTH TODAY (continued)
§ Mental health is subjective, just as diagnosis of schizophrenia relies on a
spectrum, psychotic examples range from hallucinations to speech
impediments, and bipolar affective disorder by definition alternates between
periods of elevated mood and depression.
§ The International Statistical Classification of Diseases and Related Health
Problems (ICD-10) contains more than 70,000 different physical health
concerns, and the fifth edition of the Diagnostic and Statistical Manual of
Mental Disorders (DSM-V) hovers close to 300 disorders from which to choose.

SUBSTANCE ABUSE
An alcoholic is someone you don’t like, who drinks
as much as you do. -- Dylan Thomas

ILLICIT DRUG USE BY THE NUMBERS
§ In 2014, an estimated 27 million Americans (10.2 percent of the population)
aged 12 or older had used an illicit drug in the past month.
§ In 2014, approximately 21.5 million people aged 12 or older had a substance
use disorder (includes 17 million people with an alcohol use disorder, 7.1
million with an illicit drug use disorder, and 2.6 million who had both).
§ Marijuana is the most used drug, with approximately 22.2 million current
users in the United States (8.4% of the population aged 12 or older).

SAMHSA (www.samhsa.gov)
§ SAMHSA is charged with improving quality and availability of prevention,
treatment and rehabilitation services.
§ SAMHSA Strategic Initiatives help provide treatment and services for people
with mental and substance use disorders as well as support the families of
people with mental and substance use disorders.
§ SAMHSA acts through advisory councils or committees to advance its goals,
and at the same time draws advice from public members and professionals in
the field of substance abuse and mental health.

SAMHSA (continued)
SAMHSA advisory councils and committees:
§ SAMHSA National Advisory Council
§ Center for Mental Health Services National Advisory Council
§ Center for Substance Abuse Prevention National Advisory Council
§ Advisory Committee for Women’s Services
§ Drug Testing Advisory Board
§ Tribal Technical Advisory Committee

MHSUDS
§ Department of Health Care Services’ (DHCS) Mental Health and Substance
Abuse Services (MHSUDS) – Partners & Stakeholders webpage:
http://www.dhcs.ca.gov/provgovpart/Pages/MH-SUD_Partners-
Stakeholders.aspx
§ MHSUDS is committed to ensuring the best possible planning, delivery and
monitoring.

PROPOSITION 36
§ California Proposition 36, the Substance Abuse and Crime Prevention Act of
2000, allows qualifying defendants convicted of non-violent drug
possession offenses to receive a probationary sentence in lieu of incarceration.
§ As a condition of probation defendants are required to participate in and
complete a licensed and/or certified community drug treatment program.
§ If the defendant fails to complete this program or violates any other term or
condition of their probation, then probation can be revoked.

INVOLUNTARY
DETENTION
Madness is rare in individuals – but
in groups, political parties, nations,
and eras it’s the rule.
-- Friedrich Nietzsche

RESTRAINTS BY THE NUMBERS
§ 5150 (California Welfare and Institutions Code § 5150): Applies to involuntary psychiatric
holds lasting three days.
§ 5250: Applies to involuntary holds lasting up to 14 days.
§ 5260: Additional 14 days with threatened or attempted suicide.
§ 5270: Applies to involuntary holds lasting up to 30 days.
§ After 30 days, gravely disabled persons may require a conservatorship hearing (Section
5270.55).
§ The maximum time for involuntary detention is 47 days (6.7 weeks, 1128 hours, 67,680
minutes).

5150
When a person, as a result of a mental health disorder is a danger to self or
others or is gravely disabled, certain persons may, upon probable cause, take the
person into custody, or cause the person to be taken into custody, and place the
person in a facility designated by the county and approved by DHCS as a facility
for evaluation and treatment.

5150 – “certain persons”
§ A peace officer (including park peace officers and regional park peace officers);
§ A professional person in charge of a facility designated by the county for
evaluation and treatment; or
§ A member of the attending staff of a county-designated evaluation facility who
is authorized to admit a patient involuntarily;
§ Designated members of a mobile crisis team;
§ Any other professional person designated by the county.

5150.05(a)
When determining if probable cause exists to take a person into custody, or
cause a person to be taken into custody, pursuant to Section 5150, consider
available relevant information about the historical course of the person’s mental
disorder if the authorized person determines that the information has a
reasonable bearing on the determination as to whether the person is a danger
to others, or to himself or herself, or is gravely disabled as a result of the mental
disorder.

5150.05(b)
For purposes of this section, “information about the historical course of a
person’s mental disorder” includes evidence presented by the person who has
provided or is providing mental health or related support services to the person
subject to a determination, evidence presented by one or more members of the
family of that person, and evidence presented by the person subject to a
determination (or anyone designated by that person).

5150.05(c)
If the probable cause is based on the statement of a person other than the one
authorized to take the person into custody pursuant to Section 5150, a member
of the attending staff, or a professional person, the person making the statement
shall be liable in a civil action for intentionally giving any statement that he or
she knows to be false.

GRAVELY DISABLED
”Gravely disabled” means either of the following:
§ A condition in which a person, as a result of a mental health disorder, is unable
to provide for his or her basic personal needs for food, clothing, or shelter.
§ A condition in which a person, has been found mentally incompetent.
The term “gravely disabled” does not include persons with intellectual
disabilities by reason of that disability alone.

GRAVELY DISABLED (continued)
A person is found mentally incompetent if all of the following facts exist:
§ At the time of commitment there are charges of a felony involving death, great
bodily harm, or a serious threat to the physical well-being of another person.
§ Charges have not been dismissed.
§ As a result of a mental health disorder, the person is unable to understand the
nature and purpose of the proceedings taken against him or her and to assist
counsel in the conduct of his or her defense in a rational manner.

NO PRIVATE RIGHT OF ACTION
The Lanterman-Petris-Short (LPS) Act did not create a private right of action
against hospital and physician for allegedly failing to review “false” statement of
probable cause submitted by school district's police officers in support of placing
a teacher under a 72-hour hold, failing to determine that teacher did not meet
the criteria for detention, failing to assess and evaluate teacher in accordance
with the LPS Act, and failing to provide her with a written statement of her rights.
Julian v. Mission Community Hospital (2017)

5250
If a person is detained for 72 hours under Section 5150, or under court order for
evaluation, and has received an evaluation, he or she may be certified for not
more than 14 days of intensive treatment related to the mental health disorder
or impairment by chronic alcoholism, under the following conditions:

5250 (continued)
§ The professional staff of the agency or facility providing evaluation services has
analyzed the person's condition and has found the person is, as a result
of a mental health disorder or impairment by chronic alcoholism, a danger to others,
or to himself or herself, or gravely disabled
§ The facility providing intensive treatment is designated by the county to provide
intensive treatment, and agrees to admit the person. No facility shall be designated
to provide intensive treatment unless it complies with the certification review
hearing required law.
• The person has been advised of the need for, but has not been willing or able to
accept, treatment on a voluntary basis.

5250 (continued)
§ A person is not “gravely disabled” if that person can survive safely without
involuntary detention with the help of responsible family, friends, or others
who are both willing and able to help provide for the person's basic personal
needs for food, clothing, or shelter.
§ However, unless they specifically indicate in writing their willingness and
ability to help, family, friends, or others shall not be considered willing or able
to provide this help.

5260
At the expiration of the 14–day period of intensive treatment any person who, as
a result of mental disorder or impairment by chronic alcoholism, during the 14–
day period or the 72–hour evaluation period, threatened or attempted to take
his or her own life or who was detained for evaluation and treatment because
he or she threatened or attempted to take his or her own life and who continues
to present an imminent threat of taking his or her own life, may be confined for
further intensive treatment pursuant to this article for an additional period not to
exceed 14 days.

5260 (continued)
The following conditions must apply:
§ The person's condition is such that the person presents an imminent threat of
taking his or her own life.
§ The person has been advised of, but has not accepted, voluntary treatment.
[continued]

5260 (continued)
§ The facility providing additional intensive treatment is equipped and staffed to
provide treatment, is designated by the county to provide that intensive
treatment, and agrees to admit the person.
§ The person has, as a result of mental disorder or impairment by chronic
alcoholism, threatened or attempted to take his or her own life during the 14–
day period of intensive treatment or the 72–hour evaluation period or was
detained for evaluation and treatment because he or she threatened or
attempted to take his or her own life.

5270.10
It is the intent of the Legislature to reduce the number of gravely disabled
persons for whom conservatorship petitions are filed and who are placed under
the extensive powers and authority of a temporary conservator simply to obtain
an additional period of treatment without the belief that a conservator is actually
needed and without the intention of proceeding to trial on the conservatorship
petition.

5270.15
Upon the completion of a 14–day period of intensive treatment pursuant to
Section 5250, the person may be certified for an additional period of not more
than 30 days of intensive treatment under both of the following conditions:
§ The professional staff of the agency or facility treating the person has found
that the person remains gravely disabled as a result of a mental disorder or
impairment by chronic alcoholism.
§ The person remains unwilling or unable to accept treatment voluntarily.

5270.15 (continued)
A person certified for an additional 30 days shall be provided a certification
review hearing unless a judicial review is requested.
§ Reasonable attempts shall be made by the mental health facility to notify
family members or any other person designated by the patient at least 36
hours prior to the certification review hearing, of the time and place of the
certification hearing, unless the patient requests that this information not be
provided.

5270.15 (continued)
§ The professional staff of the agency or facility providing intensive treatment
shall analyze the person's condition at intervals of not to exceed 10 days, to
determine whether the person continues to meet the criteria established for
certification under this section, and shall daily monitor the person's treatment
plan and progress.

5270.35
A certification pursuant to this article shall be for no more than 30 days of
intensive treatment, and shall terminate only as soon as the psychiatrist directly
responsible for the person's treatment believes, as a result of the
psychiatrist's personal observations, that the person no longer meets the criteria
for the certification, or is prepared to voluntarily accept treatment on a referral
basis or to remain on a voluntary basis in the facility providing intensive
treatment.

5270.35 (continued)
However, in those situations in which both a psychiatrist and psychologist have
personally evaluated or examined a person who is undergoing intensive
treatment and there is a collaborative treatment relationship between the
psychiatrist and the psychologist, either the psychiatrist or psychologist may
authorize the release of the person but only after they have consulted with one
another.

5270.35 (continued)
In the event of a clinical or professional disagreement regarding the early
release of a person who is undergoing intensive treatment, the person may not
be released unless the facility's medical director overrules the decision of the
psychiatrist or psychologist opposing the release. Both the psychiatrist and
psychologist shall enter their findings, concerns, or objections into the person's
medical record.

5270.35 (continued)
If any other professional person who is authorized to release the person believes
the person should be released before 30 days have elapsed, and the psychiatrist
directly responsible for the person's treatment objects, the matter shall be
referred to the medical director of the facility for the final decision. However, if
the medical director is not a psychiatrist, he or she shall appoint a designee who
is a psychiatrist.

5270.35 (continued)
If the matter is referred, the person shall be released before 30 days have
elapsed only if the psychiatrist believes, as a result of the psychiatrist's personal
observations, that the person no longer meets the criteria for certification, or is
prepared to voluntarily accept treatment on referral or to remain on a voluntary
basis in the facility providing intensive treatment.

5270.35 (continued)
Any person who has been certified for 30 days of intensive treatment under this
article, shall be released at the end of 30 days unless one or more of the
following is applicable:
§ The patient agrees to receive further treatment on a voluntary basis.
§ The patient is the subject of a conservatorship petition.
§ The patient is the subject of a petition for post certification treatment of a
dangerous person.

5270.40
Any individual who is knowingly and willfully responsible for detaining a person
for more than 30 days in violation of the provisions of Section 5270.35 is liable
to that person in civil damages.

5270.50
§ If the provisions of Section 5270.35 have been met, the professional person in
charge of the facility providing intensive treatment, his or her designee, and
the professional person directly responsible for the person's treatment shall
not be held civilly or criminally liable for any action by a person released
before or at the end of 30 days pursuant to this article.

5270.50 (continued)
§ The attorney or advocate representing the person, the court-appointed
commissioner or referee, the certification review hearing officer conducting the
certification review hearing, or the peace officer responsible for detaining the
person shall not be civilly or criminally liable for any action by a person
released at or before the end of the 30 days of intensive treatment pursuant to
this article.

5270.55
Whenever it is contemplated that a gravely disabled person may need to be
detained beyond the end of the 14-day period of intensive treatment and prior
to proceeding with an additional 30-day certification, the professional person in
charge of the facility shall cause an evaluation to be made, based on the
patient's current condition and past history, as to whether it appears that the
person, even after up to 30 days of additional treatment, is likely to qualify for
appointment of a conservator.

5270.55 (continued)
§ If the appointment of a conservator appears likely, the conservatorship referral
shall be made during the 14-day period of intensive treatment.
§ If it appears that with up to 30 days additional treatment a person is likely to
reconstitute sufficiently to obviate the need for appointment of a conservator,
then the person may be certified for the additional 30 days.

5270.55 (continued)
§ Where no conservatorship referral has been made during the 14-day period
and where during the 30-day certification it appears that the person is likely to
require the appointment of a conservator, then the conservatorship referral
shall be made to allow sufficient time for conservatorship investigation and
other related procedures.

5270.55 (continued)
§ If a temporary conservatorship is obtained, it shall run concurrently with and
not consecutively to the 30-day certification period. The conservatorship
hearing shall be held by the 30th day of the certification period. The maximum
involuntary detention period for gravely disabled persons pursuant to Sections
5150, 5250 and 5270.15 shall be limited to 47 days.

5270.65
Nothing in this article shall prohibit the professional person in charge of an
intensive treatment facility, or a designee, from permitting a person certified for
intensive treatment to leave the facility for short periods during the person's
intensive treatment.

5300 (when 47 days becomes 180 days)
§ At the expiration of the 14-day period of intensive treatment, a person may be
confined for further treatment for an additional 180 days if one of the
following exists:
§ The person has or had attempted, inflicted, or made a serious threat of
substantial physical harm upon the person of another after having been taken
into custody, and while in custody, as a result of mental disorder or mental
defect, presents a demonstrated danger of inflicting substantial physical harm
upon others.

5300 (continued)
§ Any commitment to a licensed health facility under this article places an affirmative
obligation on the facility to provide treatment for the underlying causes of the
person's mental disorder.
§ Amenability to treatment is not required for a finding that any person is a person as
described above.
§ Treatment programs need only be made available to these persons.Treatment does
not mean that the treatment be successful or potentially successful, and it does not
mean that the person must recognize his or her problem and willingly participate in
the treatment program.

5300.05
§ “Custody” shall be construed to mean involuntary detainment under the
provisions of this part uninterrupted by any period of unconditioned release
from a licensed health facility providing involuntary care and treatment.
§ Conviction of a crime is not necessary for commitment under this article.
§ Demonstrated danger may be based on assessment of present mental
condition, which is based upon a consideration of past behavior of the person
within six years prior to the time the person attempted, inflicted, or threatened
physical harm upon another, and other relevant evidence.

EXERCISING
RESTRAINT
If you have ten thousand
regulations you destroy all
respect for the law.
-- Winston Churchill

RESTRAINT OF PATIENTS AT HOSPITALS
§ “Acute psychiatric hospital” means a hospital having a duly constituted governing body with
overall administrative and professional responsibility and an organized medical staff which
provides 24-hour inpatient care for mentally disordered, incompetent or other patients,
including the following basic services: medical, nursing, rehabilitative, pharmacy and
dietary services.
§ “General acute care hospital” means a health facility having a duly constituted governing
body with overall administrative and professional responsibility and an organized medical
staff that provides 24-hour inpatient care, including the following basic services: medical,
nursing, surgical, anesthesia, laboratory, radiology, pharmacy, and dietary services.

JOINT COMMISSION ON RESTRAINTS
STANDARD (PC.03.05.01):
§ The hospital uses restraint or seclusion only when it can be clinically justified or when
warranted by patient behavior that threatens the physical safety of the patient, staff or
others.

JOINT COMMISSION (continued)
ELEMENTS OF PERFORMANCE (PC.03.05.01):
§ The hospital uses restraint or seclusion only to protect the immediate physical safety of the patient,
staff or others.
§ The hospital does not use restraint or seclusion as a means of coercion, discipline, or convenience, or
staff retaliation.
§ The hospital uses restraint or seclusion only when less restrictive interventions are ineffective.
§ The hospital uses the least restrictive form of restraint or seclusion that protects the physical safety of
the patient, staff, or others.
§ The hospital discontinues restraint or seclusion at the earliest possible time, regardless of the
scheduled expiration of the order.

§ The hospital uses restraint or seclusion safely.

§ The hospital implements restraint or seclusion using safe techniques identified by the
hospital’s policies and procedures in accordance with law and regulation.
§ The use of restraint and seclusion is in accordance with a written modification to the
patient’s plan of care.

§ The hospital initiates restraint or seclusion based on an individual order.

§ A physician, clinical psychologist, or other authorized licensed independent practitioner
primarily responsible for the patient’s ongoing care orders the use of restraint or seclusion
in accordance with hospital policy and law and regulation.
§ The hospital does not use standing orders or PRN (“as needed”) orders for restraint or
seclusion.
§ The attending physician or clinical psychologist is consulted as soon as possible, in
accordance with hospital policy, if he or she did not order the restraint or seclusion.

ELEMENTS OF PERFORMANCE (PC.03.05.05) (continued):
§ Unless state law is more restrictive, orders for the use of restraint or seclusion used for the
management of violent or self-destructive behavior that jeopardizes the immediate physical
safety of the patient, staff, or others may be renewed within the following limits:
§ 4 hours for adults 18 years of age or older
§ 2 hours for children and adolescents 9 to 17 years of age
§ 1 hour for children 9 years of age
§ Orders may be renewed according to the time limits for a maximum of 24 consecutive hours

§ Unless state law is more restrictive, every 24 hours, a physician, clinical psychologist, or
other authorized licensed independent practitioner primarily responsible for the patient’s
ongoing care sees and evaluates the patient before writing a new order for restraint or
seclusion used for the management of violent or self-destructive behavior that jeopardizes
the immediate physical safety of the patient, staff, or others in accordance with hospital
policy and law and regulation.
§ Orders for restraint used to protect the physical safety of the nonviolent or non-self-
destructive patient are renewed in accordance with hospital policy.

§ The hospital monitors patients who are restrained or secluded.

ELEMENTS OF PERFORMANCE (PC.03.05.07)
§ Trained physicians, clinical psychologists, or other licensed independent practitioners or
staff monitor the condition of patients in restraint or seclusion.

§ The hospital has written policies and procedures that guide the use of restraint or seclusion.

ELEMENTS OF PERFORMANCE (PC.03.05.09): The hospital’s policies and procedures
regarding restraint or seclusion include the following:
§ Physician, clinical psychologist, and other authorized licensed independent practitioner
training requirements
§ Staff training requirements
§ The determination of who has authority to order restraint and seclusion
§ The determination of who has authority to discontinue the use of restraint or seclusion
§ The determination of who can initiate the use of restraint or seclusion

ELEMENTS OF PERFORMANCE (PC.03.05.09): (continued):
§ The circumstances under which restraint or seclusion is discontinued
§ The requirement that restraint or seclusion is discontinued as soon as is safely possible
§ A determination of who can assess and monitor patients in restraint or seclusion
§ Time frames for assessing and monitoring patients in restraint or seclusion
§ A definition of restraint
§ A definition of seclusion
§ A definition or description of what constitutes the use of medications as a restraint

§ The hospital has written policies and procedures that guide the use of restraint or seclusion.
§ The hospital evaluates and reevaluates the patient who is restrained or secluded.
§ The hospital continually monitors patients who are simultaneously restrained and secluded.
§ The hospital documents the use of restraint or seclusion.

§ Any in-person medical and behavioral evaluation for restraint or seclusion used to manage
violate or self-destructive behavior
§ A description of the patient’s behavior and the intervention used
§ Any alternatives or other less restrictive interventions attempted
§ The patient’s response to the intervention(s) used, including the rationale for continued use
of the intervention
§ Individual patient assessments and reassessments

§ The intervals for monitoring
§ Revisions to the plan of care
§ The patient’s behavior and staff concerns regarding safety risks to the patient, staff, and others
§ Injuries to the patient
§ Death associated with the use of restraint or seclusion
§ The identity of the physician, clinical psychologist, or other licensed independent practitioner who
ordered the restraint or seclusion
§ Orders for restraint or seclusion

SKILLED NURSING
Reason has always existed, but
not always in a reasonable form.
-- Karl Marx

RESTRAINTS AND POSTURAL SUPPORT IN SKILLED NURSING
§ Written policies and procedures concerning the use of restraints and postural supports shall
be followed.
§ Restraints shall only be used with a written order of a licensed healthcare practitioner acting
within the scope of his or her professional licensure. The order must specify the duration
and circumstances under which the restraints are to be used. Orders must be specific to
individual patients.There shall be no standing orders.
§ The only acceptable forms of physical restraints shall be cloth vests, soft ties, soft cloth
mittens, seat belts and trays with spring release devices. Soft ties means soft cloth which
does not cause abrasion and which does not restrict blood circulation.

RESTRAINTS AND POSTURAL SUPPORT (continued)
§ Restraints of any type shall not be used as punishment, as a substitute for more effective
medical and nursing care, or for the convenience of staff.
§ No restraints with locking devices shall be used or available for use in a skilled nursing
facility.
§ Seclusion, which is defined as the placement of a patient alone in a room, shall not be
employed.
§ Restraints shall be used in such a way as not to cause physical injury to the patient and to
insure the least possible discomfort to the patient.
§ Physical restraints shall be applied in such a manner that they can be speedily removed in
case of fire or other emergency.

USE OF PHYSICAL RESTRAINTS
§ Treatment restraints may be used for the protection of the patient during treatment and diagnostic
procedures such as, but not limited to, intravenous therapy or catheterization procedures.
Treatment restraints shall be applied for no longer than the time required to complete the treatment.
§ Physical restraints for behavior control shall only be used on the signed order of a physician (in
certain instances also a psychologist, or other person lawfully authorized to prescribe care) except in
an emergency which threatens to bring immediate injury to the patient or others.
§ In such an emergency an order may be received by telephone, and shall be signed within 5
days. Full documentation of the episode leading to the use of the physical restraint, the type of
the physical restraint used, the length of effectiveness of the restraint time and the name of the
individual applying such measures shall be entered in the patient's health record.

USE OF PHYSICAL RESTRAINTS (continued)
§ Physical restraints for behavioral control shall only be used with a written order designed to
lead to a less restrictive way of managing, and ultimately to the elimination of, the behavior
for which the restraint is applied.There shall be no PRN orders for behavioral restraints.
§ Each patient care plan which includes the use of physical restraint for behavior control shall
specify the behavior to be eliminated, the method to be used and the time limit for the use
of the method.
§ Patients shall be restrained only in an area that is under supervision of staff and shall be
afforded protection from other patients who may be in the area.

USE OF DRUGS TO RESTRAIN
§ The specific behavior or manifestation of disordered thought process to be treated with the
drug is identified in the patient's health record.
§ The plan of care for each patient specifies data to be collected for use in evaluating the
effectiveness of the drugs and the occurrence of adverse reactions.
§ The data collected shall be made available to the prescriber in a consolidated manner at
least monthly.
§ PRN orders for such drugs shall be subject to the requirements of this section.
•

POSTURAL SUPPORT
“Postural support” means a method other than orthopedic braces used to
assist patients to achieve proper body position and balance. Postural supports
may only include soft ties, seat belts, spring release trays or cloth vests and shall
only be used to improve a patient's mobility and independent functioning, to
prevent the patient from falling out of a bed or chair, or for positioning, rather
than to restrict movement.These methods shall not be considered restraints.

POSTURAL SUPPORT (continued)
§ The use of postural support and the method of application shall be specified in
the patient's care plan and approved in writing by the physician, psychologist, or other
person lawfully authorized to provide care.
§ Postural supports shall be applied:
§ Under the supervision of a licensed nurse.
§ In accordance with principles of good body alignment and with concern for circulation
and allowance for change of position.

LIABILITY ISSUES
The evolution of sense is, in a sense, the evolution
of nonsense. -- Vladimir Nabokov

HOSPITAL LIABILITY (non County-designated facilities)
No civil or criminal liability to licensed general acute care or psychiatric hospital,
or any of its physicians and surgeons, providing emergency medical services in
any department for detaining a person if all of the following conditions exist
during the detention.

HOSPITAL LIABILITY (continued)
§ The person cannot be safely released from the hospital because, in the opinion of the
treating physician and surgeon, or a clinical psychologist with the medical staff
privileges, clinical privileges, or professional responsibilities, the person, as a result
of a mental disorder, presents a danger to himself or herself, or others, or is gravely
disabled.
§ The hospital staff, treating physician and surgeon, or appropriate licensed mental
health professional, have made, and documented, repeated unsuccessful efforts to
find appropriate mental health treatment for the person.

§ Telephone calls or other contacts required pursuant to this paragraph shall commence at the
earliest possible time when the treating physician and surgeon has determined the time at
which the person will be medically stable for transfer.
§ In no case shall the contacts required pursuant to this paragraph begin after the time when
the person becomes medically stable for transfer.
§ The person is not detained beyond 24 hours.
§ There is probable cause for the detention.

If the person is detained beyond eight hours, but less than 24 hours, both of the following
additional conditions shall be met:
§ A discharge or transfer for appropriate evaluation or treatment for the person has been
delayed because of the need for continuous and ongoing care, observation, or treatment
that the hospital is providing.
§ In the opinion of the treating physician and surgeon, or a clinical psychologist with the
medical staff privileges or professional responsibilities, the person, as a result of a mental
disorder, is still a danger to himself or herself, or others, or is gravely disabled.

In addition to the other immunities, a licensed general acute care or psychiatric hospital,
licensed professional staff of those hospitals, or any physician and surgeon, providing
emergency medical services in any department of those hospitals to a person at the hospital
shall not be civilly or criminally liable for the actions of a person detained up to 24 hours after
that person's release from the hospital, if all of the following conditions exist during the
detention:
§ The person has not been admitted to a licensed general acute care hospital or a licensed
acute psychiatric hospital for evaluation and treatment pursuant to Section 5150.

§ The release from the hospital is authorized by a physician and surgeon or a clinical
psychologist with the medical staff privileges or professional responsibilities, who
determines, based on a face-to-face examination of the person detained, that the person
does not present a danger to himself or herself or others and is not gravely disabled.
§ In order for this paragraph to apply to a clinical psychologist, the clinical psychologist shall
have a collaborative treatment relationship with the physician and surgeon. The clinical
psychologist may authorize the release of the person from the detention, but only after he
or she has consulted with the physician and surgeon.

§ In the event of a clinical or professional disagreement regarding the release of
a person subject to the detention, the detention shall be maintained unless
the hospital's medical director overrules the decision of the physician and
surgeon opposing the release. Both the physician and surgeon and the clinical
psychologist shall enter their findings, concerns, or objections in the person's
medical record.

§ Nothing in this section shall affect the responsibility of a hospital to comply
with all state laws and regulations pertaining to the use of seclusion and
restraint and psychiatric medications for psychiatric patients. Persons detained
under this section shall retain their legal rights regarding consent for medical
treatment.
§ A person detained under this section shall be credited for the time detained,
up to 24 hours, in the event he or she is placed on a subsequent 72-hour hold
pursuant to Section 5150.

MENTAL HEALTH
PARITY
The hardest thing of all is to find
a black cat in a dark room,
especially if there is no cat.
-- Confucius

CMHPA
§ The California legislature passed its own mental health parity laws in 1999.
§ The legislature found that coverage limitations resulted in inadequate
treatment of mental illness, causing “untold suffering” for people with
treatable conditions.
§ The legislature also found that the lack of mental health insurance resulted in
increased expenses for local and state governments.

CMHPA (continued)
§ CMHPA prohibited “discrimination against people with biologically based
mental illnesses, dispel[ed] unsound distinctions between mental and
physical illnesses, and require[d] equitable coverage to prevent adverse risk
selection.”
§ Provides the same coverage irrespective of age.
§ Benefits include (1) outpatient services, (2) inpatient hospital services, (3)
partial hospital services and (4) prescription drugs.
§ Does not mention residential treatment.

MHPAEA
§ The 2008 Paul Wellstone and Pete Domenici Mental Health Party and
Addiction Equity Act (MHPAEA) became effective January 2010.
§ MHPAEA prohibits financial requirements and treatment limitations for mental
health and substance abuse benefits in group health plans from being more
restrictive than those placed on medical and surgical benefits.
§ MHPAEA applies to health plans provided by employers with more than 50
employees and individual plans purchased through a Health Care Exchange.

MHPAEA (continued)
§ Does not apply to Medicare or Medicaid.
§ A qualified health plan must include at least ten essential health benefits, although
certain states require more.
§ California mandates “chemical dependency services” must be consistent with
MHPAEA, including inpatient detoxification, outpatient evaluation and treatment for
chemical dependency, transitional residential recovery services or chemical
dependency treatment in a residential recovery setting.

HIPAA AND MENTAL HEALTH
The secret of being a bore . . . is to tell everything.
-- Voltaire

ADDED PROTECTIONS UDER HIPAA
§ Psychotherapy notes receive special protections under the HIPAA Privacy Rule.
§ Section 164.510(b)(3) of the HIPAA Privacy Rule permits a health care provider,
when a patient is not present or is unable to agree or object to a disclosure due
to incapacity or emergency circumstances, to determine whether disclosing a
patient’s information to the patient’s family, friends, or other persons is in the
best interests of the patient.

THERAPIST NOTES
§ Federal law refers to psychotherapy notes as excluded from access (45 CFR
Section 164.524).
§ But California does not set aside psychotherapy notes. California law wants to
provide access to such health care records by patients. There are limits to this
disclosure, however (Health and Safety Code Section 123115 (b)).
§ Providers should make a determination if there would be a "substantial risk of
significant adverse or detrimental consequences to a patient in seeing or
receiving a copy of mental health records requested by the patient.”

THERAPIST NOTES (continued)
§ Make a written record, to be included with the mental health records requested,
noting the dates of the request and explaining provider’s refusal to permit
inspection or copying.
§ Include a description of the specific adverse or detrimental consequences to the
patient that the provider anticipate.
§ Permit inspection by, or provide copies of the mental health records to, a licensed
physician and surgeon, licensed psychologist, licensed marriage and family
therapist, licensed clinical social worker, or licensed professional clinical counselor,
designated by request of the patient.

THERAPIST NOTES (continued)
§ Inform the patient of the refusal to permit the inspection or obtain copies of
the requested records,AND
§ Inform the patient of the right to require the provider to permit inspection by,
or provide copies to, a licensed physician and surgeon, licensed psychologist,
licensed marriage and family therapist, licensed clinical social worker, or
licensed professional clinical counselor designated by written authorization of
the patient.
§ Indicate in the mental health records of the patient whether the request was
made as set forth above.

HIPAA AND EMTALA
§ A health care provider’s “duty to warn” generally is derived by standards of ethical
conduct and state laws/court decisions.
§ HIPAA permits a provider to notify a patient’s family members of a serious and
imminent threat to the health and safety of the patient or others if those family
members are in a position to lesson or avert the threat.
§ Moses v. Providence Hospital and Medical Centers, Inc.: Sixth Circuit decision held
that the EMTALA obligation to stabilize and emergency medical condition survives
inpatient admission. Also expands right to sue to include anyone who is injured as a
”direct result” of the violation.

FEBRUARY 2016 REGULATIONS
§ Proposed rule would revise 42 CFR, Part 2 (Confidentiality of Alcohol and Drug
Abuse Patient Records).
§ Authorizing statute (42 U.S.C. Section 290dd-2) protects the confidentiality of
the identity, diagnosis, prognosis or treatment of any patient records which are
maintained in connection with the performance of any federally assisted
program or activity relating to substance abuse education, prevention,
training, treatment, rehabilitation or research.
§ Last update was 1987.

FEBRUARY 2016 REGULATIONS (continued)
§ The laws and regulations governing confidentiality of substance abuse records were
written out of great concern about the potential use of this information against
individuals, causing them to avoid needed treatment.
§ Negative consequences of disclosure includes loss of employment, loss of housing,
loss of child custody, discrimination by medical professionals and insurers, arrest and
incarceration.
§ Proposed rule would make policy changes to the regulations to better align them
with advances in the U.S. health care delivery system while retaining important
protections.

§ Purpose is to modernize rules by facilitating the electronic exchange of
substance use disorder information for treatment and other legitimate health
care purposes while ensuring appropriate confidentiality protections for
records that might identify an individual, directly or indirectly, as having or
having had a substance use disorder.
§ SAMHSA proposed to define the term “substance use disorder” in such a
manner as to cover substance use disorders that can be associated with altered
mental status that has the potential to lead to risky and/or socially prohibited
behaviors.

“Treating provider relationship” means that, regardless of whether there has been an
actual in-person encounter:
§ A patient agrees to be diagnosed, evaluated and/or treated for any condition by an
individual or entity, and
§ The individual or entity agrees to undertake diagnosis, evaluation and/or treatment
of the patient, or consultation with the patient, for any condition.
§ An agreement might be evidenced, among other things, by making an appointment
or by a telephone consultation.

§ Delete the definition of “detoxification treatment” and replace it with the
definition of the currently acceptable term “withdrawal management.”
§ Expand the definition of “patient.”
§ Delete the speed with which information could identify a patient and focus
only on the information.
§ Revise the definition of “Records” to include any information whether recorded
or not, received or acquired by, an applicable program relating to a patient.
This includes both paper and electronic records.

Craig B. Garner Garner Health Law Corporation
§ Craig Garner is an attorney and health care consultant, specializing in issues surrounding modern American
health care and the ways in which it should be managed in its current climate of reform. Craig’s law practice
focuses on health care mergers and acquisitions, regulatory compliance and counseling for providers in all
matters pertaining to contemporary health care in the United States. Craig is admitted as an attorney and
counselor at law in the State of California, District of Columbia and the State of New York.
§ Craig’s consulting practice offers an array of short and long term services to help health care institutions
navigate the fluid structure of the U.S. health care system, including interim management of health care
institutions, strategic guidance, fair market valuations, analysis for health care mergers and acquisitions,
development and implementation of health care regulatory compliance programs and expert consulting
• Between 2002 and 2011, Craig was the Chief Executive Officer of Coast Plaza Hospital in Norwalk, California.
• Craig is also a Fellow with the American College of Healthcare Executive.
• Additional information can be found at www.garnerhealth.com.

THANK YOU
13274 Fiji Way, Suite 250
Marina del Rey, CA 90292
(310) 458-1560
craig@garnerhealth.com
www.garnerhealth.com

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