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Supreme Court strikes down ‘psychiatric boarding’ of mentally ill

Psychiatric boarding — the practice of warehousing mentally ill patients in hospital emergency rooms due to a lack of available treatment space — is unlawful, according to the state Supreme Court.

“(State law) does not authorize psychiatric boarding as a method to avoid overcrowding certified evaluation and treatment facilities,” states the court’s decision, authored by Justice Steven Gonzalez.

The unanimous ruling, issued Thursday, throws a wrench into the state mental health system and forces state leaders to confront a longstanding dilemma: a shortage of mental-health treatment beds created by a series of budget cuts.

The consequence: Washington ranks last or close to last in the nation for psychiatric beds, depending on the measure.

The high court court upheld a series of earlier rulings that originated in Pierce County, first reported by The News Tribune last year.

A group of 10 patients detained under Washington’s civil commitment law petitioned the court for relief, arguing that they were being held in hospital emergency departments without the individual treatment guaranteed by state and federal law.

Testimony in those initial hearings, referenced in the Supreme Court’s decision, noted that psychiatric boarding has “pretty much exploded” across the state in the past seven years.

According to state numbers, 3,421 mental patients were parked in emergency departments in 2013.

The high court’s decision came in short order, only 43 days after the justices heard oral arguments on the issue.

The ruling noted that the state’s civil commitment system has been “regularly overwhelmed” since the Legislature enacted the Involuntary Treatment Act in 1979. The law governs commitment procedures for people with mental illness.

Advocates for people with mental illness cheered the court’s ruling.

Chris Jennings, a veteran public defender who represents mental patients in Pierce County courts, said the decision provided a clear explanation of the issue.

“I’m feeling pretty good today,” he said. “I think they got it exactly right. Anytime they’re unanimous impresses me. It’s just so clear-cut.”

A statement from the state Department of Social and Health Services, overseer of the state’s $500 million mental-health system, was gloomier.

“This latest decision by the court means people in need of treatment cannot be detained and may end up on the streets,” said Victoria Roberts, a deputy director for the agency’s mental-health division. “DSHS, as always, respects the authority of the courts, but we are very concerned for the people in need and for the community.”

Ron Adler, CEO of Western State Hospital, said he wasn’t sure how the court’s decision will affect the state’s largest mental hospital.

“All I can tell you is that our legal counsel have been reviewing this decision,” he said. “It is going to have an impact on Western State Hospital. I just don’t know what it is yet.”

Under state law, people with mental illness who present imminent risk of harm to themselves or others can be can committed and held by the state against their will.

Patients are entitled to a mental-health evaluation by a licensed professional within 72 hours. If the evaluation concludes the individual should be detained, a court hearing follows.

A patient can be detained for up to 14 days in a certified mental-health evaluation and treatment center. Longer commitments can last 90 or 180 days, and patients must be detained at Western State in Lakewood or Eastern State Hospital near Spokane.

When no room is available at the state hospitals or evaluation and treatment centers, patients typically are transferred to hospital emergency wards, where they wait weeks or months for a certified bed.

The practice, known as psychiatric boarding, was the key issue considered by the Supreme Court. Patients argued that they do not receive individual treatment in emergency departments.

Attorneys for hospitals around the state concurred in briefs filed with the court, saying they lack the facilities and staff to provide treatment.

Attorneys for the state argued that hospitals were better than nothing, and warned that the alternative would be to release patients immediately, even if they present a risk of harm to themselves or others.

The Supreme Court sided with patients and hospitals, and against DSHS.

The central idea: No vacancy is no excuse. In the absence of a specific medical need, the state cannot detain people against their will solely to ease overcrowding without providing treatment.

“By its plain terms, this rule does not authorize a single bed certification merely because there is no room at certified facilities with which the county already has a contractual relationship,” the court’s decision states.

Thursday’s statement from DSHS acknowledged the funding crisis and the psychiatric bed shortage, while lamenting the lack of resources.

“The DSHS mental hospital budget is already deeply in deficit and its psychiatric hospitals are already at maximum capacity,” the statement declared.

Agency leaders met with county mental-health providers at length Thursday to discuss the court’s decision.

The statement from DSHS added that agency leaders have proposed adding capacity at the state’s mental hospitals. Other information obtained by The News Tribune before Thursday’s court ruling suggested the opposite — but the court’s action could alter the budget debate.

In theory, the court’s decision provides a powerful argument for defense attorneys in commitment proceedings.

A patient ordered to a hospital emergency department instead of a certified evaluation and treatment center could cite the court’s ruling that the practice is unlawful and argue for immediate release from detention.

Jennings, the public defender, said he doesn’t expect to employ that strategy right away, though patients facing psychiatric boarding orders continue to stream through local courts.

“We’ll be getting together with the other mental health advocacy organizations and deciding what next steps to take,” he said Thursday. “Obviously because the Supreme Court ruled today doesn’t make an adequate number of evaluation and treatment beds available tomorrow.

“Our interest is in getting clients into appropriate treatment. We don’t want them left in the streets, and we don’t want them piling up into jails, which is happening already.”

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