In recent months, I've noticed a dramatic increase in complaints from families of those who have been involuntarily hospitalized for psychiatric reasons as it pertains to the front-end of the 1013 process in Georgia: the emergency room.
The Statutory Framework of the Involuntary Hospitalization System
For a refresher, the process of involuntary hospitalization is (generally speaking) a two-part process per O.C.G.A. §37-3-43. The 1013 form is the equivalent of a transfer order, by which certain psychiatric professionals and/or law enforcement (in limited circumstances) can authorize the involuntary transport of an individual deemed a significant threat of imminent harm to themselves or others to an emergency receiving facility (ER) as designated by the state Department of Behavioral Health and Developmental Disabilities (DBHDD) per O.C.G.A. §37-3-40. [As a brief side note, this is another concern I've had that I'll address in a separate post, but one would assume based upon the language of said statute that those ERs not so designated cannot accept 1013 patients, and my information tells me that there are far more 1013 admissions to non-designated ERs in Georgia than the public is aware.] After admission to the ER on the 1013, it stays alive for 48 hours, during which time a medical doctor/psychiatrist must sign off on further involuntary hospitalization (a form 1014), or else the statute explicitly states that a person must be discharged. The 1014 is also a 24-hour transport order, during which time the individual must be moved to an evaluating facility (think a state or private specialized psychiatric hospital, like Georgia Regional Hospital in Atlanta, or Peachford Hospital, Ridgeview, etc.). If the transport doesn't happen within that period of time, then the implication of the time limit is also that the patient must be discharged. If the patient is transported and lands in an evaluating facility, they have up to an additional five days (weekends and holidays excluded) to hold the person against their will and theoretically treat the person.
The Underpinnings for Hospital Abuse of the Law
There are a couple of main layers to the foundation of the problems that I outline in this post. First, COVID-19 did a number on state (free) psychiatric hospitals in terms of loss of staff, due to sickness, burnout, better pay, or a perhaps a combination. To exacerbate the problem, state accreditation requirements for these hospitals require a certain number of staff per patient beds, thus with a reduction in staff comes a required reduction in beds to maintain accreditation status, leading to a catastrophic spiral of loss of available public crisis beds. The overspill has certainly been taken up by private psychiatric hospitals, bolstered by mental health insurance parity laws recently passed, but the result has been overcrowding in many of them and, in some cases, commissioning of beds by the State to account for indigent or uninsured individuals. There are other reasons beds have become harder to come by in the private system as well (some of those reasons being pretty shameless in this blogger's personal opinion), but the end result is that it backs up 1013/1014 admissions at the ERs when no evaluating facility bed can be found for the individual in question.
Secondly, there has always existed a black hole of education when it comes to the medical staff at emergency rooms (and crisis hospitals, for that matter) and the laws that apply to individuals who a re involuntarily hospitalized. I don't know who carries the blame there exactly, but I imagine it's shared between the corporations running the hospitals and DBHDD. Consider that these laws under Chapter 3 of Title 37 of the Georgia Code are really the only laws that permit private institutions, and not governmental agencies, to essentially restrain the liberty of individuals who they deem to be substantial threats of imminent harm. ER staff is well aware of the authority granted to them in this regard, but almost completely ignorant to the rights attendant to patients that come hand-in-hand with that authority. This primes the system for abuse of patients' rights under the law, and the system is, indeed, rife with said abuse. As the old axiom goes, power corrupts, and absolute power (as ER staff and doctors often believe they have) corrupts absolutely. [Another note: I'm not exonerating the private evaluating psychiatric hospitals here; they are probably more nefariously violating patients' rights in this way but I'll again save that for another day.]
The Manifestation of Abuse of Patients' Rights
The consequences of these two logistical shortfalls have manifested in troubling ways. One is that hospitals trample on rights specifically granted patients, such as visitation by family and least restrictive placement. O.C.G.A §37-3-142 specifically protects the patient's right to visitation in these circumstances, and yet I hear about families being denied visitation of their loved ones all the time under the premise that a 1013 completely wipes away their rights to anything. In fact, I have heard of one specific instance where a nurse told a family member that the patient "had no rights" on account of him being under a 1013. I have also heard of families being threatened with police intervention if they did not leave.
But, most concerning is the relatively recent practice of ERs reissuing 1013s when they can't find a psych bed for the patient in question. In other words, they simply decide that the person meets the criteria for involuntary hospitalization every 48 hours, over and over, until they either find a bed or decide they will discharge the person.
The legal problem with this "technique" is that O.C.G.A. §37-3-43 sets specific timelines for either discharge or transfer, and does not explicitly authorize the reissuance of 1013s beyond admission to the ER. While there is no explicit prohibition to reissuance, to do so would effectively negate the statutory timelines, an outcome that any law student who has studied statutory construction would tell you is impermissible interpretation of the statute. So, to put it bluntly, what these ERs are doing is illegal, plain and simple, and absent any statutory authority would seemingly amount to false imprisonment, punishable by civil, and possibly even criminal, law.
How to Remedy These Illegal and Dangerous Practices
Two natural questions arise from these malignancies in the system: (1) what are the hospitals supposed to do with someone who they think is a danger to themselves or the public but where no bed can be found for the person; and (2) how can this practice of violating patients' rights be curtailed? My short answer to the first question is: not my problem. I don't envy the predicament in which an ER might find itself, but I also believe that the answer is decidedly NOT to trample on the rights of vulnerable individuals who are already behind the eight ball by having their liberty restrained with very little accountability (see question number 2). The legislature can modify the law if they so choose and find suitable answers by providing more funding and other support to struggling public psych hospitals, but a private institution should be expected to follow the laws that are in place especially when they are given such enormous authority typically reserved to law enforcement and/or the courts. And for those who might suggest that sacrificing a restrained individual's rights and foregoing any legal guidelines is preferred to a supposedly dangerous individual being discharged, the consequences of such a cavalier approach to this practice is multifaceted. Not only are there several instances where 1013s are issued in less-than-dire circumstances out of an abundance of legal caution (read: liability), even if it were potentially justified, the slippery slope of precedent it creates harms those individuals who are unjustifiably restrained. On top of that, crisis hospitalization is a trauma, and disregarding the legal protections to these individuals only reinforces in their minds that mental health care is unpleasant, unfair, controlling, and akin to incarceration. Try convincing that same person afterwards that meaningful outpatient care is in their interest and might lead to a happier life.
As for the second question, probate courts in Georgia, to whom jurisdiction over these matters is given by law, need to establish protocol authorized by statute for habeas corpus challenges and judicial inquiry where allegations of patient rights violations need be addressed. As it stands, most every county in the State that I've come across do not have these protocol in place for the front-end of hospitalization, only for extended hospitalization (beyond ~week's time), leaving little to no legal accountability for ERs and evaluating facilities for the first week of hospitalization. This is a massive problem for numerous reasons that extend beyond the purpose of this post, but it is a hole in the system that must, must, must, be remedied if the rights granted involuntary patients are to have any force.
Finally, both the State (via DBHDD) and the Boards of these hospitals have to step up and dust off the educational training books, if they have any. If you're going to put non-legal staff in charge of restraining a fellow individual's liberty, then an inside-out understanding of the limitations of these laws, as well as the plethora of rights granted patients and their families, must be firmly established with every individual who is granted this authority.
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