In a risky show of brinksmanship, Washington physicians supported an effort to deem pysch boarding unconstitutional. The question remains as to whether they will get relief from EMTALA, and if the state will open up enough new psych beds
In a risky show of brinksmanship, Washington physicians supported an effort to deem pysch boarding unconstitutional. The question remains as to whether they will get relief from EMTALA, and if the state will open up enough new psych beds
Last April, not unlike a desperate patient crying for help, the emergency physicians of Washington State put a figurative gun to their own heads when they filed an amicus brief in support of a suit by ten psych patients. These patients claimed that their constitutional rights were being violated by being boarded in the ED.
The brief described how years of underfunding had resulted in a 36% reduction in the available beds at state psychiatric treatment facilities, while the population had grown 14%. Further, the brief noted that outpatient psychiatric services had been cut by more than $90 million over three years. Noting that the ED is the entry point for most of these patients, it had also become the end point.
The Washington Chapter of ACEP voted to join the plaintiffs brief asking the state Supreme Court to uphold a Pierce County Superior Court ruling on the matter knowing that if they succeeded it would precipitate an impossible situation. If health care workers continued to board psych patients they could be found in violation of the Involuntary Treatment Act and even possibly the felony of unlawful imprisonment. However, if these same providers discharged a psychiatrically unstable patient they could be found in violation of EMTALA. It was a game of high stakes brinkmanship. And it appears, for the moment, to have worked in the favor of the patients and the doctors. Maybe.
On August 6th, the Supreme Court decided that it was, indeed, in violation of the states Involuntary Treatment Act and therefore unconstitutional to hold a patient against his or her will for the purpose of psychiatric treatment in any situation that was not conducive to such treatment. The implication was that temporary psych holding in the ED became unconstitutional. However, the court offered no guidance or remedy on how the situation would be resolved in light of the EMTALA requirements.
Shortly after the ruling, Governor Inslee offered a 20 day stay on the ruling followed by $30 million in additional funding.
Immediately after the ruling, Washington ACEP temporarily switched positions and joined other health care groups in support of a motion by the Department of Social and Health Services asking the state Supreme Court to grant a temporary 120 day stay of the court’s decision. At that time, they argued that failing to stay the decision they had previously supported “could pose a serious public safety risk.” After a month delay the court granted the stay, extending the deadline to December 6th of this year. In preparation for this deadline the state has made 145 new psychiatric beds available.
One of the unique features of the Washington situation is that emergency physicians, while being responsible for patients deemed to require involuntary admission, don’t actually make that decision. Rather, once the patient is identified as a potential risk to himself or others, they are evaluated by a social worker certified by the state who makes the disposition. But the responsibility for the patient remains with the emergency department until the disposition is completed.
While the suit – and the stay – appear to have addressed Washington’s psych boarding problem for the time being, any one with experience in emergency medicine can see the pitfalls. For one, we know from experience that psychiatric beds have a way of filling, regardless of capacity. Second, what happens if other states follow Washington’s lead but their government fails to respond with funding and additional psych beds?
Hopefully necessity will spawn innovation here as it has elsewhere in healthcare. One out-of-the-box solution might be tele-psych clearance in the EDs that don’t have psychiatrists willing or able to come to the ED to make disposition themselves. This author, however, feels that this problem will not be solved until emergency physicians are educated and empowered – and legally protected – to make the tough decisions concerning psych bed utilization in a resource restricted environment.
Mark Plaster, MD is the founder and executive editor of Emergency Physicians Monthly
1 Comment
Its interesting, the timing of this article. I’m in Washington and I was just told we’re renovating our hospital to add in some adult psych beds. Huh.