5.3 Legal Rights of Patients

When individuals with mental health disorders are admitted to a hospital, they may lose a number of abilities that we take for granted, such as the ability to come and go, schedule their time, and choose and control their activities of daily living. Some patients may be admitted involuntarily due to severe symptoms and dangerous behaviors and held despite their wishes to leave. Furthermore, patients in mental health settings may have disturbances in memory, insight, and judgment, making understanding of their circumstances difficult. As discussed in Chapter 1, individuals with mental illnesses are a vulnerable population. They may be unaware of their rights and may need legal protection.

Psychiatric nurses often encounter complex situations involving ethical issues, legal concerns and patient wellbeing. Ethical principles were discussed in the last section. This section will explore legal considerations that nurses apply in their practice with psychiatric patients, starting with a discussion of historical elements.

The current procedures involved in admission and care of psychiatric patients have evolved over decades of legislation and case law. Egregious treatment in the past has resulted in such legislation as the Patient Self-Determination Act, the Health Insurance Portability and Accountability Act (HIPAA), the Affordable Care Act, and state laws that have resulted in greater patient rights. In many states, patients’ rights associated with inpatient admission to a mental health unit are spelled out in state law and are displayed prominently. Patients must be specifically informed of their rights as described in the Patient Bill of Rights document.^[1] Understanding patient rights is one key to making important health care-related decisions. State and federal laws protect patients’ interests in various areas, including patient privacy and informed consent.

The Patient Self-Determination Act was passed in 1990 and is considered a landmark law for patient rights.^[2] This law requires hospitals, skilled nursing facilities, home health agencies, hospice programs, and health maintenance organizations to provide clear written information for patients concerning their legal rights to make health care decisions, including the right to accept or refuse treatment. It also requires agencies to ask patients about advanced directives and to document any wishes the patient has in regard to the care they do or do not want.^[3] Interprofessional team members, including nurses, have an ethical duty to ensure that patients know and understand their health care-related rights.^[4] See the following box for a list of patient rights included in this law. These rights are further discussed in the following subsections.

Admission for Care

When patients with mental health disorders are admitted for inpatient care, the type of admission dictates certain rights and aspects of their treatment plan. Admissions may be voluntary admissions, emergency admissions, or involuntary admissions.

Voluntary Admission

Adult individuals who present to a psychiatric facility and request hospitalization are considered voluntary admissions. Those who seek help voluntarily have certain rights that differ from emergency and involuntary admissions. For example, they are considered competent, with the capacity to make health care decisions (unless determined otherwise after thorough assessment). Therefore, they have the right to refuse treatment, including psychotropic medications, unless they become a danger to themselves or others.^[6] Patients admitted voluntarily do not necessarily have an absolute right to discharge at any time but may be required to request discharge. This gives the health care team an opportunity to assess, coordinate, and formulate a plan. If the patient exhibits danger to self or to others, a procedure to change the client’s admission status to involuntary can be initiated.^[7]

Emergency Admissions

Many states allow individuals to be admitted to psychiatric facilities under emergency admission status when they are deemed likely to harm themselves or others. State laws define the exact procedure for the initial evaluation, possible length of detainment, and treatment provided. This may be called a 'hold' or 'petition'. All patients who are admitted as emergencies require diagnosis, evaluation, and emergency treatment according to state law. The time period allotted varies by state law. At the end of the admission period, the facility must either discharge the patient, change their status to voluntary admission, or initiate a civil court hearing to determine the need for continuing treatment on an involuntary basis.^[8]

During an emergency admission, the patient's right to come and go is restricted, but they have a right to consult with an attorney and prepare for a hearing. Patients may be able to refuse some care but may be forced to receive psychotropic medications if they continue to be a danger to themselves or others. However, invasive procedures like electroconvulsive therapy (ECT) are not permitted unless they are ordered by the court or consented to by the client or their legal guardian.^[9]

Involuntary Admissions

There may be circumstances when a person becomes so mentally ill they are at risk of hurting themselves or others, and involuntary admission for care becomes necessary even though the individual does not desire care. An individual can have an involuntary admission to a psychiatric facility if they are diagnosed with a mental illness, pose a danger to themselves or others, are gravely disabled (e.g., unable to provide themselves basic necessities like food, clothing, and shelter), or are in need of treatment but their mental illness prevents voluntary help-seeking behaviors. The legal procedures are different in each state, but standards for involuntary admission are similar.^[10],[11]

Involuntary commitment is a serious matter. Patients who are determined to be legally incompetent lose the ability to manage their financial and legal affairs and make important decisions.^[12] Because of the great impact on the patient and family, there are strict legal protections established by the U.S. Supreme Court. The standard of proof of “mentally ill and dangerous to self or others” must be based on “clear and convincing evidence.” Therefore, two physicians must certify the individual’s mental health status. Additionally, the patient has the right to legal counsel and can take the case to a judge who can order release. If not released, the patient can be involuntarily committed to a state-specified number of days with interim court appearances. Most states permit a 72-hour admission followed by a formal hearing, then involuntary treatment. Court-ordered, or involuntary, treatment implies that the patient must take prescribed medication and comply with other treatments. Involuntary treatment can extend to the outpatient setting, with the individual mandated to attend individual and/or group psychotherapy and medication management appointments. If the patient feels they are being held without just cause, they can file a writ of habeas corpus (i.e., a formal written order to free the person). The court makes a decision based on the “least restrictive alternative” doctrine, meaning the least drastic action is taken to achieve the purpose of care.^[13],[14] Review your state’s laws regarding involuntary admissions.

Involuntary Admission of Minors

Special considerations apply to minors receiving psychiatric care. Many states grant minors aged 12-18 the right to provide consent for mental health treatment and to protest involuntary admission unless they are a risk to themselves or others. In many cases, a neutral mental health review officer is assigned to the case to ensure rights are upheld.^[15] State laws are complex; therefore, nurses must be aware of legal protections of minors in the state in which they work.

Criminal Cases and Pleas of Insanity

If a defendant pleads an insanity defense in a criminal case, they are involuntarily admitted to a mental health facility for an evaluation period determined by state law. During this time an interprofessional team of mental health professionals (including nurses) evaluates the individual's need for hospitalization and notifies the court of their treatment recommendations. This specialized mental health care is referred to as forensic psychiatry.^[16]

Discharge

When patients with mental health disorders are hospitalized, their admission status may impact their rights related to discharge. There are four main types of discharge^[17]:

• Unconditional Discharge: Unconditional discharge refers to unconditional termination of the legal patient and institution relationship. Discharge may be ordered by a psychiatrist, advanced practice provider, or the court.
• Release Against Medical Advice (AMA): Clients who were admitted voluntarily may elect to leave an institution against the advice of the health care provider.
• Conditional Release: Conditional release means the client is discharged from inpatient care but requires outpatient treatment for a specified period of time. If the client was involuntarily admitted, they can be readmitted based on the original commitment order if they don’t participate in outpatient treatment.
• Assisted Outpatient Treatment: Assisted outpatient treatment means the conditional release is court-ordered. This treatment is tied to services and goods provided by social welfare agencies, such as disability benefits and housing.

Reporting Unsafe or Impaired Professionals

Patients have the right to humane treatment and reasonable protection from harm. For example, if a suicidal patient is admitted and left alone with the means of self-harm, the nurse has a duty to protect the patient and can be held liable for injuries or death that occurs.

Nurses also have a duty to protect patients from suspected negligence by a colleague. In many states, nurses have a legal duty to intervene and report risks of harm to patients. This may include reporting concerns to a supervisor, the institution, and/or the state Board of Nursing. For example, nurses must report suspected drug diversion by colleagues because it can impact safe and humane treatment of patients. Read more about drug diversion and substance use disorder in nursing in Chapter 14.

Patient Rights

Even when involuntarily admitted, patients have rights. While specific patient rights may vary from state to state, organizations such as the American Medical Association (AMA) recognize that the physician-patient relationship is collaborative with contributions from both parties. Understanding patient rights is a foundation for this collaborative relationship. Patients and their caregivers strengthen this collaboration when they seek care. Healthcare providers strengthen this collaboration through patient advocacy and respecting patients' rights.

Patient Bill of Rights

A patient's bill of rights is a document many patients or their caregivers receive during a health care encounter. Consider, for example, a person who visits the nearest emergency room to seek care. That person should receive the facility's patient bill of rights as part of the registration process. This document will identify the rights and responsibilities of all patients at that facility or health care system.

There is no uniform patient bill of rights in the United States. The patient bill of rights a patient receives in a hospital or an outpatient setting may vary from hospital to hospital and state to state. Despite this, a few rights remain constant in most clinical settings or health care facilities. These rights include, but are not limited to, the following:

• Right to privacy
• Right to respectful care consistent with your beliefs
• Right to complete information from your provider about your medical condition or treatment plan
• Right to make an informed decision
• Right to refuse treatment
• Right to copies of your medical records
• Right to a second opinion
• Right to continuity of care
• Right to make advance directives

In many health care facilities, the patient bill of rights often includes contact information for the facility's patient advocate. The patient advocate can help patients navigate patient rights issues. Below, selected rights are discussed in more detail.

Right to Treatment

The patient has the right to treatment regardless of ability to pay. If a situation could cause death or disability, it is considered an emergency, and hospitals are legally required to treat the patient. If the hospital does not have the ability to provide the right care, an appropriate transfer to another facility must be made. For example, if a patient is acutely psychotic and agitated and the hospital does not have an appropriate psychiatric unit, the patient will be transferred to one that does.

Right To Refuse Treatment

Health care providers cannot force patients to receive care, unless they are a danger to themselves or others. The provider must give the patient all the necessary information to make an informed decision and respect it. For example, an informed patient can refuse all or some medications. Nurses need to be aware that they cannot force a voluntary patient in any setting to take medication.

Right To Privacy and Confidentiality

One of the main issues that arises in health care law involves patient privacy. Assurance that the patient can report feelings and behaviors, no matter how embarrassing or shocking, is a cornerstone of a trusting relationship. Patients need to give consent to be photographed or to have people other than the healthcare team observe procedures. Nurses and other healthcare team members can be liable for breaching this privacy by social media postings that could potentially identify the patient. The internet is not confidential and blogging, posting photographs, and discussion of patients (even with pseudonyms) have resulted in lawsuits. The Health Insurance Portability and Accountability Act (HIPAA) prohibits health care providers from disclosing patients' medical records without consent. Patients have legal options if an improper disclosure occurs. First, they can file a complaint with the Department of Health and Human Services (HHS). Second, depending on the laws of their state, they can seek compensation by filing a suit for invasion of privacy.

Exceptions to the Right to Privacy

Duty to Warn: Members of the healthcare team are obliged to report a patient's threats of harm to a specific person or group. Should a patient reveal an intent to harm someone, a call to the intended victim, the family, and/or law enforcement is required. Staff nurses are to report any threats to the provider.

Suspected Child or Elder Abuse: Should a patient report instances of abuse of children, elders, or disabled adults, the healthcare professional is required to make a report in good faith to the governmental agency overseeing such issues. State laws vary, so the nurse is advised to consult with the healthcare team and possible legal experts to protect the vulnerable. Nurses and other health professionals are referred to as mandated reporters because they are required by state law to report suspected neglect or abuse of children, adults at risk, and the elderly. Adults at risk are adults who have a physical or mental condition that impairs their ability to care for their own needs.

Right To Respectful Care

All patients have a right to dignity and respect from health care professionals. This includes respect for their beliefs, circumstances, and their basic needs. Everyone involved in that patient's care must respect those beliefs and act with caring attitudes.

Right To Informed Consent

Informed consent laws require health service providers to explain the potential risks and benefits of medical treatment as well as alternatives to treatment. Informed consent is the fundamental right of an individual to accept or reject health care. Based on the Patient Self-Determination Act, patients have the right to give informed consent before receiving medical assessment or treatment (except in emergency situations when imminent harm may occur to themselves or others). The provider must then obtain the patient's written consent before proceeding. If a provider's failure to do so harms a patient, the provider risks liability for medical malpractice. Implied consent is a variation of consent and is common in nursing. For example, if a nurse goes to a patient with a medication cup in hand and the patient indicates willingness to take the medication, implied consent has occurred. Patients should be provided with answers and clarification as needed. If a patient is confused about what is happening, the nurse should seek help from the healthcare team. Most states allow a client to sue for battery if consent is not obtained before medical treatment is given.^[18]

However, a client must be competent and have the legal capacity to give informed consent. Competency is a legal term related to the degree of cognitive ability an individual has to make decisions or carry out specific acts. Individuals are considered competent until they have been declared incompetent in a formal legal proceeding. If found incompetent, the individual is appointed a legal guardian or representative who is responsible for providing or refusing consent (while considering the individual’s wishes). Guardians are typically family members such as spouses, adult children, or parents. If family members are unavailable or unwilling to serve in this role, the court may appoint a court-trained guardian.^[19]

Capacity is a functional determination that an individual is or is not capable of making a medical decision within a given situation. It is outside the scope of practice for nurses to formally assess capacity, but nurses may initiate the evaluation of patient capacity and contribute assessment information. Capacity may be a temporary or permanent state. The following box outlines situations where the nurse may question a client’s decision-making capacity.^[20],[21]

When a patient does not have the capacity to provide informed consent, health care providers must obtain substituted consent for treatments. Substituted consent is authorization that another person gives on behalf of the patient. For example, the activation of a patient's health care power of attorney is an example of substituted consent. Substituted consent may also come from a court-appointed guardian or if state law permits, from next of kin.^[22]

Right to the Least Restrictive Environment

Patients have the right to be free from restraints or seclusion unless an emergency situation exists.

Restraints and Seclusion

Restraints are devices used in health care settings to prevent patients from causing harm to themselves or others when alternative interventions are not effective. A restraint is a device, method, or process that is used for the specific purpose of restricting a patient’s freedom of movement without the permission of the person. Restraints include mechanical devices such as a tie wrist device, chemical restraints, or seclusion. The Joint Commission defines a chemical restraint as a drug used to manage a patient’s behavior, restrict the patient’s freedom of movement, or impair the patient’s ability to appropriately interact with their surroundings that is not standard treatment or dosage for the patient’s condition.^[23] It is important to note that the definition states the medication “is not standard treatment or dosage for the patient’s condition.” For example, administering prescribed benzodiazepines as standard treatment to manage the symptoms of a diagnosed mental health disorder is not considered a chemical restraint, but administering benzodiazepines to limit a patient's movement is considered a chemical restraint.

Seclusion is defined as the confinement of a patient in a locked room or an area from which they cannot exit on their own. Seclusion should only be used for the management of violent or self-destructive behavior. Seclusion limits freedom of movement because, although the patient is not mechanically restrained, they cannot leave the area.^[24]

Although restraints are used with the intention to keep a patient safe, they impact a patient’s psychological safety and dignity and can cause additional safety issues and death. A restrained person has a natural tendency to struggle and try to remove the restraint and can fall or become fatally entangled in the restraint. Furthermore, immobility that results from the use of restraints can cause pressure injuries, contractures, and muscle loss. Restraints take a large emotional toll on the patient’s self-esteem and may cause humiliation, fear, and anger.

Restraint Guidelines

The American Nurses Association (ANA) has established evidence-based guidelines that a restraint-free environment is the standard of care. The ANA encourages the participation of nurses to reduce patient restraints and seclusion in all health care settings. Restraining or secluding patients is viewed as contrary to the goals and ethical traditions of nursing because it violates the fundamental patient rights of autonomy and dignity. However, the ANA also recognizes there are times when there is no viable option other than restraints to keep a patient safe, such as during an acute psychotic episode when patient and staff safety are in jeopardy due to aggression or assault. The ANA also states that restraints may be justified in some patients with severe dementia or delirium when they are at risk for serious injuries such as a hip fracture due to falling.^[25]

The ANA provides the following guidelines: “When restraint is necessary, documentation should be done by more than one witness. Once restrained, the patient should be treated with humane care that preserves human dignity. In those instances where restraint, seclusion, or therapeutic holding is determined to be clinically appropriate and adequately justified, registered nurses who possess the necessary knowledge and skills to effectively manage the situation must be actively involved in the assessment, implementation, and evaluation of the selected emergency measure, adhering to federal regulations and the standards of the The Joint Commission (2009) regarding appropriate use of restraints and seclusion.” Nursing documentation typically includes information such as patient behavior necessitating the restraint, alternatives to restraints that were attempted, the type of restraint used, the time it was applied, the location of the restraint, and patient education regarding the restraint.^[26]

Any health care facility that accepts Medicare and Medicaid reimbursement must follow federal guidelines for the use of behavioral restraints. These guidelines include the following^[27]:

• When a restraint is the only viable option, it must be discontinued at the earliest possible time.
• Orders for the use of seclusion or restraint can never be written as a standing order or PRN (as needed). The nurse needs to contact the provider each time.
• The treating physician must be consulted as soon as possible if the restraint or seclusion is not ordered by the patient’s treating physician.
• A physician or licensed independent practitioner must see and evaluate the need for the restraint or seclusion within one hour after the initiation.
• After restraints have been applied, the nurse should follow agency policy for frequent monitoring and regularly changing the patient’s position to prevent complications. Nurses must also ensure the patient’s basic needs (e.g., hydration, nutrition, and toileting) are met. Range of motion exercises and circulatory checks are typically provided every 15 minutes to hourly. Some agencies require a 1:1 patient sitter or continuous monitoring when restraints are applied or seclusion is implemented.
• Each written order for a physical restraint or seclusion is limited to 4 hours for adults, 2 hours for children and adolescents ages 9 to 17, or 1 hour for patients under 9. The original order may only be renewed in accordance with these limits for up to a total of 24 hours. After the original order expires, a physician or licensed independent practitioner (if allowed under state law) must see and assess the patient before issuing a new order.

Right to Continuity of Care

According to the American Medical Association, patients have the right to continuity of care. Under this patient right, providers must cooperate in coordinating with other health care professionals and not abruptly discontinue care. At in-patient mental health facilities, the patient's providers will make appropriate referrals to outpatient providers to ensure minimal disruptions in care.

Right to an Advance Directive

Patients can communicate their health care preferences through advance directives like a living will. Patients can select someone, like a family member, to make health care decisions.

A Psychiatric Advance Directive (PAD) is a legal document that describes a person’s preferences for future mental health treatment or names an individual to make treatment decisions for them if they are in a crisis and unable to make decisions. Many people with mental illness, their family members, and health professionals are not familiar with PADs.^[28]

For states that do not have laws regarding PADs, an individual can still draft a PAD under the more general statutes connected to advance health care directives and living wills. However, a PAD is more beneficial because of the unique issues of mental health care and treatment, such as medication preferences and inpatient treatment considerations and the fact that a person with mental health disorders can experience recovery and wellness over time.^[29]

Protective Placement

Guardianships and protective orders are legal methods in states for appointing an alternative decision-maker and identifying required services for individuals who are legally incompetent. Legally incompetent individuals may have developmental disabilities, chronic and serious mental illness, severe substance use disorders, or other conditions that limit their decision-making ability. A court can issue orders for a person who has a guardian to be protectively placed. The legal standard basically states that without the protective placement, the individual is so incapable of providing for their own care and well-being that it creates a substantial risk of serious harm to themselves or others. Protective services may include case management, in-home care, nursing services, adult day care, or inpatient treatment. Protective placements must be the least restrictive setting necessary to meet the individual's needs and must be reviewed annually by the court.