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SEVEN. SURVIVING

What are my rights to refuse hospitalization?

First, it is important to be aware that the right to refuse hospitalization varies from state to state. However, most states have fairly similar criteria for involuntary hospitalization or what is also known as civil commitment. Such criteria are that a mental illness is present and that the person is imminently dangerous to self or others. The criteria may differ from state to state primarily on the length of stay allowed before court review and on minor procedural differences. There may also be differences as to whether inclusion of "grave disability" can be added as an additional criterion when deciding to hospitalize an individual involuntarily. Some states do not allow for this. Grave disability means that an individual is so disabled by a mental illness that he or she is in imminent danger. For example, an individual with severe diabetes who has stopped taking insulin because of severe depression is considered in grave danger of developing a diabetic coma.

The right to refuse hospitalization can be baffling to family members who see deterioration in a loved one. It is important to have some historical background to understand the basis of one's rights to refuse hospitalization. Involuntary commitment to a psychiatric hospital was first based on the legal term parens patriae (Latin for "parent of his country"). Under this doctrine the state or government, as represented by a physician, acted as the "parent" for the mentally ill individual and could commit him or her to a psychiatric facility merely based on the opinion that the patient was in need of such care. A landmark 1973 case, Lessard vs. Schmidt, in Wisconsin changed this law. Lessard, the plaintiff, was involuntarily committed and argued successfully that her rights were violated because of that commitment. First, she argued that the grounds on which she was committed, the parens patriae law, was overly vague by defining a mentally ill individual as one who requires care and treatment for his or her own welfare or for the welfare of others in the community. Second, she argued that the procedure used to commit her violated her civil rights by denying her due process. The court agreed on both counts, arguing that the patient had all the rights accorded to a criminal suspect. As a result of this case, parens patriae was replaced by the requirement that an individual meet the criteria of being both mentally ill and imminently dangerous to be involuntary committed. The courts hoped to decrease the number of admissions to psychiatric hospitals by defining the commitment standards more narrowly, because they considered such action as potentially more damaging than the risks to the individual and community by not committing them.

Expressing suicidal or homicidal feelings does not automatically mandate immediate hospitalization. Consideration is given to what is said, how it is said, and to whom it is said. The less the clinician knows the patient, the more careful that clinician will be in asking further questions or in referring the patient to an emergency room to be evaluated for hospitalization. Nothing regarding safety is taken lightly under these circumstances, even if one is expressing his or her feelings in a way that he or she believes is figurative and not literal. It is important to have a strong, trusting relationship with one's treating clinician where all options for treatment can be discussed openly and freely without fear. Under those circumstances, hospitalization may be raised as an option among many others for thorough discussion. The clinician should be able to describe parameters for when hospitalization is considered an absolute necessity. The clinician may ask for outside supports such as family members to be more involved to avoid hospitalization. In fact, an adequate support system is one of the single most critical factors in maintaining safety and avoiding hospitalization.

If hospitalized involuntarily, options are also available for patients to appeal the commitment. The right to due process and legal representation is maintained. Depending on the state, this may include a court-appointed attorney or a legal advocate. Usually, a specific time limit is set by the state within which a patient has a legal right to have a hearing before a judge to request release from the hospital. Hospitals are also required to post a patient's "bill of rights" and to hand them out to every patient. Even when involuntarily committed, patients continue to have the right to refuse treatment and cannot be medicated without consent unless a clear and immediate danger toward self or others is evident. This is typically a one-time dose of a short-acting medication to help calm the patient and is also known legally as a chemical restraint. Physical restraint or seclusion may also be applied to prevent a patient from harming one's self or others. Specific requirements are mandated by the federal government regarding the application of such restraints, including appropriate monitoring and documentation of restraint usage, and specific time limits within which reevaluation by a physician is required.

 
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