PUBLICATIONS |
Jennifer Honig, Attorney
The above statute, which is commonly known as section 12 and which provides the legal basis for a section 12 order or a pink paper, has been used extensively in Massachusetts to initiate involuntary hospitalization of individuals perceived to be dangerous by virtue of mental illness. Many of the persons admitted pursuant to section 12 have described their experiences as unnecessary, confounding, and traumatic. While these accounts have always deserved our careful attention, the First Circuit's February decision in McCabe v. Life-Line Ambulance Service, Inc.(1) should renew our scrutiny of the section 12 statute and its implementation. In McCabe, the police, with a section 12 order in hand, forcibly entered the home of an elderly woman and carried her down the stairs to the waiting ambulance. In the process, the woman experienced cardiac arrest and died. While McCabe has focused on the legality of the police entry into the woman's home, the facts provide a potent example of the consequences of executing a pink paper. The following four accounts provide further reminder of the need to use section 12 admissions cautiously.(2) RIPPED AWAY Dorothy Dorothy's husband had simply said that they were going to visit their daughter's friend. Instead, the car approached a private hospital in the Boston suburbs. When her husband and daughter told Dorothy that they thought she was having a breakdown, Dorothy, in her mid fifties, disagreed and practically had to be dragged into the building. Monica The 10:00 p.m. October visit to Monica's central Massachusetts house was the second of the day for the police department. Monica had called them because she thought she needed a restraining order against her husband, whom the police had removed earlier. The two officers gave Monica a funny look when she admitted he had never been physically violent. Nonetheless, with Monica's revelation that her husband kept licensed firearms, skepticism gave way to a full search of the house, upstairs and down. Tracking in dirt and frightening her baby and five-year-old daughter, the officers upset Monica -- and she told them so. However, the courage to ask them to leave only came to Monica when one officer began going through her lingerie. Her request was met with the observation that her concern with dirt and her cracked, over-washed hands suggested paranoia. Speaking on the phone with the judge handling the restraining order, one officer commented, as if Monica were not there, that he thought she needed to be "pink papered." When the officers told Monica they were taking her to the hospital, she did not fully comprehend the extent of their authority. When they refused to wait 45 minutes for the baby sitter to arrive, however, she began to understand. However, it was only when she was not allowed to use the bathroom before leaving that Monica became alarmed that her basic rights were being denied and demanded an attorney. The second officer, whose earlier silence Monica had taken for sympathy, grabbed the phone away from her, pushed his face close, and announced: I don't put up with this shit -- not even from my wife. The paddy wagon arrived and Monica was pulled from a desperate call to a 911 operator. As the two officers and a reluctant newcomer lifted and flipped her onto her stomach, Monica, dressed only in sweats, felt vulnerable. Handcuffed so tightly she would later be diagnosed with carpal tunnel syndrome, Monica was dragged barefoot outside. She rode on the cold metal seat to the hospital. Leslie The nurse had badgered her to discuss with the group an issue, by then moot, and Leslie had refused. When, later in the session, a patient rekindled the subject, Leslie pulled her legs under her and withdrew from the conversation. The session ended and Leslie felt unable to attend the next one. The program director, a psychologist, was running the next group. She asked Leslie to wait in the lobby. Once there, Leslie began to feel better. She chatted intermittently with the receptionist. Sensing her discharge from the day program, she tried to say good-bye to a supportive staff person. Finally, after Leslie had waited through one session and lunch, the program director appeared: "We are trying to decide what to do." She left without asking Leslie's opinion. Leslie sensed that they were planning her discharge from the program; she felt a bit relieved. When the nurse and the program director together returned later, they told Leslie that they were thinking of putting her in a hospital. There was no discussion. Leslie was escorted to the program psychiatrist, whom she had seen for a few 15-20 minute sessions. He elicited her opinion on the proposed admission. Leslie's initial response was that her opinion seemed to matter least, but the psychiatrist's invitation to "try me" encouraged her. She explained that she did not meet the standard for a section 12 and that she had appointments both that afternoon and evening with her regular psychiatrists. The psychiatrist then confirmed Leslie's first instinct, observing that everyone else thought she needed hospitalization. As the doctor wrote out the section 12, Leslie asked to make a call. The psychiatrist replied that there was no time. When she reached for the phone anyhow, the psychiatrist's eyes turned cold and he snapped at her. She withdrew her hand. Leslie had intended to call a friend to tell her about the section 12 and to see if the friend could find Leslie some legal assistance. Sarah In the spring of 1995, Sarah was faced with a series of unexpected, stressful events. After an unusually frustrating day, she called her private psychiatrist of five years. Over the previous year, Sarah had begun to sense what she describes as a subtle undercurrent of "mutual impatience" between them. She had consulted other specialists, but continued to see him. Sarah needed a word of encouragement that evening. Instead, her doctor sounded annoyed and went on at length that Sarah's "problem was that she was looking for support from all the wrong people." He observed that she did not sound depressed, which she confirmed. He repeated his assessment of her problem and ended the conversation with a terse, "OK? Good-bye." The next day, Sarah called her doctor again, irritated by his dismissive reaction to her the day before. He offered to see her between 3:30 and 4:00 that afternoon. Sarah was crying and emotionally exhausted when she arrived at her psychiatrist's office. He appeared at 3:45 and made it clear he had to be somewhere at 4:00. Sarah lamented, This medication isn't doing it for me. She added, "How much longer do I have to live like this? Two more years? Twenty? If my life is going to end in suicide, I might as well get it over with." Her doctor responded coldly, "I didn't ask you to come here for you to be sarcastic." Sarah was not being sarcastic, but she wasn't suicidal either. Her comment was simply a dramatic expression of her impatience with the status quo. They had a brief discussion with no further mention of suicide by either. As the hour drew near, her psychiatrist told her to tell him if she had anything else to say and reiterated that he had a 4:00 appointment. Sarah was at a loss for words. He asked impatiently, "What exactly did you come here for today? What exactly did you expect me to do for you?" Reflecting upon his lack of compassion, Sarah silently resolved to find a new psychiatrist. Quietly and calmly, she stood to leave his office. As she pulled the door open, the doctor abruptly swiveled around in his chair and closed the door with his foot. Sarah went to open the door again. With more force this time, the psychiatrist slammed the door and threatened: "If you try to leave here again, I'm going to call security." Frightened by his inexplicable behavior, Sarah pleaded with him to let her go. Her psychiatrist telephoned security and indicated that he was "section 12ing her." She asked him what a section 12 was and he stated, "I'm committing you to [a private psychiatric hospital]." Stunned, she asked why. Hesitating, he said that she posed a danger to herself. Sarah had no prior history of self-destructive behavior, self-harm, or suicidality. PROCESSED Dorothy At the hospital, Dorothy was handed some papers to sign. Without her reading glasses, she trusted that she was being billed for a routine check-up. Dorothy was taken to a partitioned area in the emergency room and instructed to lie down on a cot and remain there. Meanwhile, her husband went elsewhere to explain why he had brought his wife in. After a long wait, staff asked Dorothy a few questions and had her sign some more papers. She was told these were about meals, but Dorothy thinks they provided for her admission.(3) Monica When Monica arrived at the emergency ward triage, it was about one in the morning. She hoped that, after listening to her, the hospital staff would realize that her admission was the mistake of a pair of overworked, sleep-deprived police officers. A nurse sat with Monica while she filled out a form. She explained to him that her hands were cracked from gardening and diaper changing. Their conversation was interrupted by a change of shift. Monica waited. When a psychiatrist finally came in, he was rude, and Monica, feeling uncomfortable, rambled. While Monica had been composed in her meeting with the nurse, the doctor documented that it took her two hours to calm down. Monica then requested a female psychiatrist to see her, but this psychiatrist was also rude and Monica grew unnerved. The female psychiatrist announced that, if Monica could not be quiet, she would leave. Monica was unable to be quiet and the psychiatrist walked out. The meeting had lasted under ten minutes.(4) At about 3 a.m., Monica was brought to a bedroom on a locked psychiatric ward, but the florescent lights and her worries about her children kept her awake. Because the ward had no open beds, Monica was transferred the next morning to another psychiatric hospital covered by her insurance, this one an hour from home. (5) If Monica had been informed of this transfer, she would have paid out of her pocket to be closer to home and her nursing baby, but she was only informed of the transfer as it occurred. Leslie Leslie's records in hand, the program director walked her from the day program to an inpatient unit in the next building. Two nurses searched Leslie, asking her to remove her bra, socks, and shoes, and to lower her underwear. Then, despite Leslie's insistence that they search her purse and tote bags in her presence, the nurses removed these belongings to the nurses' station. After dressing, Leslie followed them to the station to witness the search, but the door was closed in her face.(6) Sarah Shocked and outraged, Sarah tearfully tried to reason with her psychiatrist while waiting for security to arrive. He ignored her protests silently. Because the psychiatrist's office was located in a hospital, security came quickly. The psychiatrist and four guards escorted Sarah to the emergency ward. Sarah's psychiatrist told the intake nurse that she was suicidal and needed to be admitted pursuant to section 12. Sarah did not see her psychiatrist again, although she continually requested to be allowed to be put in contact with him. Sarah was turned over to a first-year psychiatry resident. He refused to listen to her and did not explain what was happening. The resident ordered Sarah to undress or do it the hard way. Her clothing replaced with a hospital gown, she was placed alone in a locked seclusion room where she spent the next four hours.(7) During this time, she was offered neither food nor water, although she was offered Ativan, an anti-anxiety medication, which she declined. At one point, she knocked on the door for 45 minutes begging to be taken to the bathroom, but no one would even look at her. During her stay on the emergency ward, the resident never interviewed Sarah regarding her clinical condition, despite the fact that such an exam was required both by state law and hospital policy.(8) Four hours after her arrival on the ward, the resident finally presented himself to conduct a physical exam of Sarah. His rudeness prompted her to request an exam with someone else.(9) "There isn't anyone else." he said. Sarah asked to speak with his attending physician, but he said there was none. When Sarah persisted, the resident summoned security and told them she was being hostile and uncooperative. Security ordered her to consent to the exam or, repeating an apparently popular admonition, "or do it the hard way."(10) LOCKED IN Dorothy Finding herself in a patient room on a locked psychiatric unit, Dorothy began to cry. While her roommate was trying to calm her down, staff entered the room to draw Dorothy's blood. Dorothy was never asked if she wanted the tests or told of their purpose.(11) Monica Arriving at the second psychiatric facility the next morning, Monica was so exhausted that she could no longer worry about her children. She was taken by a female nurse and a male doctor to what seemed like a tiny triangular linen closet, complete with mops and pails, for a physical. When the doctor wanted to examine her breasts, Monica told him, "no way."(12) Monica only got through this experience by telling herself repeatedly: "This is a nightmare and I'm going to wake up." At the end of the first day, a doctor came in and told her she was staying the night. Leslie That afternoon, Leslie wrote a statement explaining why the section 12 was not legitimate and asked that it be placed in her medical record. She was told that no one was interested in her statement and that they would not add it to the record.(13) At 8:00 p.m., the psychiatrist whom Leslie had specially requested came to see her. He listened carefully to her story. Leslie thought she was an accurate reporter; she had never lied about her suicidality. The psychiatrist told her that he believed her assessment, but that he was tired and needed until the next day to review her case with the day program psychiatrist. Sarah At about 8:30 p.m., Sarah was finally removed from seclusion -- to be transferred to a private psychiatric hospital.(14) With more than two dozen people watching, Sarah was coaxed onto a stretcher and then rushed by the ambulance crew and several security guards. Her wrists were tightly bound, and she was carried to the ambulance. Arriving at the psychiatric hospital just after 9:00 p.m., Sarah said to the intake staff: "My doctor has made a big, big mistake. I am not suicidal and never have been. Tell me exactly what I have to do to prove it so I can get out of here." She was immediately asked to undress and was placed face down on a low mattress, spread eagle in four-point restraint. She lay still and silent. After one hour, staff removed the restraints.(15) She underwent an extensive intake, was given the option of signing into the hospital as a conditional voluntary patient (16) and was placed on a locked ward some time after midnight. TREATED Dorothy When Dorothy arrived on the ward, she quickly learned that she would have no input into her treatment. Staff told her not to talk to anyone and to stay in her room. Several days later, she was instructed to attend group therapy. When she stated that she did not want to go, she was told that she must attend if she wanted to be discharged.(17) Dorothy recalls that she was handed so much medication, she was falling down." She was not informed of the purpose of the medication, but was merely told to take it. On the one occasion when Dorothy tried to refuse, the nurse stood over her until she finally swallowed it.(18) The medications made Dorothy feel sick and headachy and caused her to gain weight. Her reaction to one drug was more severe, resulting in a paralyzing stiffness in her head and shoulders. After three weeks, Dorothy was discharged. The discharge note indicated that she was denying hallucinations, suicidal and homicidal ideations, and was threatening to leave. Staff further noted that the medications administered at the hospital had helped control her paranoia. Monica On the ward, Monica felt completely out of sync. She slept days, stayed awake nights, and was denied permission to go outside. She believed that staff considered her behavior odd. For instance, when a male patient in the cafeteria had a bizarre outburst, Monica hid behind the nurse's station with the retreating nurses. The nurses extricated and medicated her. When she refused to allow staff to take blood from her arm, half a dozen staff mechanically restrained her.(19) She escaped from the mechanical restraints and was chemically restrained with Ativan.(20) She was groggy for 48 hours. She refused all treatment with psychiatric medications. After several days, a staff member told Monica that, if she signed herself in, she could sign herself out.(21) Thinking that such a sequence of actions would seem irrational, Monica waited a couple of days before finally pursuing this course. In response to her three-day notice, the psychiatrist recommended a two-week stay and medication. Monica requested an independent psychological review and was seen by the Director of Psychological Services. They clicked. Monica was released 24 hours later. She had been at the hospital ten days. Leslie The next day, the unit psychiatrist reported to Leslie that the day program staff, believing that she might become suicidal upon discharge from the program, had recommended the section 12. Leslie thought that plan was ironic since she had earlier sensed an impending discharge and had felt somewhat relieved at the prospect. The psychiatrist explained that, while he was willing to discharge Leslie, given how upset she was over her section 12 experience, he suggested staying for a few days to discuss the matter with him. Leslie trusted this psychiatrist and wanted to work with him. Because he did not have an outpatient practice, she accepted his offer and signed in as a conditional voluntary patient.(22) About two weeks later, she went home. Sarah The next day, Sarah's psychiatrist came to see her at the private hospital. He apologized and admitted that the section 12 might have been a poor decision. Although Sarah was at the hospital on a conditional voluntary basis, she was released 2O days later. Her discharge summary states: "The patient was cooperative throughout hospitalization and compliant with treatment. She was not considered a risk of harm to herself or others, and was discharged outright . . .." A simple $11 psychiatric visit had burgeoned into an unnecessary $5000 inpatient stay. RECOVERY/EPILOGUE Dorothy Dorothy discontinued the medication as soon as she left the hospital. However, she did return to the hospital to request the help of an outpatient therapist in straightening out the lies about her by inpatient staff. Additionally, Dorothy sought a copy of her hospital record, but received only one document.(23) She was told that the record would only be provided to an attorney. Her doctor explained that it would be a waste of time to send the record to her because she would not understand it. Dorothy is now pursuing her records request through the Department of Mental Health, which licenses the hospital. Monica After her discharge, Monica would periodically wake up at night in a cold sweat. Three and a half- years later, she still gets upset. "Part of me is angry and part just anxious that someone could come into my house and take me away . . . You don't realize the little basic things that we take for granted." Troubled with her treatment and the prospect of an inaccurate psychiatric record, Monica met with hospital staff. "You're nothing like you were that night," commented the female psychiatrist, who seemed only at this late moment to grasp the stress of being pulled from one's home and children. Monica also asked the nurse with whom she had talked upon her arrival at the hospital to add documentation to her record about her calm demeanor in their meeting.(24) He was willing to add his recollections, but was not allowed to do so. Monica tried unsuccessfully to find an attorney who would help her sue regarding the section 12. Monica was left with pursuing the police conduct through the department's internal affairs unit. Citing the irrationality of calling them and then asking them to leave, the two officers involved denied her allegations. Her claim was not substantiated. The internal affairs officer pointed out that Monica had been in the hospital so long that the section 12 seemed justified. Leslie Beginning with a letter to the hospital's human rights officer about the search of her purse and bags, Leslie formally complained about her admission and treatment. In mid-May, Leslie wrote to the hospital's Medical Director, whose response supported the admission decision (while noting that hospital policy provides for the patient's presence during initial searches of belongings unless clinically contraindicated). At the end of May, Leslie began a series of letters and contacts with DMH. A November response promised a review of the admission during the hospital's licensing survey approximately three months later. In April, about five months later, Leslie received a letter regarding the now-completed licensing survey. DMH concluded, based on their review of Leslie's record and discussion with "appropriate parties", that there was "nothing that would allow for further licensing action in regard to [her] concerns." Sarah Sarah's flashbacks and nightmares usually start with her psychiatrist abruptly stretching out his leg to prevent her from leaving his office and always include her most vivid memory of the ordeal: as if she were someone else, she hovers above her almost-naked body, cuffed in four-point restraint. "It just intrudes on its own . . . asleep or awake . . . . What can I do when I'm sleeping and I start reliving the episode, talking and crying in my sleep so loudly that I wake myself up?" Sarah explains that her fury about the abuse she experienced is compounded by her knowledge that the admission was unwarranted. Sarah terminated the services of her psychiatrist. She filed a complaint against the emergency ward resident with the Board of Registration in Medicine, and the Board decided to place her complaint in his permanent file. Sarah has sought redress for her treatment on the emergency ward through a detailed and ongoing correspondence with the ward's director. She also filed a complaint jointly with DMH and the Disabled Persons Protection Commission. Believing that the investigator assigned to the case did not review all the available material, she appealed the case and it is pending. While Sarah seeks vindication through these formal channels, she realizes that she cannot avoid the stigma of being the subject of a section 12. "It's already had devastating consequences on every aspect of my life. As hard as I try to pick up the pieces, it hangs over my head constantly. Only time will tell how and when this nightmare comes back to haunt me." CONCLUSION Mass. Gen. L. ch. 123, ß 12(a) establishes a legal standard for the level of danger necessary prior to issuing a section 12. As these four accounts have demonstrated, that standard -- "that failure to hospitalize such person would create a likelihood of serious harm by reason of mental illness" -- is vague, and clinicians and police have considerable leeway in interpreting it. Further, while a clinical examination is required prior to the writing of a section 12 when possible(25) and, in certain cases, again upon reception at a facility,(26) neither statute nor regulation provides any elaboration as to the extent of the examination. Nor is there any guidance as to the extent to which the person authorizing the section 12 may rely on other sources of information, such as family members. Each of the four cases presented here reveals the license available in interpreting the statute. It appears that Dorothy signed into the hospital as a conditional voluntary admission (although hospital staff may well have completed a section 12 application if she had refused to sign). For the hospital to accept Dorothy's application, the superintendent had to believe that she was in need of care and treatment which they could provide, as required by Mass. Gen. L. ch. 123, ß 10. If Dorothy had refused to sign in voluntarily, a hospital staff person qualified to issue a section 12 might have relied upon her husband's description of her behavior to conclude that she presented a danger to herself. Monica was pink papered by the police officers, an action which required that the officers believed that she met the above-cited section 12 standard. A police officer is not required to conduct an exam, and may do the section 12 only if none of the clinicians with authority to write the pink paper is available and the officer believes that the standard has been met. In Monica's case, the police thought the standard for section 12 was met after concluding that Monica was dangerous to herself by virtue of irrationality. Apparently, they equated their assumptions that Monica engaged in compulsive cleaning and held paranoid fears with evidence of mental illness. Because Monica's section 12 was issued by the police, upon reception at the facility she was entitled to a clinical examination to determine appropriateness for admission. Monica's brief and unpleasant interview with the psychiatrist may have been the examination required by Mass. Gen. L. ch. 123, ß 12(b). Leslie was pink papered by a psychiatrist, on the advice of two of her group clinicians, the nurse and the program director. Like the police, the psychiatrist must also have believed that a failure to hospitalize would create a likelihood of serious harm by reason of mental illness. The brief conversation which Leslie had with her psychiatrist prior to his writing the section 12 appears to have constituted the examination required by Mass. Gen. L. ch. 123, ß 12(a), absent either an emergency or a refusal by the patient. Leslie's group leaders appear to have convinced her psychiatrist that she might harm herself if discharged from the group. Although this assumption was speculative and refuted by the patient herself, the psychiatrist apparently concluded that this information outweighed Leslie's own assertions about her condition. Because the program psychiatrist was a designated physician, Leslie was not automatically entitled by statute or regulation to an examination upon reception at the hospital. Leslie met with a psychiatrist a number of hours after admission. Sarah's psychiatrist must have concluded that she met this same standard of likelihood of serious harm. As in Leslie's case, Sarah's psychiatrist had a brief session with her prior to deciding to pursue a section 12. Sarah notes that even if her psychiatrist had reason to be concerned for her safety, neither he nor the resident who actually wrote the section 12 attempted any risk assessment, proposed or tried less restrictive alternatives, or gave Sarah the opportunity to address the concern that she posed a danger. Sarah made strenuous attempts to be heard and reassessed during her stay on the emergency ward, believing that she could convince the staff that there was no need for a section 12. However, because she received neither the required clinical assessment nor a break from seclusion to speak with staff, she never had this chance. Only after interviewing the four women presented in this article did it become apparent that they shared an exceptional quality. Each has had the courage both to challenge, through various formal channels, the appropriateness of her hospital admission and to share her story with the public. Such self-revelation is difficult and has not been possible for many other ex-patients, and it is hoped that their openness will benefit others who have been or will be forced to confront similar situations. ENDNOTES (1) 77 F. 3d 540 (1st Cir. 1996), rev'g sub nom. McCabe v. City of Lynn, 875 F.Supp. 53 (D.Mass. 1995). [See update on this case in this issue.] Back (2) The names of the four women discussed in this article have been changed. Back (3) If Dorothy was presented with the opportunity to sign in as a conditional voluntary patient, the superintendent of the hospital was obligated to afford her the chance to consult with an attorney before signing. Mass. Gen. L. ch. 123, ß 10(a). Back (4) When an application pursuant to Mass. Gen. L. ch. 123, ß 12 has been made by someone other than a designated physician (as defined by Department of Mental Health (DMH) regulation 104 CMR 3.07(3)(b)), such as by a police officer, the admitted person must be given a psychiatric examination by a designated physician immediately after his or her reception at the facility. Admittance thereafter may occur only if the designated physician corroborates that the person meets the section 12 standard, namely, that failure to hospitalize would create a likelihood of serious harm by reason of mental illness. Mass. Gen. L. ch. 123, ß 12(b). Back (5) Six days notice to the patient is required before DMH may transfer a patient from one public or private facility to another absent an emergency. Mass. Gen. L. ch. 123, ß 3. Arguably, the corresponding DMH regulation would have necessitated notice prior to Monica's transfer from the locked ward had she been held at a DMH-licensed facility. 104 CMR 3.13(4)(b). Back (6) Neither the statute governing emergency admissions to a psychiatric facility nor corresponding DMH regulations specifically address the appropriateness or manner of searches of a inpatient's person or belongings. However, patients of facilities licensed by DMH and the Department of Public Health (DPH), which would include the facility holding Leslie, have the right to privacy during medical treatment or other rendering of care within the capacity of the facility. Mass. Gen. L. ch. 111, ß 70E. Further, DMH policy, potentially applicable to the facility at which Leslie was held if the facility so chose, explicitly states that "[a]ll patients have the right not to be subjected to unreasonable searches and seizures." Policy 95-5, Patient Rights & Responsibilities, III.F.13. (Sept. 11, 1995). Back (7) Sarah's containment constituted restraint as defined in Massachusetts law and DMH regulation. Mass. Gen. L. ch. 123, ß 1 defines restraint as including confinement in a place of seclusion other than the placement of an inpatient or resident in his room for the night, or any other means which unreasonably limit freedom of movement." The DMH regulation regarding restraint, which further defines the type of restraint known as seclusion, states that "seclusion occurs whenever a patient is isolated by being placed alone in a room and confined such that any attempt by the patient to leave the room will, or it is reasonably believed by the patient that it will, be blocked by a lock, other mechanical device, or staff." 104 CMR3.12(3)(e)3.a. Although Sarah's confinement constituted seclusion, it is unclear if the use of this intervention was justified. The statute states that restraint, including seclusion, "may only be used in cases of emergency, such as the occurrence of, or serious threat of, extreme violence, personal injury, or attempted suicide . . ." Mass. Gen. L. ch. 123, ß 21. Back (8) Sarah's section 12 order was ultimately signed not by her private psychiatrist, but by the psychiatry resident of the emergency ward (presumably, acting under the authority of a fully-licensed psychiatrist). The resident appears not to have satisfied the statutory requirement of conducting a clinical examination. See discussion of the responsibility of a designated physician, supra note 4. The resident appears also to have breached a requirement of the emergency ward's triage policy that a focused, 10-15 minute interview with a patient be undertaken upon admission. Back (9) A patient of a facility licensed by DMH or DPH has the right "to refuse to be examined, observed, or treated by students or any other facility staff without jeopardizing access to psychiatric, psychological, or other medical care and attention." The statute further provides that such a patient has a right to freedom of choice in his selection of a facility, or a physician or health service mode, except in the case of emergency medical treatment or as otherwise provided for by contract . . . provided, however, that the physician, facility, or health service mode is able to accommodate the patient exercising such right of choice." Mass. Gen. L. ch. 111, ß 70E. Back (10) While patients who have been hospitalized pursuant to a section 12 by someone other than a designated physician receive an examination upon reception at the facility by a designated physician (see discussion of examination upon reception at a facility, supra note 4), this examination is, pursuant to statute, a psychiatric and not a physical one. Further, Massachusetts law requires that patients of facilities licensed by DMH or DPH have the right "to informed consent to the extent provided by law." Id.; see also Harnish v. Children's Hospital, 387 Mass. 152 (1982). In order to exercise informed consent, the person providing consent must be told and have the capacity to adequately understand certain information, including the existence of the right to accept or refuse the proposed treatment. Harnish, 387 Mass. at 156. Back (11) See discussion of the right to informed consent, supra note 10. Back (12) See discussion of physical versus psychiatric examinations, supra note 10. Back (13) While a patient may not delete information in a psychiatric record, in certain cases he or she may add information to amend a record. Under Massachusetts law, certain holders of personal data, such as executive branch agencies (including DMH) and facilities with contracts or arrangements with one of these agencies, must allow patients to correct or amend their records when the patient so requests. If the holder and the patient disagree as to whether a change should be made, the holder must ensure that the patient's claim is noted and included as part of the patient's record and included in any subsequent disclosure or dissemination of the record. Mass. Gen. L. ch. 66A, ßß 1, 2(j)(2). Further, facilities and programs operated, funded or licensed by DMH must allow for information to be added to an individual's record. These facilities and programs are required to include in the individual's record, among other information, "any other information deemed necessary and significant to the care and treatment of the patient." 104 CMR 3.19(3)(r). Thus, individuals may amend their record with information which falls into this category. The hospital at which Leslie was confined was licensed by DMH to provide psychiatric care. Back (14) See discussion of rights regarding transfer, supra note 5. Back (15) The restrictions upon Sarah during travel to and upon arrival at the second hospital constitute mechanical restraint as defined by Mass. Gen. L. ch. 123, ß 1 and 104 CMR 3.12(3)(i)1. As in the case of Sarah's seclusion at the first facility, it is unclear if Sarah met the standard for mechanical restraint. See discussion of standard for restraint, supra note 7. Further, Massachusetts law explicitly addresses transfers of psychiatric patients: "Any person who transports a mentally ill person to or from a facility for any purpose authorized under this chapter shall not use any restraint which is unnecessary for the safety of the person being transported or other persons likely to come in contact with him." Mass. Gen. L. ch. 123, ß 21. Back (16) Once a person has been admitted pursuant to Mass. Gen. L. ch. 123, ß 12, he or she, if age sixteen or older, or a guardian who has the authority to admit has the right to make an application to remain at the facility on a voluntary basis. Id. ß 12(c). The facility may retain such a person if the superintendent concludes that the person is in need of care and treatment and the facility can provide such services. Id. ß 10. A person admitted under this section of the law is deemed to be a conditional voluntary patient. A person retained at a facility as a conditional voluntary patient has the right, at any time, to give three days written notice of his or her intention to leave. This notice, called a three-day paper, does not guarantee the person the right to leave. The facility may retain such person beyond the three days if the superintendent files with the district court a petition for the commitment of the person to the facility. Id. ß 11. During this intake process, Sarah was not informed of her rights regarding executing a three-day notice. Back (17) See discussion of informed consent, supra note 10. Back (18) See discussion of informed consent, supra note 10. Back (19) See discussion of informed consent, supra note 10. Back (20) See discussion of standard for placing a person in restraint, supra note 7. Back (21) See discussion of conditional voluntary admission and three-day notice, supra note 16. Back (22) See discussion of conditional voluntary admission, supra notes 3, 16. Back (23) Dorothy was treated at a hospital licensed by DMH. DMH takes the position that persons have a right, pursuant to Mass. Gen. L. ch. 123, ß 36 and the corresponding regulations, to their psychiatric records from DMH-licensed inpatient psychiatric facilities. Pursuant to these sources of legal authority, a person may have a copy of his or her entire record when it is in the person's "best interest" to acquire it. DMH regulations define the following as situations when it is in an individual's best interest to access the record: (1) the individual, or someone on his or her behalf, is pursuing a lawsuit or other legal action, is trying to enforce a right, or is defending himself or herself against legal action; (2) the individual will be treated by a different professional from his or her current treater; (3) the individual can use the record to ensure that his or her civil rights are protected; or (4) the individual needs the record in order to obtain third-party payment for services. 104 CMR 2.07(3)(c). Back (24) See discussion of amending a psychiatric record, supra note 13. 25 Mass. Gen. L. ch. 123, ß 12(a). 26 Id. ß 12(b). See discussion of examination upon reception at a facility, supra note 4. Back (25) Mass. Gen. L. ch. 123, ß 12(a) Back (26) Id. ß 12(b). See discussion of examination upon reception at a facility, supra note 4. Back |