How to Challenge a 72 Hour Psych Hold
F REQUENTLY
A SKED
Q UESTIONS
OUR PHILOSOPHY AND APPROACH
What is The Gage Law Firm's view of mental health challenges?
Our view has changed dramatically over the course of close to two decades of practice, and is rooted both in personal experience with mental health challenges, as well as interaction with hundreds and hundreds of clients who wrestle with these challenges in their daily lives.
There are commonalities amongst all of our clients, and one that is virtually without exception is that they are ALL highly intelligent people. Almost all of them have a unique capacity for empathy, even if it is not effectively utilized when they are symptomatic. And many of them are very creatively inclined (writing, music, art, poetry, photography), particularly those who wrestle with mood challenges like Bipolar Disorder or Schizoaffective Disorder.
When these commonalities are acknowledged, it's much harder to view these individuals as having diseased or "broken" minds, as much of mainstream psychiatry might seem to suggest. To the contrary, it speaks to vast, untapped potential in each of these minds, magnifying the responsibility of each individual to understand who his or her mind operates, beyond an applied diagnostic label from the DSM V. The more our clients are able to do the work to both understand and control the mental tools they wield, the more they tap this unrealized potential and are ultimately able to pursue any dreams they might have. This is, in our view, accomplished by employing a clinical treatment team of both a psychiatrist and therapist who can find the combination of education and pharmaceutical intervention, if necessary, to achieve success.
It's a far more motivating approach and message than to suggest, without meaningful proof, that our clients are somehow lesser than the rest of us and need to "get fixed." It doesn't diminish the importance of what they need to be doing, but it also encourages engagement in treatment beyond pharmaceuticals and finding providers who will foster building a foundation that is sustainable, where a pill alone is not.
Will getting on medications fix our clients' legal problems?
No, not by itself, and for a variety of reasons. First, medications may address symptoms of a mental health challenge, but they do nothing, by themselves, to generate knowledge as to how one's mind works. they provide traction--an anchor--for engaging in this level of mental education with a therapist, and without them many would be unlikely to find success in that endeavor. But the therapy itself is most important, in our view, in finding sustainable management of these challenges.
Secondly, we are still in the nascent stages of both understanding and effectiveness when it comes to psychotropic medications. In many, if not most, cases, researchers don't even really understand fully how they work, whether it's antipsychotic medications, mood stabilizers, or the various antidepressants, such as selective seratonin reuptake inhibitors (SSRIs) or tricyclic antidepressants. In part, that's because researchers don't fully understand the conditions themselves.
The result of this is that, in many cases, these medications do more than simply address the offending symptoms and just don't feel good to those who may need to take them. This is not idle speculation; our clients have told us, over and over again, how these medications are in many ways a concession they must make just to operate in society. And if they must make this concession now, they must also recognize that at some point, they may not want to anymore. That's why we feel it is critical to build the strongest treatment structure one can build so that these issues can be properly addressed as they arise. This is the only way, we feel, our clients can be confident they won't come back into the legal system down the road: avoiding crises that come from an inadequately developed understanding of one's mind.
1013/HOSPITALIZATION
My loved one has been hospitalized involuntarily and I want him out. What can you do to help?
It depends. Our ability to get involved (or whether we are willing to take on representation) depends on a variety of things, both on our end and with respect to the current circumstances of your loved one's hospitalization. Generally speaking, Georgia law gives the combined forces of ERs and crisis stabilization units (CSUs) about a week, all things static, to treat a person who they believe meets criteria for involuntary civil commitment under the parameters of O.C.G.A. §37-3-1. That means if you are contacting us after your loved one has already been hospitalized for four or five days, there's little we can do to speed things along that wouldn't happen without our involvement after a day or so.We will not accept fees or a retainer to initiate representation for a case like this. It's not worth it for you or your loved one, nor is it fair for us to get involved and get paid in a case in which our assistance wouldn't dramatically change the course of events.
In cases where we are contacted early on in the course of hospitalization, we can help to keep pressure on the hospital to justify continued commitment, to help exercise rights to transfer or requests for discharge that start various statutory clocks running, and to provide guidance to family during these stressful times. In many cases, some of the most appreciated aspects of our involvement come from simply being able to get into the hospital and work to bring some sense of peace of mind to the patient/client. All of this assistance, however, requires us to have an existing schedule at the time that can accommodate the requirements of setting everything aside, traveling to the hospital, and staying heavily involved over the course of 24-48 hours or more. This is not always possible.
Why offer these services if you can't, or won't, always get involved?
I have debated this very question myself for years. The reality is, though, that there are very few private attorneys in this state who offer these kinds of services, so I feel the need to offer whatever resources I'm able to accommodate. But, I do so with a great deal of caution, as we receive multiple callsa day asking for help in hospital commitment cases. Moreover, it is a time of extreme stress for a family and for the patient, and balancing the need for, yet scarcity of, this kind of service with our refusal to simply cash in on a family's anxieties leaves a very narrow sliver of workable cases.
That said, I continue to offer these services for those cases where we can get involved. But even where I am unwilling or unable to get involved, I am always willing to schedule a call to discuss the practical implications of hospitalization and the non-legal considerations of supporting a loved one with mental health challenges moving forward, and I do so free of charge. Simply email me at sdgage@thegagefirm.com.
What rights does my loved one have when hospitalized?
While the laws in Georgia are archaic andvery favorable to the hospitals, a patient is afforded a variety of rights that he may exercise either himself or through his representative(s). Those include, but are not limited to:
(1) the right to be transferred to voluntary status (be wary of this request, however);
(2) the right to request dischargeafter being transferred to voluntary status;
(3) the right to be transferred, free of charge, to a state hospital for treatment;
(4) the right to be transferred to another privateCSU hospital, if the other CSU will accept him and if he (or the family) pays for transport to said other private CSU (note, Skyland Trail is not a CSU and does not qualify for purposes of this statute);
(5) the right to have an attorney and to see and correspond with that attorney.
The hospitals are required to assist in providing and completing most forms through which a patient exercises any given right, but the reality is that they rarely do.
I can't get any information about my hospitalized loved one, or even confirmation he's there. Am I not entitled to that information?
This is a debatable question that, by my estimation, the hospitals play masterfully. While Georgia law, under O.C.G.A. §37-3-147 et. al, requires two representatives to be established by the hospital (primarily family members and/or those requested by the patient if possible) to receive information regarding the patient's hospitalization and certain notices, among other things, federal HIPAA privacy laws would seem to contradict this statute, and under the Supremacy Clause, federal law would win out.
That said, while the hospitals don't make it easy, they will usually, eventually, make contact with a family or respond to their requests for information. Sometimes, it's most effective to show up in person to establish that representative status, as the hospitals are required by law (same statute) to gather this information. Also, social workers of some of the best sources of information and the most likely to communicate with you about your loved one, so angle for a social worker or "patient advocate" if you can't get feedback from a doctor.
How long can the hospital hold my loved ones? I keep hearing "72 hours"...
If there's one misleading phrase that needs to be eliminated from the provider lexicon, it's "we can hold him for up to 72 hours." While there might be some provision for this concept in the law, there's very little truth to it in practice.
Here is the kernel of truth to the "72 hour" rule: when a 1013 (form authorizing involuntary commitment) is lodged, the emergency receiving hospital has 48 hours to certify that the person needs further treatment. If they don't, then the 1013 expires and the person must be discharged.This hardly ever happens. During that 48 hour period, a physician typically effectuates this certification for further treatment through a form 1014. After the 1014 is signed, the receiving hospital has 24 hours to transfer the person to an "evaluating facility," such as a Peachford, or Anchor, or Summit Ridge, etc. There's your 72 hours: 48 + 24 = 72.
But, it doesn't stop there. After the transfer to the evaluating facility, the 1014 authorizes up to an additional 5 days of commitment. This doesnot include weekends and holidays. So, in practice, the combination of ER and evaluating CSU hospital have up to a week , weekends and holidays excluded, to hold your loved one with very little meaningful accountability.
This does not mean it has to be a week; in fact, the law requires discharge if at any point the person no longer meets criteria for commitment. But, the hospitals have historically endured very little oversight from courts during this week-long period, and so they utilize it quite fully. That said, the typical period of hospitalization, in my experience, is anywhere from four to six days, including the weekends, all things static.
Can they hold my loved one longer than that week?
Yes, but at that point they must get the Probate Court involved via a 1021 petition.This rarely happens. Hospitals in most cases take their week of no oversight and then move along, discharging the patient at or before that time.
However, if a 1021 is lodged, a hearing must be held, by law, regarding the patient's extended commitment "no earlier than 7 days and not later than 12 days." Why that odd window of time? I have my theory but it's not important here. I have seen doctors in some cases lodge these to give a little more time to treat but in most of those cases, the hearing is withdrawn before it happens and the patient is discharged.
My child is a minor. Can I not simply request discharge against medical advice (AMA) and get him out?
You can, but the hospital's ability to continue to hold a person is not affected by the fact that he or she is a minor, and you don't get meaningful extra rights just because you are the parent of the minor child patient. The criteria for involuntary commitment still rule the day, and the hospitals are given the discretion to make that call.
That does not mean you shouldn't request an AMA discharge. I do believe that hospitals tend to be a little more receptive to requests for discharges in cases of minors, especially younger children. The reasons for this are up for debate, but pushing for discharge in these cases seems more effective than in cases involving adults, in my experience.
The hospitals seem to hold all of the power. Do they?
Practically speaking, yes, or at least most of it. There are bones thrown to patients via rights supposedly guaranteed to them under Title 37, and legal switches that can be flipped to hold them to the restrictions those rights afford the patient. But, I've always said the laws read as though the legislators granted the corporate big wigs over these hospitals a wish list; one that would maximize the profit they make from the patients they supposedly treat. Just the ridiculous windows of time the hospitals are allowed to "consider" the exercise of certain rights afforded to patients (48 hours, 72 hours, etc.) are clear examples of a baked-in hedge for losing out on additional billing that granting a discharge, or transfer, or other right might cost them.
You seem to be speaking mostly about private hospitals. Do the same concepts not apply to State hospitals like Georgia Regional?
I am speaking mostly about private hospitals, though the laws apply to State hospitals as well. But, State hospitals have no monetary incentive to hold a patient for a minute longer than he might reach clinical stability (and in some cases, discharge might come a bit too early). To the contrary, their beds are always full and they need whatever space they can get. The result, in my experience, is that discharge from places like Georgia Regional State Hospital in Atlanta is far quicker; closer to 24-72 hours in many, but not all, cases.
While the environment of a State hospital is not ideal, I wouldn't call it that much worse than what I've seen in any private CSU. And while there are doctors in some of the private facilities who I respect, I also have an enormous amount of respect for many of the doctors, staff, and administrators at the State hospitals as well.
What, then, are the benefits of the laws authorizing involuntary hospitalization?
They keep something worse from happening. It's a breath in time that affords your loved one a chance moving forward, a chance she would not have had she taken her own life or seriously hurt another. I will credit the law (and the hospitals who utilize it) for that and little else.
But, don't mistake this for ground-breaking treatment. It's about stabilization, and it has been described to me in almost every case as, itself, being traumatic. That means that you, as support, need to remind your loved one who has been hospitalized that the real work happens in an outpatient environment, and with providers picked by your loved one and those he can trust. Remind her that real treatment goes beyond medications; finding a therapist to help understand the mind is just as, if not more, critical.Do not think that hospitalization by itself will fix everything. It won't, and it will happen again without a strong foundation of outpatient treatment and education.
MENTAL HEALTH CRIMINAL CASES
My loved one was arrested and I want the Judge to have him transferred to a hospital before we post bond. Can the judge do this?
Not by any available legal mechanism. There is nothing in the Georgia Code for criminal procedure that allows for a criminal Judge to Order an inmate simply to be transferred to the hospital for psychiatric treatment based upon the mere concern that he is unstable or in need of treatment. The only code sections that authorize such transfer deal specifically with matters of Competency to Stand Trial, an extended process you can read more about here and here, and Insanity Defenses, in which case such transfers are only applicable after a case is resolved.
Are there other ways to accomplish this goal? Not easy ones, and they all depend on the mental state of your loved one. If he or she is very unstable and incapable of grasping a plan in any way, the chances of effectuating release from the jail and a subsequent admission to a crisis hospital is slim. In some counties, with creative and understanding judges, I have seen families execute lay affidavits in Probate Court requesting involuntary hospitalization of a jailed individual, based upon the personal observations of the incarcerated individual by two people. If the Probate Court issues an Order to Apprehend in such a case, and bond is subsequently posted, then the Sheriff's department can coordinate transport to the hospital from there. Sounds complicated, right? It is, and it doesn't happen a lot.
Other possibilities really require that your loved one can connect with you or an attorney in some way and agree to a stint at the hospital. This is why we spend the early parts of a case trying to break through to a client; the law just doesn't offer us much, so we need to find a connection to the client in whatever way we can, if possible.
What if my loved one's symptoms are too severe to make a connection and convince him to receive treatment? Does he have to sit in jail?
The answer to this is complicated, because there are so many variables and so many things that can change at any given moment. Whether it be an improvement in his insight, jail medical intervention, or some combination of both, things can move in a better direction suddenly. But, I believe it's important not to count on these changes, and to work on getting certain balls rolling quickly.
One of those balls is an evaluation for competency if I think it's likely to be needed. This decision is usually made after our first visit with a client at the jail. Evaluations take time to request and perform, so it's important not to waste time in requesting them, especially if a client is particularly sick. But initiating this process means the potential for much earlier admission to a hospital for forensic treatment down the road. Such treatment is slow to come, though, and if this path can be avoided it's best to do so. That's why it's important to continue encouraging treatment intervention with your loved one while this process is pending, with the chance that a more efficient and much more desirable means to stabilization and progress can be achieved.
So, while the law doesn't offer fast paths to treatment in the criminal context, a combination of efforts can potentially mitigate the length of time your loved one must wait in the jail for much-needed help.
Are there mental health defenses that can help my loved one in his case?
Yes, but those that are codified are not likely to be used, except in very serious cases. To read more on these tools, such as the insanity defense, gohere and here.
The vast majority of our cases utilize the work our clients do to understand their minds, stabilize their symptoms, and tap into the potential they all have to achieve in those areas of their lives that are important to them. These efforts not only make for an extremely powerful mitigating argument both with prosecutors and judges, but also position an individual to avoid crisis situations moving forward and to stay out of the criminal justice system, the entire mission of this Firm.
This means that a LOT of our work happens outside the courtroom with our clients, through encouragement and conversation, connection with their providers, and regular check-ins to ensure the necessary progress is being made. The family is inevitably a vital component to our success in this regard.
What are the costs/fees involved in legal representation for your criminal cases involving mental health?
DO YOUR RESEARCH, and prepare for a substantial financial investment. Whenever you are considering hiring private counsel for yourself or a loved one in a criminal case, you should view it as a major life investment, because it is.
Talk with several different attorneys, not just us, and get a feel for what they have to offer and the philosophy they employ. You won't be spending a few hundred dollars on this investment; it is likely to be several thousand, as you are essentially paying for several weeks-worth of legal assistance in what is usually a very serious legal matter. We do not want this decision and investment of your hard-earned and saved money to be a rash one, so take the time to flesh out your options well so that you are confident your investment is well-placed.
How to Challenge a 72 Hour Psych Hold
Source: https://www.thegagefirm.com/faqs