How to protect patients’ rights and abide by mental health laws

How do you get consent for mental health services for psychoactive medications (i.e. medication with the capability to alter mood, anxiety, behavior or cognitive processes) in mentally incapacitated patients? Dr. Thanh Thuy Truong, Dr. Anu Matorin and Dr. Elizabeth David, psychiatrists at Baylor College of Medicine along with the legal teams at Harris Health and Baylor, recently did a deep dive into the Texas Health and Safety Code procedures as published here. We asked Dr. Thanh Thuy Truong about the findings and how this can impact patients and patient care.

Question: What’s the current process for hospitals/health providers to obtain informed consent for psychoactive medications?

Answer: Following an evaluation, mental health clinicians make recommendations, including level of care (i.e. inpatient or outpatient), therapy and medications. For psychoactive medications, the person is educated on risks, benefits, side effects and treatment alternatives.

Informed consent is the process in which the individual makes and communicates their decisions according to their values based on their understanding of this information. Texas law requires informed consent prior to administration of any psychoactive medication.

The process of informed consent necessitates intact decision-making capacity, which many individuals suffering from severe mental illness may lack when presenting to a psychiatric hospital. They may not recognize their condition and realize that they need treatment. If the individual struggles to comprehend the information or meaningfully participate in the conversation, they cannot consent.

The most common practice in these situations in Texas is the use of assent, where the medication is provided, and patients take it even if they do not understand. Once the person’s capacity is restored, then they may provide informed consent. In other cases, an application for involuntary treatment and medication commitment is filed with the court. If approved, the medication is administered without the patient’s consent.

Informed consent is required for administration of psychotropic medications regardless of assent. In patients who are incapacitated, the code requires the use of a legally authorized representative (LAR) to provide informed consent on the person’s behalf. LARs can be the person’s medical power of attorney or surrogate decision maker such as their spouse or parents.

Many patients are unable to provide information about their families due to mental incapacitation. For example, some patients suffer from delusions or paranoia toward their family members and refuse to allow the team to contact them. Clinicians should be aware that Section 164.510(b)(3) of the HIPAA Privacy Rule permits a healthcare provider to discuss the patient’s condition or treatment with a family member, if the provider believes the patient is not able to meaningfully object or agree due to their mental state and it would be in the patient’s best interests. These may include circumstances in which a patient is suffering from temporary psychosis or is under the influence of drugs or alcohol.

While the medical team often makes a diligent inquiry to identify family members, it is not always possible to find family in a reasonable amount of time. The Consent to Medical Treatment Act (Chapter 313 of the Texas Health and Safety Code) delineates a hierarchy of surrogate decision makers. When no family can be identified, a member of the clergy such as a hospital chaplain may consent on the patient’s behalf. In short, informed consent is required for psychoactive medications either from the patient or the patient’s legally authorized representative.

Question: What rights do psychiatric patients have?

Answer: Psychiatric patients have the legal right to appropriate treatment for their mental illness in the least restrictive setting available, which includes a humane environment that provides protection from harm and appropriate privacy for personal needs.

“Least restrictive” refers to the person’s liberty. This also means that if the person has capacity, they also have the right to decline treatment. Involuntary care is initiated only when the person is incapacitated (and therefore cannot make an informed refusal of treatment) and at significant risk of harm to themselves or others due to their mental illness.

Each step of the commitment process involves safeguarding their legal rights, which includes the right to a judicial determination of the person’s need for involuntary treatment. For all impaired patients, they have a right to a legally authorized representative to act on their behalf. Because capacity can vary with each decision (i.e. a person with psychosis may still consent to medical treatment), efforts should be made to respect the patient’s autonomy whenever possible.

Every clinical decision should make attempts to balance the principles of medical ethics (i.e. patient autonomy, beneficence) and legal requirements to provide care that serves the best interests of the person.

Question: How are patient’s family engaged during a mental health crisis?

Answer: Family is an essential source of support for an individual suffering from mental illness. They are often the first ones to express concern, bring the person to get help, and continue advocating for them.

Mental illness takes a tragic toll on a person’s life, including their ability to have stable housing, employment, and relationships. It can be incredibly lonely and alienating. Patients with supportive families generally have better engagement with treatment, feel less alone, which often leads to a faster and more meaningful recovery.

Question: There have been articles in the media about people who have been admitted to psychiatric hospitals with psychosis and mania, and the family is not contacted at all during the hospitalization. How common is this issue and what if any steps can be taken to help clarify this confusion and improve the process?

Answer: Unfortunately, people with mental illness can become isolated from their loved ones. It is not uncommon for some to have recurrent hospitalizations, and yet no family had been identified. There are also countless stories of hospitalized patients whose families are waiting in angst, never being contacted throughout their loved one’s hospitalization. Moreover, the legal requirement for representative consent in incapacitated patients naturally motivates clinical staff to make every effort to contact family members.

This family engagement is essential not only to get to know the person to make an accurate diagnosis and provide appropriate treatment, but to improve their long-term recovery. We always ask family members for a description of the person when they’re well, so we know what has changed and what to work toward.

Hospital administrators should review the legal requirements and ensure the process is followed by their clinicians. We also encourage patients and their families to learn about their legal rights so they can advocate for themselves when needed. The Texas mental health laws are available online or can be access at txcourts.gov.

By Clarice Jacobson, senior business strategy & development associate, Center for Medical Ethics and Health Policy, Baylor College of Medicine