Behavioral Health And The Law: What Is The Patient Advocate's Role?
Just recenly, I was involved with a client for over a year in Florida. She had been ill for an extended period of time, and she was moving in and out of psychiatric residential treatment programs. Her husband of 30 years used his power of attorney authority to manage her care for many years. He was devoted and dedicated to her care and hopeful for her recovery. Given the legal issues that he anticipated, he recognized the necessity of a patient advocate.
It was ultimately the family of the client, not of the husband, who chose to intervene and challenge the husband. The husband was forced to file for guardianship in court, and a guardian ad litem was appointed. The matter remained in the court for months. During that time it became apparent that the family of the client wanted to totally control her and her substantial assets. It was quite apparent that her health and recovery were not their priorities but her share of a financial family empire .
While the months of legal wrangling transpired, the client continued to be treated, but the husband no longer had any control. I, as the patient advocate, remained involved during this extended conflict. The HIPPA laws were particularly challenging as I was trying to keep the husband in the loop, even though the clients’ family wanted him removed.
Patient advocates must know basic laws of guardianship, powers of attorney for the person and the estate, and must know how these laws affect families and the medical team.
Ultimately, the husband and wife’s legal teams advised that they separate their assets, and proceed with a divorce. The wife remains very ill, completely controlled by her family, and the husband has been totally cast aside. The legal system did not take into account the safety and security of the patient.
Our nation's health systems conduct their activities under an array of ever-changing, complex state and federal laws. To function effectively, patient advocates need a current working knowledge of the laws and regulations involving patient rights and responsibilities. We are expected to be responsible for helping to protect the security and safety of our patients.
Patient advocates who specialize in mental and behavioral health cases must understand state and federal laws governing competence and decision making. Many of these clients are mentally challenged, or in a psychiatric crisis, and in those cases, it can fall on the advocate to point out when the patient is no longer decisional. The patient advocate must know basic laws of guardianship, powers of attorney for the person and the estate, and must know how these laws affect families and the medical team. These laws also vary from state to state, which complicates matters.
Advocates need a working knowledge of the laws and regulations involving patient rights… We are expected to be responsible for helping to protect the security and safety of our clients.
I am now involved in another case, in which a 62 year old female client has not executed any POA documents. She is not decisional, and has been ill and completely reclusive for many years. She is now in a crisis mode, and has been in a psych unit for several weeks. The husband and family are not able to see their mother, or even to communicate with the physicians. I have attempted to bridge the barrier and have been somewhat successful. The hospital filed an emergency petition for forced medication for the patient without the knowledge of the family.
I am helping the family determine their next steps in terms of residential placement. However, the family has no authority, and the safety and security of the patient is at risk. The family has engaged a lawyer and may very well file for temporary guardianship. Guardianship, however, is costly and complicated. It's a mechanism by which a person's legal rights are taken away for a sound and necessary purpose. In many cases, alternatives to guardianship can and should be used. I usually recommend that guardianship be considered only as a last resort.
In many cases, our role is to help the family understand the legal matters and even to help them navigate the process of engaging a lawyer.
Finally, I have had several cases in recent months, where the clients entered an ER with a psychiatric incident; and remained “incarcerated in the ER” for days at a time; often restrained, and sometimes abused. The delays occurred because there is an extreme lack of availability of psychiatric beds. We are pursuing legal action in one case as the patient weeks later is completely dysfunctional and traumatized.
I've learned many lessons in these cases and I have grown to understand the role I play when I'm working with mental and behavioral health clients. I encourage my independent patient advocate colleagues to realize they have a role to play, even in the most complex of scenarios. At a minimum, we must be able to identify clients who could benefit from an advocate who understands the complexities of the mental and behavioral health systems. Once we can identify who needs specialized help, we can refer, collaborate, partner, and learn our own lessons. Here are some important lessons I've learned along the way:
- There is a huge need for patient advocates to help people suffering with mental health and behavioral issues;
- If we take on a case in this area, we must be familiar with basic laws governing competence and decision making or refer the case to a patient advocate who has familiarity with these issues. In many cases, our role is to help the family understand the legal matters and even to help them navigate the process of engaging a lawyer.
- Sadly, I have discovered that there are many patient advocates who do not want to become involved with these cases. They are extremely traumatic and require the highest level of empathy, care, compassion and sensitivity.
Avrom Fox — Chicago Patient Advocacy