Medical holds are commonly associated only with patients suffering from mental illness, but what happens when a patient needs to be held for treatment or observation due to a non-psychiatric problem? Wendi Campbell Rogaliner, Partner, Bradley Arant Boult Cummings LLP, and Elicia Grilley Green, Associate, Husch Blackwell LLP, discuss the legal and ethical considerations of holding patients who are not suffering from mental illness. They cover real-world examples, the current legal landscape, formal assessments of capacity and surrogacy appointments, and how providers can assess risk and operate in this complex legal environment. Wendi and Elicia authored an article for AHLA's Journal of Health and Life Sciences Law about this issue.
To learn more about AHLA and the educational resources available to the health law community, visit americanhealthlaw.org.
Medical holds are commonly associated only with patients suffering from mental illness, but what happens when a patient needs to be held for treatment or observation due to a non-psychiatric problem? Wendi Campbell Rogaliner, Partner, Bradley Arant Boult Cummings LLP, and Elicia Grilley Green, Associate, Husch Blackwell LLP, discuss the legal and ethical considerations of holding patients who are not suffering from mental illness. They cover real-world examples, the current legal landscape, formal assessments of capacity and surrogacy appointments, and how providers can assess risk and operate in this complex legal environment. Wendi and Elicia authored an article for AHLA's Journal of Health and Life Sciences Law about this issue.
To learn more about AHLA and the educational resources available to the health law community, visit americanhealthlaw.org.
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Speaker 2:This episode of a HLA speaking of health law is brought to you by a HLA members and donors like you. For more information, visit american health law.org.
Speaker 3:Hi, I'm Wendy Rogel aligner , a healthcare lawyer in the Dallas office of Bradley, a ranch . I'm happy to be here today with my friend and help a colleague, Alicia gr Green to talk about an interesting issue that we wrote about recently for A HLA . The article, which was published a couple months ago, is entitled Medical Incapacity Without Mental Illness, A Illegal and Ethical Dilemma for Physicians. And we, I think, are so happy, Alicia and I to have been asked to talk about this article on a podcast. It's a really interesting issue that we kind of stumbled upon and got interested in regarding how to navigate patients who are lacking capacity to make their own medical decisions. Sometimes urgently, you know, it , it's sometimes without much notice , um, but not due to mental illness, which you might not realize unless you've kind of faced this issue or this situation head on . But there's a significant gap in the law in this area when the in incapacity is not related to mental illness, and it often leaves providers, patients, and families in really uncertain situations. So when Alicia and I began talking about this and researching it a few months ago , um, I think we both realized pretty quickly that it's, it's really important issue that should be talked about, and that hospitals and providers really could do some guidance on how to approach these situations ahead of time. So, anyway, I don't wanna get ahead of myself. Alicia , why don't you introduce yourself and tell us a little bit about how you became interested in this topic.
Speaker 4:Hi, I am Alicia Green. Um, I am an associate at Husch Blackwell. Um, I do primarily regulatory and compliance work. Um, I do, I have taught at SMU Edmond School of Law. I've co-taught , uh, public health law and ethics, and I have a master's degree in bioethics from Harvard Medical School. So this is an especially interesting topic for me because it kind of lies in that intersection between kind of an ethical , uh, problem as well as a legal problem. Um, so basically it's kind of the , the traditional fight between beneficence and paternalism, which would be more on the provider side in terms of wanting to do the right thing for the patient. Um, and then patient autonomy on the other side is right over making their own decisions, self-determination and having control over their own body and what happens to their body. So this is kind of a balancing , um, act that comes up in other situations. And that is always very interesting to me because it's a really difficult thing to balance, and it kind of makes us ponder what the right thing to do is, especially when every situation is really different and complex and the patient is different and their families, and you have to take so many factors into consideration. So I think we can all ask ourselves, or at some point, maybe faced in one of these situations and have to kind of go through the analysis of what we would expect or how we would we think that ha that should be handled, and to give direction in our professional lives towards providers , um, and clients who could potentially also be, you know, faced with providing treatment to a patient who is experiencing this type of situation. Um, so that's kind of what I guess I find most interesting about it . But also I think, like Wendy said, it's a , it's a problem that people don't really think about because they often only associate a medical hold with a patient or a psychiatric hold, I should say, with a patient who's experiencing mental illness. Um, so Wendy, why don't you give us some examples of, I guess, you know, some situations that you've encountered in your practice where a patient might need to be held for treatment or even observation for a certain period of time due to a medical problem rather than a a psychiatric problem.
Speaker 3:Yeah, sure. Happy to. I , um, as you know, I do a lot of hospital operations work in my practice, which means basically, you know, day-to-day advising of hospitals regarding the , the patient and other situations that have arose , you know, that day or overnight. Um, so I have plenty of examples of this that we could talk about, but two are really in the forefront of my mind, and they just happen to be the two that we briefly touched on in the article. And, you know, they, they both were real life , um, situations that we had to face and, and they were tricky. So the first was , um, a cancer patient who, you know, after lengthy hospitalizations, lengthy treatments, and , um, this particular patient had been hooked up to invasive nasogastric tube and , uh, other kind of , um, draining tube that had so external tubes actually, you know, into the internal cavities of the body. And decided suddenly at three o'clock in the morning, one night that she was finished and she was gonna go home. And so this patient was alert to, you know, her circumstances alert to, you know, time and where she was and oriented , um, but she was not able to appreciate the risk that she would be exposing herself to the immediate danger of just walking out, not even giving the clinicians time to stabilize her condition and unhook the tubes and things that were , um, you know, that she was attached to. So instead she unhooked herself from the ones that she was able to do. And she knew how to do this 'cause she had gone through so much treatment and watched the clinicians change things, change the tubes and, and such during her treatment that she was able to unhook herself. But, but that left her with open tubes dangling from her body going to internal organs. And she, you know, got herself dressed despite that and was going to leave. Um, it was really a difficult situation. The physicians and the nurses found her capable, meaning they, they thought that she was a competent adult even though she was making a decision, that in and of itself spoke to lack of capacity because no one was trying to keep her permanently. They were trying to keep her for long enough to stabilize her if she was in fact gonna leave against medical advice. Um, so sometimes the situation itself speaks to lack of capacity. Um, but in this situation, the clinicians, assuming that she was competent and had capacity to make this decision, sort of didn't know what to do, they didn't think that they could hold her against her will even temporarily. So they, they weren't intervening. And the calls that I got were , you know, she's, she's up and ready to go and, and going to leave in this state, and we don't feel like we can hold her. Um, in that case, we were able to resolve the situation by leaning on the family to get there and talk her out of doing this, which would've, you know, created a grave risk to her immediate health , um, and wellbeing. And so you'll find, and I'm sure we'll get into it later as we talk , um, if you don't have an advance policy at the hospital to follow, and you and the clinicians don't know exactly what to do, the , the family is a huge resource and can often turn things around, which is what happened in that case. Um, another similar situation where this actually comes up pretty often, but , um, the cases of someone with head trauma, in our case, it was a motor vehicle accident. And while awaiting the CT scan results to see if there was a bleed in the brain, the patient just decided , um, you know, the patient appears perfectly competent and capable and just decides, I don't feel like waiting for this. It , I'm fine. I shouldn't have come in, I'm fine. And starts to leave. And the doctors are saying, we have no idea if this person had, has impact a brain bleed , um, and has, you know, a condition that's preventing him from making a , a sound decision here. He might not have capacity to make this decision. And his departure here is putting not only himself in grave danger because he could die if he has a brain bleed going on, but also others because he, dr . He, you know, he could get in a car and drive , um, and, and potentially pass out and obviously inre others. So in that case , um, the clinician, the , the hos , I mean, sorry, the patient was awake, alert, oriented, and very assertive about his decision to leave. And, and the hospital and the clinicians required assistance and, and didn't really know what to do. The hospital didn't have a policy for folks who were in fact competent and not suffering from mental illness. But, but in a situation albeit temporary, where until those test results came back, we really didn't know and weren't able to assess his capacity to make that medical decision to leave against medical advice. So those are just a couple of examples. It, there are so many that come up day to day in the hospitals, particularly in emergency rooms. And I know we need to get to the substance and not just talk about example after example, but it really does arise with, with frequency. So it's surprising to me that there are gaps in the law and that so many hospitals haven't , um, prepared for it in advance and don't have policies set up specific to their , uh, community and their state law issues. So I think, I don't know , Alicia , probably the best thing to do is talk about, sort of set the landscape of what we found from a legal perspective in our research and why there's a gap here.
Speaker 4:Right? So every state in the us um, has a law in place that will allow a physician to hold a patient based on mental illness. So I'm sure most people know or have at least heard that it's often the dangerous to self or other standard. So it would be if you're a danger to yourself or others based on mental illness , often , um, at times mental illness is defined where it includes the patient actually , um, being diagnosed with a , something that's a , that's listed in the DSM. Um, and another , uh, really complicating factor is that many states , um, actually exclude , uh, conditions like or being intoxicated, intellectual disability , dementia, and , um, people that are ex , you know, have substance use disorder , um, Massachusetts , uh, for example excludes autism spectrum disorder, developmental disabilities, traumatic brain , um, injury or alcohol and substance use disorders from its definition of what would qu what would be considered , um, a mental illness for the sake of a , a holding a patient under a psychiatric hold. Um, so if the patient comes in needing some sort of treatment or care and is intoxicated, then that patient , um, doesn't have capacity to consent to treatment, but doesn't also, doesn't necessarily have the capacity to leave against medical advice. So it kind of, again, leaves the provider in a really difficult situation. Um, so that often means that the provider has to choose basically between one of three options, which would be , um, allowing the patient to leave against medical advice or a MA , um, using the state's kind of mental health hold or psychiatric laws and applying that to a patient that doesn't actually have a a isn't experiencing mental illness, especially under the definition included in the regulation or the statute, or determines that the patient lacks capacity. Um, and has the hospital staff , uh, detain the patient until hopefully the patient lacks, you know, regains capacity or some other decision maker. It's whether it's a surrogate or a guardian is found to start making medical decisions on behalf of that patient. Um, so again, kind of these choices all kind of lack this area between, you know, ethics and legal and the law and , um, it's that balancing act between determining, you know, balancing patient autonomy against, you know, the provider's paternalism and beneficence. Um, but it's a really important issue like Wendy said, and it's a really hard decision to make , um, like we both discussed. And I think we're especially seeing now more than ever, that more patients are actually choosing to lay , to leave against med advice . Um , it used to be fairly uncommon and it's happening more and more often, and in those situations, obviously those patients that are at a much greater risk and inevitably , um, there's a much higher risk that legal action will unfold , um, after the fact. Those cases where patients have left against medical advice , um, are much more likely to leave to lead to litigation. Um, so I guess I'll turn it back to Wendy and ask her kind of what, what problems do you think are, you know , created when you hold a patient under a psychiatric hold , you know, for under a psychiatric hold when they, you know, that's unrelated to mental illness. What do you think like the most important consideration is for providers?
Speaker 3:Yeah, that's a good question. You know, when you tee it up the way you just did, which is the three options that the clinicians are basing, they're , they're fraught with risk. And I think that's why we get a lot of clinicians and risk managers at hospitals who are just almost frozen in this situation. You know, as you said, if the patient's allowed to leave a MA and you have a patient who walks out, but the, the clinical record looks like the patient clearly lacked capacity to make that decision, then, you know, not only is the patient at severe risk of harm oftentimes , but the , the hospital and the provider are at risk for, for litigation as you, as you described. The second option of, you know, sort of incorrectly using the state laws for an emergency hold based on mental illness, even when you know the patient does not have mental illness, it is really extremely difficult , um, to accomplish for one thing and it doesn't really solve the problem. So it's difficult to accomplish because it's typically gonna require mental health professional come in , consult, make a determination of mental illness, which you know, is not likely in a alert oriented, competent patient that doesn't have signs and symptoms or previous issues, you know, diagnoses of mental illness. Um, also if, if you get the hold that the 72 hour Texas I , it's 72 hours, if you get the hold, it doesn't really solve the problem at all because those state laws typically require that the patient once medically stable, be delivered to a mental health facility to treat the mental illness. So if that type of hold is used, the patient's departure might be prevented, but you haven't solved much else. Now, the patient's under a court order to be delivered to a mental health facility once they're medically stable, it's not the answer. It's sort of dramatic and traumatic for the patient and the family, and it doesn't really solve the problem. Um, it's kind of like trying to fit a square peg in a round hole and, and, you know, I guess I personally am in favor of anything that protects the patient from, from that walk out the door where they're exposing themselves to immediate , um, you know, significant risk of death or , um, other significant health problem. But, but this isn't the right answer. And so you have to move to the next option, really, which is making a determination of capacity. I have to tell you from, from my practical experience, day to day in advising hospitals on these issues, I , I don't find that clinicians are really trying to use the, the psych holds very often. Um, I think they can typically tell the difference and they don't try to initiate the mental health holds. Um, but in my experience, they don't often enough assess formally assess capacity. In other words, I think, you know, adult patients are typically presumed to be competent and have capacity to make the decisions that they're making , um, unless they have an open and obvious mental illness. And so I think the real step that I would like to see clinicians move toward is a more formal assessment of, of capacity. Um, what do you think, Alicia ?
Speaker 4:Yeah, I agree, and I, I think , um, just so people have an understanding kind of, of what capacity looks like or what a capacity determination , um, may look like, it's basically a , you know, the physician or the provider, often a psychiatrist will kind of come in and judge whether the, the patient , um, really understands the risks and benefits involved in whatever the treatment is, and they can actually make an informed decision regarding that treatment. Uh , I think what makes it difficult is even if the person, you know, then if the person is found to lack capacity to make decisions, they can't make a decision about their treatment at that point. They can't decide to leave, but they also can't, you know, authorize treatment. So you're kind of just stuck in a situation in which you're in limbo, so to speak. But , um, I also think it's very important for kind of the physician to go through this process and really try to understand the patient's point of view or involve the patient's family , um, to try to understand the situation to the greatest extent possible. Um, but then again, if the patient is still electing to leave against medical advice and lacks capacity , um, then the , the only real, you know, option that begins to take unfold at that point would be finding a surrogate or, you know, a guardian to start making those medical decisions for the patient. Um, so I guess I would ask Wendy, like, kind of what is it in your experience or when you've seen these things happen, like what does that usually look like in terms of finding a surrogate , um, having that surrogate decision maker come in and start making those decisions?
Speaker 3:Yeah, yeah, happy to talk about that. It can be tricky. And again, this is something that when it, when it does come up, I'm , I'm often, I'm sure other healthcare lawyers that are listening to this are often on, on the phone helping the risk managers or the , um, clinicians walk through the acceptable decision makers in the order of priority. Um, it can be tricky. So surrogate decision makers are designated by document or by statute. Typically if, if the person has, you know, a healthcare directive or other document that specifies who's gonna make their medical decisions for them in the event they become unable to make decisions for themselves, then that, you know, physician's determination that the patient lacks capacity just automatically sort of triggers the, the decision making to go to the identified surrogate. And that's great if it's, you know, identified in the document and the surrogate who is identified in the document is readily available to the clinicians and involved in the patient's care and treatment. That's sort of the easy case. That's not always the, the case. As you can imagine, oftentimes patient doesn't have a documented surrogate decision maker, or the document is old or identifies someone who is no longer available or around or responsive or in the patient's life and, and the clinicians can't reach them. It oftentimes takes some time to work through those issues. Um, for people who don't have documents, you know, state law often specifies who the surrogate decision makers are and the priority list in which they , um, they take over. So like in Texas, the spouse of course, a a living spouse has first priority and is the surrogate decision maker. And if there is no living spouse, then it goes to adult children. Um, it's important of course, and , and typically when a patient is in the hospital, at least for an extended period of time, the the family and the surrogate decision makers are sort of well known to the clinician team. And a , a lot of times these things are sort of thought through and the , and the documents are in place and everything's fine when the patient, you know , to go back to our example, the , um, cancer patient who, you know, was, had been in the hospital a lengthy period of time, and so it was not a sudden situation. It can be very different in the emergency room , um, when a patient's there, they may have an advanced directive, but it may not be with them . And , um, you know, obvious other issues with respect to the hospital staff, even knowing who the surrogate decision makers would be. When you think about it though, the, the question I get a lot is, let's assume that you have an identified surrogate and that , that now the physician's determined that that patient doesn't have capacity to make this decision to leave against medical advice or refuse treatment. So now we have an identified surrogate who is there and able to help. At that point, the surrogate literally begins speaking for the patient. So I find the hospitals and clinicians often in this situation still are nervous and calling me to confirm that they can hold a patient like, quote unquote , against the patient's will, based on a decision by the surrogate. But the thing is technically, and I think you said you've seen this too, Alicia , but technically in that case, you're not holding the patient against the patient's will. The patient's will, when they were confident, was to defer to this surrogate decision maker. So now the surrogate is speaking for the patient. So that's not an involuntary hold, it's just that the surrogate is standing in the patient's shoes for the purposes of giving consent and making medical decisions at that point. It's a nuance, but it's important when you're, you know, right in the thick of, of handling all these things and the clinicians sometimes are still thinking, gosh, I'm holding against this, patient's will. Um , but that's not really the case. But I think , um, so I guess my point here is just that, you know, the , this, whether or not you have a surrogate available is very fact specific. Hopefully you do, and that really helps to resolve the problem. If you don't, and there's no one identified by document and no family at the bedside, and you're trying to identify things about the patient, but you don't have an obvious surrogate, then what happens, Alicia , when the clinical team is trying to deal with this situation where there's no surrogate and we're having to continue to talk about holding a patient against their will. 'cause we've made an overt determination that they're incapable of making medical decisions at this point. I, I know we've talked about that there's a gap in the law, but I think what we haven't talked about is that some states have actually have addressed this head on and there are some statutes. So I wonder if those can sort of help the clinicians in the states that don't have , um, statutes on this maybe looking to the states that do is helpful in crafting policy.
Speaker 4:Well , yeah , um, you're right, and I think you set up the problem exactly there for people to really understand kind of what this would look like on the ground. And a few states have passed legislation that's specifically applies in situations where it needs to be an emergency hold that's faced more on medical illness than mental illness. And so these are often called medical holds. And basically the way that the laws work in those few states who've passed them thus far , um, is that it allowed the patient who lacks capacity for non-mental health reasons to be held against their will for a , a certain set period of time, essentially to prevent further injury to themselves or to others. Um, so Virginia has passed a law , uh, basically the way Virginia's law works is that with the advice of a licensed physician who has already tried to , uh, get informed consent from the patient who's an adult, then they will go to a court or a magistrate and seek an order , um, authorizing the temporary detention of the person in the hospital or the emergency department. Um, and this can even allow for testing and observation and even treatment of the patient , um, once that order is finalized. So basically, in order for that to happen , um, there has to be probable cause , uh, to believe that the patient is incapable of making an informed decision and that the standard of care , uh, really calls for treatment , um, whether it's observation or, you know, moving forward with actual treatment to prevent injury, disability, or death. So unless it's authorized by the court, the detention cannot last last longer than 24 hours. Um, if the person regains capacity during that time, then of course the patient regains control over their own care and treatment and then it , the facility either, you know, time for the patient to hopefully regain capacity or for a surrogate to be found , um, to take over and kind of making those medical decisions. And I think one thing that's really important and interesting about Virginia's law particularly is that the court will also seek the input of the family and kind of making these decisions. If there are any sort of objections , um, then the court will take those into consideration. Um, and ultimately I think for providers, the most important aspect may be that they are given, the provider is given immunity from liability thereafter, as long as this process is followed for any sort of a claim , um, for based on lack of consent to treatment. So we, we know so far that only a handful of states have moved forward in passing these laws, so they're not, you know, solving the problem, certainly on a national standard. So what do you rec think, Wendy, of like a hospital or a physician faced with a situation like this should do? Um, like what the best practices or pointers that you would have from your professional experience?
Speaker 3:Yeah, so practical steps, I, I think, which I already mentioned, is if, if there's family involved, if there's family available and at the bedside and involved in the care, assuming that you have all the necessary HIPAA privacy issues addressed and authorizations and communications are allowed , uh, with those people, have the family persuade the patient to remain or to accept the treatment that , I mean, that's your, that's your first line of defense, that they're often the most persuasive with the patient and can at least, if nothing else, buy you time and get the patient, you know, as I said in the, in the cancer patient situation, it was the family that convinced the patient to stay long enough to become unhooked and , um, and, you know, stabilized for discharge. You know, just to wrap that story up, when, when the family convinced the patient to stay for, for long enough to do that, she ultimately calmed down and talked to the clinicians and ended up deciding to stay. Um, so involve the family. Um, second, hopefully the hospital has a policy that can be followed to help with this, if not develop one as soon as the immediate case resolves. Um, ideally a policy would wa help the provider walk through the necessary steps from assessing capacity forward, but without a policy, I say, you know, ultimately the facts and circumstances of each situation, including the likelihood and gravity of the risks that the patient is gonna face if they proceed with the course of action that they're proposing , will likely dictate the links to which the hospital and the physicians or clinicians are willing to go to overrule the patient's decision making authority and autonomy. So it's always gonna be a balancing act. Um, in the event that the clinicians do decide that, you know, sort of involuntary detention needs to be undertaken for a brief time , um, it should be strictly limited to the duration of time required to, you know, solve the issue or request judicial support. Probably that would look like appointment of a guardian. Um, but the reason I say it could resolve on its own is because like , take the example of the motor vehicle accident head injury patient who was insisting on leaving before the imaging came back. So that involuntary hold, which was undertaken, resolved itself as soon as the imaging came back. At that point , um, the risk of letting the patient walk out without that knowledge was resolved. And in that case, he did have a significant , um, situation going on clinically, and he voluntarily, you know , undertook to stay at that point. Um, so sometimes the mere detention itself will solve the problem. Uh, but if it doesn't, then you know, your team , your legal team's gonna have to move quickly to, to get judicial intervention and appointment of a temporary garden guardian. If you don't have a surrogate decision maker , um, as the clock ticks towards, you know, your ability to hold that patient any longer , um, I think it probably goes without saying, but during any whole period, the patient should only be treated to the extent necessary to preserve life and function. This is similar to what they do in the emergency room when faced with an unconscious patient. Consent is presumed sort of to preserve life , uh, but that doesn't override a patient's decision to refuse treatment. So remember, we're talking about patients who lack capacity, but it doesn't mean that you can make decisions for them regarding things that are not emergent and life threatening. But, you know, as you can hear as we talk about this, like it's not a perfect science, it's gray, it's extremely fact specific , and with gaps in the law, there's always gonna be a bit of uncertainty. So, Alicia , I'm curious what you're hearing with respect to best practices and , um, what I might have left out on, you know, sort of just the best ways to deal with this issue and prepare for it .
Speaker 4:Uh , yeah, I think, you know, I try to tell providers that they should, you know, reach out to their state regulators kind of try to get that , uh, guidance in advance in terms of, you know, how they should be approaching these situations. Another resource that I always like to encourage, you know, providers to use is their clinical ethics department, if they have one, or even an ethicist that works clinical ethicist that works on their staff , um, to go to them for kind of to tap their, you know, VATS experience at kind of dealing with very, very difficult situations like this. That's essentially all they do every day . And dealing with families and patients , um, and kind of taking that guidance and like, you know, you said drafting a policy and, and incorporating, you know, having your council or outside counsel help you to kind of structure that policy , um, within the bounds of the law and as most appropriate, you know, for that particular , um, hospital or entity. Um, and then like you said, be prepared upfront . Um, understand the laws and expectations in your state. Um, have that really comprehensive policy that you've spent time thinking about in place before the situation arises. That's an emergency situation when everybody's , um, stressed and unprepared and then, you know, every second counts. And so more mistakes may made. So it really, you know, I guess this is just like a lot of other scenarios where prevention really can help in when this actually does occur, because it is, like we talked about , um, becoming more and more common, I think is medical technology and , uh, just, it's just becoming a situation that's continuing to arise. So, but I think, like the question that clients always ask me seems to be like, where's the liability? Um, how should clients assess these risks? So Wendy, what do you think about, you know, what is the best way to look at the risk?
Speaker 3:That's such a good question, and I know that we both get it all the time. You know, there's, there's risk , um, in each, each prong, each decision, no matter which way you turn, there's risk. Um, I get questions from clients about cases, liability exposure for false imprisonment when they hold against, hold a patient against their will , uh, what if they hold too long? Um, obviously on the other side you have risk releasing a clearly documented incompetent patient in an unstable medical condition that that's, you know, gonna expose themselves and others to risk potentially with respect to how to assess those risks to me, I mean, I don't mean to be kind of so practical in big picture, but it's sort of like, which lawsuit would you rather face? I , um, I know that Alicia , you and I have different sort of, I might be a little bit more , um, practical in this regard in that I'm doing hospital operations work. I used to do med mental liability defense for providers. And so, you know, I kind of have the answer of, I'd rather defend a lawsuit, a false imprisonment lawsuit from a well patient , um, who was, you know, protected so to speak against their will. But, but you know, not given like invasive non-emergent treatments against their will, but just, you know, maintain, remain , sorry, held longer than they wanted to be held against their will in an emergency room so that we could make sure that they actually were , um, competent to make the decisions that they were making. So I'd rather defend that case any day than the case , um, brought by the family of a patient who walked out in an incredibly compromised position, and we just let them go and, you know, something terrible happened. So it , it's always gonna be a risk assessment. And like I said earlier, it kind of depends on, on the gravity of the risk that the patient is facing. And that's a clinical situation, right? If , if there's a bit of risk to their walking out, but it's, you know, maybe not all that severe and not all that likely , um, and the patient, you know, could face some risk in the coming days, but it's not eminent . All those things go against a hold. Um, but in the, the sort of extreme circumstances that we've been talking about, you know, I think that, that it's better to face the pa pause imprisonment claim and limit the hold in the ways that we've discussed today. Ideally, the best way to resolve this is that every state needs to address it. Right. And so I wonder, Alicia , I know you're sort of policy focused and have that big picture in mind. Do, do you think that eventually every state will address this gap? What do you think is gonna happen?
Speaker 4:Uh , I would hope so. I mean, it looks like we're moving in that direction as a few more states have added , um, additional laws, but I thinks important for, you know, hospitals and hos , hospital associations, patients, providers and families to kind of reach out to their state legislatures and, and kind of to try , try to create more awareness , um, about this issue. But, you know, I think just on the ground, like we've talked about, just be prepared. I think really for providers that means having a plan or a policy and then kind of for patients and families too, like having those conversations with your family, having, you know, your power of attorney or your advanced directive ready and that your family knows or has a copy of, you know, that if there's an emergency , um, so then , you know, they know what decisions you want to be made. They already have the plan in place , they already have the policy there, and they can just immediately start making those decisions for you, which is a lot less worry for everybody, honestly. So, yeah, I mean, I'm hopeful that more states will recognize that this is an issue because it certainly , um, needs to be addressed.
Speaker 3:It does. It was a , it was a really fun article to work on and to write, and I'm glad that a HLA let us do this podcast.
Speaker 4:Me too . It was, I had a really , um, it was a very interesting article to write, a lot of conflicting , um, rights and needs, so that always makes it more complex.
Speaker 3:Yeah, absolutely.
Speaker 2:Thank you for listening. If you enjoy this episode, be sure to subscribe to a HLA speaking of health law wherever you get your podcasts. To learn more about a HLA and the educational resources available to the health law community, visit American health law org .