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Battle in Vermont Over Involuntary Medication

Montpelier — A legislative committee last week rejected a proposal from the Shumlin administration that would allow nurses to forcibly medicate psychiatric patients.

The fact is, they already do.

Hospitals in Vermont follow federal regulations for treatment of psychiatric patients. Under Centers for Medicare and Medicaid rules, registered nurses can involuntarily restrain, seclude and medicate patients.

Mental health advocates say forcible medication is psychologically damaging for patients and treatments should only be administered by certain trained personnel after a physician has evaluated a patient. In a 1984 court settlement, Vermont advocates and the state set a higher standard for involuntary restraint, seclusion and medication.

That standard was the norm at the Vermont State Hospital. The hospital, which cared for patients in the care and custody of the commissioner, was closed on Aug. 28, 2011, after Tropical Storm Irene. Since then, psychiatric patients have been sent to local hospitals for care as part of the Shumlin administration’s decentralized mental health system.

Ever since the Vermont State Hospital closed, the state’s rules for involuntarily seclusion, restraint and medication have been in limbo. Advocates say the state hospital regulations established after the 1984 Doe v. Miller settlement should apply to all the hospitals now in the system. Representatives from the hospital industry and Paul Dupre, the commissioner of the Department of Mental Health, on the other hand, say the federal regulations should be the state standard.

The Legislative Committee on Administrative Rules has been wrestling with the issue for more than a year, and voted 6-1 last week to oppose the Department of Mental Health’s plan to allow nurses to forcibly medicate a patient without a physician evaluation. But that won’t be the end of the conflict among the Shumlin administration, hospitals and advocates. The department can impose the rule (and risk getting sued) or come back to the Legislature and ask for a change in statute.

At the committee’s meeting on Thursday, commissioner Dupre told lawmakers that the rules agreed to by the state and advocates in the Doe v. Miller settlement required physicians to assess patients before and after they are involuntarily medicated. Under Centers for Medicare and Medicaid rules for community hospitals, practitioners can call a doctor once a patient is restrained, describe his or her symptoms and ask for an over-the-phone prescription.

Dupre argued the Vermont State Hospital rule is outdated because the state now allows medical professionals, including physician’s assistants and nurse practitioners, to perform many of the duties that were once the purview of doctors. Requiring physicians to evaluate every patient is “not the standard in medical care anymore,” Dupre said.

It’s impractical for a physician to be available after regular working hours for evaluations, he said. “The problem is, some people feel the need to follow the rule directly as it was at Vermont State Hospital … but the same rights and protections at the state hospital are not defined by the law,” Dupre said.

The commissioner said the proposed rule is not a change in policy because the state expanded the authority of nurse practitioners and physician assistants long ago. “In my mind, the state of Vermont has licensed these folks to do services that are the same as, or similar to, as to a physician,” Dupre said.

The problem with the phoned-in assessment and prescription from a doctor, according to state Rep. Anne Donahue, a Washington County Republican and patient advocate, is that there is no physician examination of the patient. Donahue said psychiatric patients should be seen by a doctor who can make an objective assessment on a patient’s condition before a drug is involuntarily administered.

Jack McCullough, the project director of the Mental Health Law Project of Vermont Legal Aid Inc., said the department’s proposed rule violates the legislative intent of Act 79, which requires the state to offer the same rights and protections for patients in the new decentralized state system that they had at the Vermont State Hospital.

At the state hospital, the only person authorized to order the emergency, involuntary medication of a patient was a physician, McCullough said. The department’s proposed rule removes that protection from patients in the custody and care of the commissioner. “The Vermont Supreme Court has looked at the question of commitment and involuntary medication, and it has said involuntary medication is an even greater intrusion on a person’s liberty than detention for psychiatric treatment,” he said. “It’s a big deal for a hospital hold you under physical restraint and inject a medicine into you that you don’t want to get.”

McCullough rejected the commissioner’s argument that changing the state rule is acceptable because nurse practitioners and physician assistants now do the work of doctors in other areas of medicine. “The area of medical care here is involuntary,” McCullough said. “People locked up in a facility do not have the ability to decline a service not being provided by a licensed physician.”

The second area in which the proposed rule violates legislative intent, McCullough said, is in the scope of the rule’s application. The law, he said, is clear that the regulations must apply to all persons in the care and custody of the commissioner of the Department of Mental Health. Under the proposed regulations, the application of the rule would be limited only to patients who are already on psychiatric units.

McCullough said limiting the physician assessment rule to patients on psychiatric units violates the law because “it fails to include people in care and custody of the commissioner who have an emergency medical need.” It excludes minors and patients who are treated in emergency rooms.

The Vermont Association of Hospitals and Health Care Administration has advocated a broader definition of who can forcibly administer drugs. Jill Olson, a government relations representative for the association, said hospitals have a difficult time recruiting psychiatrists.