Providers seek changes to complex emergency detention process

October 25, 2017 10:14 AM | Sally Winkelman (Administrator)

October 25, Wisconsin Health News 

Hospitals say a bill would clarify the role and liability of providers in emergency departments when people who are having a mental health crisis are detained by law enforcement. 

The proposal got a public hearing in an Assembly committee Tuesday. 

Currently, law enforcement officers can take someone they believe to be mentally ill, drug dependent or developmentally disabled into custody for emergency detention. The person has to pose a danger to themselves or others and can’t be detained for more than 72 hours. 

A county department has to approve the need for detention and can't do so unless a mental health professional has performed a crisis assessment. 

Under the bill, law enforcement couldn’t transport an individual for detention from an emergency room until a hospital employee or medical staff member who is treating the individual approves the transfer. 

The Wisconsin Hospital Association spent almost three years negotiating with the Wisconsin Counties Association on the proposal, which they say remedies a regulatory conflict between state and federal law.

“This legislation does not change the process to initiate an emergency detention, but necessarily and correctly leans on the medical judgment of healthcare professionals in hospital emergency departments to ensure a patient transfer is medically appropriate,” Matthew Stanford, WHA general counsel, wrote in testimony.

Sarah Diedrick-Kasdorf, deputy director of government affairs for the Wisconsin Counties Association, wrote in testimony that "there was significant back and forth" between providers and counties as they developed the bill.

The counties association is comfortable with the proposal's language, she said. She acknowledged that changes to the law are difficult given the number of players involved and "an already complicated section of the statutes."

In its testimony, WHA said the bill would also address a recent attorney general opinion that found immunity for those who act in accordance with Wisconsin emergency detention statute doesn’t extend to healthcare providers. Some providers are concerned that they may be liable to a patient or third party if the county or law enforcement decides to let a patient go against medical advice, according to WHA.

“This bill provides better clarity in statute so that a healthcare provider’s liability to an individual or third party more is more clearly limited to the healthcare provider’s authority to seek, but not impose, an emergency detention on the individual,” Stanford wrote. “The bill further clarifies that a healthcare provider may fulfill a duty to warn by contacting law enforcement or the county crisis agency.”

Kit Kerschensteiner, Disability Rights Wisconsin managing attorney, has concerns about the bill since the processes around emergency detention can get complicated.

“It gets messy,” she said. “There should be more people at the table to discuss how this would work and come up with a viable solution.”  

Kerschensteiner also raised concerns about liability under the bill.

Jonathan Safran, a Milwaukee personal injury attorney, said he had concerns about part of the bill that would insert those who determine that transfer of an individual is medically appropriate into current law that governs the liability of others involved in the emergency detention process. 

“I’m not a fan at all with putting in legislation an indication of to how someone should be relieved of any potential liability,” he said. “I’m not a fan when there’s a presumption that someone acts in good faith and then I’m not a fan when it provides what one needs to prove that someone didn’t act in good faith.”

The State Public Defender’s Office provides representation for commitments under the same chapter of law that includes emergency detentions. They’re currently reviewing the bill.

“State and federal statutes and case law govern this process,” spokesman Randy Kraft said in a statement. “The SPD is cognizant of the challenge in balancing the liberty interests against the necessity to conduct needed medical procedures.”

Both the Badger State Sheriffs' Association and the Wisconsin Sheriffs and Deputy Sheriffs Association are neutral on the proposal.