Patient’s Bill of Rights

By Jason B. Ostrom

Hospitals and patients should have one com-mon goal: to treat a patient’s illness with skill and expediency. While in many, if not most, cases, this goal is held by both parties, situations arise where a patient and the treatment provider are at odds. Conflicts surrounding Terry Schiavo’s treatment made “advance directive” a household phrase and spurred headlines and heated debates. Ms. Schiavo’s situation also brought to the forefront the potential for conflict among patients, treatment providers, and decision makers.
In Texas patients have the authority to make treatment decisions before they become necessary, via the Advance Directives Act, found in Chapter 166 of the Health and Safety Code.1 A patient can instruct his treatment provider to continue or discontinue care in situations where he is suffering from a terminal condition from which he is expected to die within six months, even with available life?]sustaining treatment, or where a patient is suffering from an irreversible condition rendering him unable to care or make decisions for himself and is expected to die without life?]sustaining treatment provided in accordance with prevailing standards of care.2 A directive to continue care, however, can put treatment providers in a position of sustaining treatment that would have no effect. Amir Halevy M.D. and Amy L. McGuire J.D., Ph.D. explore the clash between patients, treatment providers, and decision makers with respect to futile treatment in their article, The History, Successes, and Controversies of the Texas Futility Policy, beginning on page 38 of this issue. The authors note that while patients (and their surrogate decision-makers) have the autonomy to refuse medical treatment, treatment providers were not vested with a similar level of autonomy.3 To remedy the predicament of the treatment providers, the Texas Legislature passed a law to be included in the Texas Advance Directives Act which delineates steps to be taken if life?]sustaining intervention is not appropriate and allows a treatment facility to discontinue life?]sustaining treatment if certain requirements are met.4 The Legislature in providing this statutory guide post for physicians struggling with following a patient’s wishes to be kept alive attempted to strike a balance of interests between patients, treatment providers, and decision makers. A similar balancing act by the Texas Legislature occurred with the passage of the “Patient’s Bill of Rights.”5
Section 321.002 of the Texas Health and Safety Code explicitly provides for the imposition of a Patient’s Bill of Rights to protect the patient from potential harms and abuses in the mental health arena.6 Specifically, Section 321.002 provides that:

(a) The Texas Board of Mental Health and Mental Retardation, Texas Board of Health, and Texas Commission on Alcohol and Drug Abuse by rule shall each adopt a “patient’s bill of rights” that includes the applicable rights included in this chapter, Subtitle C of Title 7, Chapters 241, 462, 464, and 466, and any other provisions the agencies consider necessary to protect the health, safety, and rights of a patient receiving voluntary or involuntary mental health, chemi-cal dependency, or comprehensive medical rehabilitation services in an inpatient facility.7

In response to this legislative mandate, the Texas Mental Health Code addresses patients rights’ regarding treatment under Section 576.021:

(a) A patient receiving mental health services under this subtitle has the right to:

1. appropriate treatment for the patient’s mental illness in the least restrictive appropriate setting available;
2. not receive unnecessary or excessive medication;
3. refuse to participate in a research program;
4. an individualized treatment plan and to participate in developing the plan; and
5. a humane treatment environment that provides reasonable protection from harm and appropriate privacy for personal needs.

(b) Participation in a research program does not affect a right provided by this chapter.

(c) A right provided by this section may not be waived by the patient, the patient’s attorney or guardian, or any other person acting on behalf of the patient.8

Another clear response to the directive contained in Section 321.002 of the Health and Safety Code can be found in Texas Administrative Code, Title 25, Section 404.154, which sets forth very specific rights held by each person receiving mental health services from department facilities, community centers, and psychiatric hospitals.9 The enumerated rights include those set forth above, and expand a patient’s rights to include impartial access to treatment, the right to a presumption of competency, the right to refuse a particular course of treatment, the right to meet with the professional staff, the right to seek independent psychiatric evaluation, the right to an explanation of the justification of a transfer, and the right to participate in developing a discharge plan.10

One of the more ambiguous rights added by the Texas Administrative Code is the right to be free from mistreatment, abuse, neglect, and exploitation.11 The statute does not define these terms, or limit their application. Despite this ambiguity, patients may bring suit when this right, or any other right set forth
in the Patient’s Bill of Rights, is violated.12

According to Section 321.003, a person who has been harmed by a violation may sue for injunctive relief, damages (actual damages, mental anguish without another type of injury), or both, as well as exemplary damages and reasonable attorney fees.13

A similar approach has been adopted with regard to convalescent and nursing homes, again prohibiting abuse and exploitation, but not going as far as to include mistreatment. Section 242.501 of the Health and safety code provides in part that:

(a) . . . At a minimum, the statement of the rights of a resident must address the resident’s constitutional, civil, and legal rights and the resident’s right:

1. to be free from abuse and exploitation;
2. to safe, decent, and clean conditions;
3. to be treated with courtesy, consideration, and respect;
4. to not be subjected to dis-crimination based on age, race, religion, sex, nationality, or disability and to practice the resident’s own religious beliefs;
5. to place in the resident’s room an electronic moni-toring device that is own-ed and operated by the resident or provided by the resident’s guardian or legal representative;
6. to privacy, including privacy during visits and telephone calls;
7. to complain about the institution and to organize or participate in any program that presents residents’ con-cerns to the administrator of the institution.14

Moreover, a resident’s right may be restricted only to the extent necessary to protect another resident’s right, particularly a right of the other resident relating to privacy and confidentiality; or to protect the resident or another person from danger or harm.15

The penalties for violating this statutory set of rights, however, are less severe than those available under Section 321.003, and include a civil penalty between $1,000 and $20,000 for each act of violation if the department determines the violation threatens the health and safety of a resident. Factors to consider include:

1. the seriousness of the violation;
2. the history of violations committed by the person or the person’s affiliate, employee, or controlling person;
3. the amount necessary to deter future violations;
4. the efforts made to correct the violation;
5. any misrepresentation made to the department or to another person regarding:
   (A) the quality of services rendered or to be rendered to residents;
   (B) the compliance history of the institution or any institutions owned or controlled by an owner or controlling person of the institution; or
   (C) the identity of an owner or controlling person of the institution;
6. the culpability of the individual who committed the violation; and
7. any other matter that should, as a matter of justice or equity, be considered.

Under the statute, each day of a continuing violation constitutes a separate ground for recovery.16
It is interesting to compare both the rights and recourse afforded to patients in these various healthcare arenas. The most obvious explanation for why rights were enacted in this manner is need. Reports of alleged abuse in the psychiatric care industry led to governmental investigations and the promulgation of rules, and regulations to address the problems that were discovered.17
The abuses that spurred the Texas Legislature to respond with the Patient’s Bill of Rights were varied in type and degree, but all took advantage of people who lacked the ability to protect themselves.18 Often in an effort to apprehend potential patients, psychiatric hospitals employed “bounty hunters” who would remove potential patients from their homes and transport them to hospitals where they would be detained.19 Emergency apprehension and detention orders were obtained based on diagnoses made by doctors who had never even seen the potential patients.20 It was also discovered that some hospitals were using incentives and marketing schemes to encourage patients, physicians, admission coordinators and sources of referrals to keep the patient census high.21 Once the patients were admitted to the psychiatric hospitals, it was common for the patients to be prohibited from leaving, making phone calls, or contacting an attorney for release.22 In one incredible instance, a patient was told to come to a hospital because his wife had just been admitted.23 When the man arrived he could not find his wife, the doors were immediately locked behind him, and he was held - for 28 days - until his insurance was exhausted. All for the alleged treatment of alcoholism.24 Subsequent to the man’s release, the hospital agreed that he was not, and never had been, an alcoholic.25
In addition to holding patients hostage in order to create treatment fees, some psychiatric hospitals allegedly placed pressure on patients and physicians to change patient diagnoses to increase reimbursements by insurance companies.26 An egregious example occurred in Florida when a 13-year-old girl was taken by her mother to a psychiatric hospital for treatment for drug abuse.27 The hospital failed to treat for the drug abuse, and instead rediagnosed the child as having a psychiatric disorder.28 After the child was released, she resumed her drug use and was arrested on drug charges.29 It appears that the hospital’s diagnosis was motivated by the fact that the child had only $10,000.00 of insurance coverage for a diagnosis of substance abuse and coverage of up to $1 million for a diagnosis of a psychiatric disorder.30
Similarly, patients receiving life-sustaining treatment often cannot protect themselves. As with patients in the mental health arena, patients are in vulnerable situations and must be protected from potential abuses flowing from the institutions designed to protect them. As people continue to live longer and medical treatments continue to advance, the number of people with the potential need for life-sustaining treatment increases.
A majority of the abuses in the mental health arena were designed to increase revenues for the mental health facility.31 Similarly, sustaining treatment to preserve life in a general healthcare arena may pave the way for financially motivated treatment decisions. A medical facility could improperly decide to terminate life-sustaining treatment when a patient’s health insurance expires, even if that means failing to comply with an advanced directive or a surrogate decision maker’s wishes. The bed being occupied by a terminal patient receiving life-sustaining treatment could be viewed by some as more profitable if occupied by another patient receiving more active and acute care, and thus lead to the discontinuation of the life-sustaining treatment against the expressed wishes of the patient.
It is hard to imagine that if such tactics were employed by a hospital, the Legislature could sit idly by and allow it. Just as the Patient’s Bill of Rights was enacted to provide clear and concrete guidelines for both patients and mental healthcare providers, explicit guidelines regarding a patient’s rights and recompense when an advance directive is not being followed should be established. If the same rights and remedies that exist in the mental health setting were translated into all health care settings, health care providers who chose to discontinue life-sustaining treatment might find themselves as defendants in causes of actions brought by the patient’s survivor. One would be hard pressed to argue that ceasing life-sustaining treatment when a patient or their surrogate decision-maker has elected it does not violate a right to be free from mistreatment, abuse, neglect, and exploitation. History shows that this issue will be addressed when abuses occur and reach a level of egregiousness that catapults the issue into the media, the mainstream, and consequently into the minds of the legislators.

Jason B. Ostrom is a partner at Ostrom/Sain, L.L.P. with a practice focused on litigation in the areas of probate, guardianship, and fiduciary duty.

Endnotes
1. Tex. Health & Safety Code Ch. 166 (Vernon 2005). 2. Tex. Health & Safety Code § 166.033 (Vernon 2005). 3. Amir Halvey, MD & Amy L. McGuire, JD, PhD, The History, and Controversies of the Texas “Futility” Policy, The Houston Lawyer *1, at *2--*4 (2006)(pending publication). 4. Tex. Health & Safety Code § 166.046 (Vernon 2005). 5. Tex. Health & Safety Code Ch. 321 (Vernon 2005). 6. Tex. Health & Safety Code § 321.002 (Vernon 2005). 7. Id. 8. Id. at § 576.021. 9. 25 Tex. Admin. Code § 404.154 (West 2006). 10. Id. 11. Id. 12. Tex. Health & Safety Code § 321.003. 13. Id. 14. The statute further provides for the right (8) to have information about the resident in the possession of the institution maintained as confidential; (9) to retain the services of a physician the resident chooses, at the resident’s own expense or through a health care plan, and to have a physician explain to the resident, in language that the resident understands, the resident’s complete medical condition, the recommended treatment, and the expected results of the treatment, including reasonably expected effects, side effects, and risks associated with psychoactive medications; (10) to participate in developing a plan of care, to refuse treatment, and to refuse to participate in experimental research; (11) to a written statement or admission agreement describing the services provided by the institution and the related charges; (12) to manage the resident’s own finances or to delegate that responsibility to another person; (13) to access money and property that the resident has deposited with the institution and to an accounting of the resident’s money and property that are deposited with the institution and of all financial transactions made with or on behalf of the resident; (14) to keep and use personal property, secure from theft or loss; (15) to not be relocated within the institution, except in accordance with standards adopted by the department under Section 242.403; (16) to receive visitors; (17) to receive unopened mail and to receive assistance in reading or writing correspondence; (18) to participate in activities inside and outside the institution; (19) to wear the resident’s own clothes; (20) to discharge himself or herself from the institution unless the resident is an adjudicated mental incompetent; (21) to not be discharged from the institution except as provided in the standards adopted by the department under Section 242.403; (22) to be free from any physical or chemical restraints imposed for the purposes of discipline or convenience, and not required to treat the resident’s medical symptoms; and (23) to receive information about prescribed psychoactive medication from the person prescribing the medication or that person’s designee, to have any psychoactive medications prescribed and administered in a responsible manner, as mandated by Section 242.505, and to refuse to consent to the prescription of psychoactive medications. 15. Tex. Health & Safety Code § 242.501. 16. Id. at § 242.065. 17. Gregg Timmons, Crisis in the Mental Health Care Industry: An Analysis of the Practices of Private, For-Profit Psychiatric Hospitals and the Governmental Response, 31 Hous. L. Rev. 323, 325--30 (1994). 18. Id. at 330—40. The categories of alleged patient abuse consisted of the following: (i) patient abduction; (ii) incentives to increase the number of patients at a hospital; (iii) detention of patients until insurance is exhausted; (iv) changing a patient’s diagnosis to increase reimbursement; and (v) overcharging for services and products during a patient’s hospital stay. 19. Id. at 333--34. 20. Id. 21. Id. at 334. 22. Id. at 335--36. 23. Id. at 336. 24. Id. 25. Id. 26. Id. at 337—38. 27. Id. at 338. 28. Id. 29. Id. 30. Id. 31. Id. at 333—40.

Text is punctuated without italics.

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