Where LPS Does Not Apply – Enter the Medical Hold

The LPS Hold Explained 

In 1967, the Lanterman-Petris-Short (“LPS”) Act (Welfare and Institutions Code (“WIC”) §5000, et seq.) was passed which authorized involuntary psychiatric care in very limited circumstances. Its purpose was to “end the inappropriate, indefinite, and involuntary commitment of persons with mental health disorders.” Prior to the passing of the LPS Act, a person could be institutionalized for an indefinite amount of time, with almost no regulation. 

The LPS Hold only applies when a person has a psychiatric disability, which is very narrowly construed, and when at least one of the following three criteria are met: The person (1) is a danger to themselves; (2) a danger to others; or (3) gravely disabled. (WIC §5150(a).) “Gravely disabled” is defined as someone who is unable to provide for their own food, clothing, or shelter because of a mental health disorder. (WIC §5008(h).) Provided the criteria for the LPS Hold are met, an LPS-certified provider (in Los Angeles County this includes a county-certified psychiatrist or county-certified psychologist), or a police officer, may elect to treat/hold a person involuntarily. Unless a conservator has already been appointed by a court, whether a person has appointed a surrogate decision-maker has little bearing on whether they can be held under LPS law provided that the criteria described above are met.  

Under LPS law, a person may be held for 72 hours, during which mental health professionals will evaluate the individual to determine whether they can be safely released or whether additional treatment is warranted. (WIC §§5150-5152.) If the professional determines that the person needs additional treatment, and if the person is unwilling or unable to accept voluntary treatment, then they may file another hold for an additional 14 days. (WIC §5250.)

The Medical Incapacity Hold 

The Medical Incapacity Hold (“the Hold”) was devised for situations where a patient does not have a “psychiatric” disorder as defined by LPS law, but where such a patient nonetheless poses harm to themselves or others due to a lack of decision-making capacity as the result of a medical condition. Although incredibly urgent and time-sensitive, Medical Incapacity Holds are often short in duration. Importantly, the Hold applies only in situations when no surrogate decision-makers can be identified for the patient at issue. When a patient has a surrogate decision-maker, the framework for the Hold is not implemented, and instead the surrogate decision-maker is consulted. 

For example, those who are deemed to have a “psychiatric disorder” do not include persons who experience delirium or temporary incapacity following a medical procedure. One can imagine a situation in which a person awakens from surgery, still connected to IVs and in their hospital gowns, only to exclaim, “I’m running late for my meeting downtown, I must leave immediately!” Healthcare professionals I’ve spoken with have shared horror stories whereby individuals unfit to leave the hospital and not qualified for LPS have put themselves in incredibly dangerous situations. On one occasion, a patient who left the hospital under these circumstances was found shortly thereafter walking onto the busy 405 freeway in West Los Angeles. Doctors feel an ethical obligation to hold patients in these vulnerable circumstances, and the lack of existing laws in these narrow circumstances does not eliminate their existing ethical obligation to hold such patients. Enter the Hold. 

Although there is no existing law to support the existence of the Hold, physicians have begun creating policy to fill the void in the interest of protecting patients and honoring their own ethical obligations. Those critical of the Hold frequently do not realize that in the absence of policy to address the narrow circumstances where the Hold applies, healthcare professionals are left with no direction for how to approach the situation, and instead are forced to guess and improvise. That is, without any Hold policy in place, the problematic circumstances giving rise to the Hold still exists. Hold policies seek to provide direction in those circumstances.  

A typical Hold policy entails a situation where a patient has no surrogate decision-maker and a severely impaired decision-making capacity, usually due to a medical procedure or condition. Under these circumstances, all of the following four criteria must be satisfied to warrant a Hold:  

1. The patient has no surrogate decision-maker, and no suitable surrogate decision-maker can be identified immediately.  
2. The patient must be acutely medically ill, and non-psychiatrically. This is true where a patient wakes up from a medical procedure and is delirious. 
3. The patient must lack decision-making capacity. This is true where a patient is unaware that something is wrong with them and instead thinks they are completely fine. 
4. If allowed to leave, the patient could bring great harm to themselves or others. Generally, this occurs in the context of a hospital or emergency room. 

In situations where the Hold applies, and under existing laws, the options for healthcare providers faced with such circumstances are limited: 

1: Let the patient go. This could result in a negligence or wrongful death lawsuit for letting the patient leave against medical advice and into harm’s way. Although in practice such lawsuits are few and far between, the real concern is the ethical obligation to help safeguard the patient. 

2: Detain the patient without a Hold. This is generally illegal, and could result in a false imprisonment lawsuit, although such lawsuits are also few and far between. 

3: Have an LPS-certified provider/officer agree to put the patient on an LPS Hold if LPS criteria also apply and if the local court jurisdiction will permit it.  

4: Utilize an existing Hold policy. When the four criteria for a Hold are present, a typical Hold policy may allow for any medical provider to hold the patient until: (1) they stop asking to leave; (2) they regain their decision-making capacity; and/or (3) they are no longer in a dangerous medical situation. Importantly, unlike with LPS law, any healthcare provider may be able to implement the Hold, which is important in the urgent situation where, for example, a patient is temporarily incapacitated but immediately attempting to leave the hospital. Implementation of a Hold policy also involves responsibilities for the physician, the hospital, and an option for patients to appeal their detention.

Currently, several of the University of California hospital systems have Hold policies in place, while other healthcare providers continue efforts to raise awareness for the need for Hold policies. Most recently, the California Medical Association (“CMA”) is considering endorsing a resolution involving a Hold policy proposed by Paul Schneider, M.D., a Southern California physician and bioethicist. 

Conclusion 

Ultimately, in clinical settings where no Hold exists, physicians are left without a paddle to balance the competing interests of their ethical obligations to care for their patients against their patients’ individual liberties.