HOWARD WEISS-TISMAN, Brattleboro Reformer
BRATTLEBORO -- The Secretary of Human Services wants a legislative committee to change its ruling on a proposal by the Shumlin administration that would allow more hospital staff members to order emergency involuntary medication to patients under the custody of the Commissioner of Mental Health.
Secretary Doug Racine sent a letter to the members of the Legislative Committee on Administrative Rules, or LCAR, this week requesting that the committee withdraw its objection to the proposed rule and vote in support of the change.
Under Vermont law only physicians can evaluate a psychiatric patient and forcibly administer medication against the patient’s will in emergency situations. The Department of Mental Health wants to broaden that standard and allow nurses and physician assistants to forcibly medicate a patient in an emergency. Last month LCAR voted 6-1 to reject the proposed rule.
When the Vermont State Hospital closed and psychiatric patients were sent to other sites around the state, including the Brattleboro Retreat, the Legislature passed Act 79 which said, among other things, that the patients in the new settings deserve the same rights, protections and care they would have received in Waterbury. State Rep. Dick Marek, D-Newfane and vice chairman of LCAR, said during the hearings that it was not up to the committee to expand the law, but only to decide if the proposed rule met the letter of the law.
The proposed rule would have "expanded the universe of persons permitted to authorize involuntary medication," Marek said last month, and LCAR rejected the rule by a 6-1 vote. Marek said the Legislature will most likely take the issue up when lawmakers return to Montpelier in January, but he said it was not up to LCAR to rewrite the law.
But in his letter, Racine argues that Vermont law already allows nurses and physician assistants to perform tasks once limited to licensed physicians and that a licensed registered nurse has the same signature authority that a doctor has. So, Racine argues, the patients’ rights are still protected under the proposed rule change, even though the number of people allowed to administer the emergency medication is increasing.
"The same procedural safeguards that were available to Vermont State Hospital patients have been preserved in the proposed rule, even though the individuals qualified under state and federal law to provide those safeguards have changed," Racine wrote. And Racine goes on to say that the proposed rule change also meets the federal standard for forced restraint and seclusion, which allows a physician or other licensed independent practitioner to order emergency medication against a patient’s will.
Marek said it was unusual to have a department secretary ask LCAR to reconsider a vote. He said the committee has revised its position during hearings after asking the department to make changes to its proposed rule when LCAR did have objections.
"LCAR in my experience has not reversed an objection once it files it, but there is nothing prohibiting us from reconsidering it," Marek said. "Whether it will lead us to modify our position or withdraw our objection I don’t know at this point."
LCAR’s monthly meeting is scheduled for Thursday when the members are expected to discuss Racine’s letter.
The issue is further complicated by the fact that the Department of Mental Health can order its staff to follow the rule regardless of LCAR’s decision, but that would open the state up to potential lawsuits, said A.J. Ruben, supervising attorney for Disability Rights Vermont.
"If the department promulgates this rule and a patient is harmed the whole system, the hospital and the state, is open to a legal challenge," Ruben said. "LCAR said this rule does not follow the intent of the Legislature, and that is a big problem for the state of Vermont."
Ruben said Racine’s letter fails to raise any new arguments and in his opinion only addresses issues that LCAR already debated during the hearings.
"The bottom line is that the intent of the Legislature was to reduce coercion. This is a civil rights issue," said Ruben. "We want the highest level of qualified people to make these difficult decisions and by expanding the pool of who can order this, more patients will be subjected to it from people with less training."
And Jack McCullough, director of the Vermont Legal Aid Mental Health Law Project, said Racine’s assertion that registered nurses and physician assistants already share many of the same responsibilities that physicians do should not come into play for patients who are being treated against their will.
"When people are being held involuntarily they do not have the right to ask to see someone else," he said. "The legislation says the patients in the new settings have the same rights and protections they would have had in the state hospital. We think LCAR was right in ruling as they did."
A strong case
Jill Olson, Vice President of Policy and Legislative Affairs for the Vermont Association of Hospitals and Health Systems, said Racine made a strong case in his letter.
Olson said LCAR should reconsider its vote when it meets Thursday.
"We think the rule does match the legislative intent and to me it is important when we talk about patients’ rights that we make sure people are safe," Olson said. "The way the rule is written it would create a layer of oversight. The argument is that a patient’s rights can only be protected if we staff a unit as we did at the State Hospital and we don’t think that is the only way to protect a patient’s rights."
Howard Weiss-Tisman can be reached at firstname.lastname@example.org; or 802-254-2311, ext. 279. You can follow Howard on Twitter @HowardReformer.