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February 2, 2006
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Patient's capacity to refuse medical treatment.
The Independent (London, England); 2/1/2006; O'Hanlon, Kate
Byline: Kate O'Hanlon
Regina (on the application of B) v S and others ( EWCA Civ 28)
Court of Appeal, Civil Division (Lord Philips of Worth Matravers CJ, Lord Justice Thorpe and Lord Justice Rix) 26 January 2006
A patient would lack the capacity to consent to medical treatment if he was not able to appreciate the likely effects of having or not having the treatment.
The Court of Appeal dismissed the appeal of a patient against the dismissal of his challenge to a decision to medicate him by compulsion.
B had been detained at a secure hospital under sections 37 and 41 oftheMentalHealthActl983fol-lowinghis conviction of rape in 1995. He had been diagnosed as suffering from bipolar affective disorder. He had not received medication for that condition since 2003.
S, his responsible medical officer, believed that B's condition was deteriorating and wished to treat him with anti-psychotic medication, administered by injection, and a mood stabiliser. B had refused to consent to that treatment. S sought to medicate him by compulsion.
B applied for judicial review in order to challenge the legality of what was proposed The application was dismissed, and he appealed.
The following issues, inter alia, were raised on the appeal:
(i) whether the judge had erred in finding that the claimant lacked capacity' if not (ii) whether the appeal should be dismissed without consideration of the other issues, on the ground that they were academic' if not (iii) whether compulsory treatment of a patient with capacity would violate articles 3,8 and 14 of the European Convention on Human Rights or any of them, unless it satisfied the threshold requirement' and (iv) whether the judge was wrong to find that the proposed treatment constituted a medical or therapeutic necessity.
Paul Bowen and Alison Gerry (Scott-Montcrieff Harbour & Sinclair) for B' Owain Thomas (Capsticks) for S' Jeremy Hyam (Treasury Solicitor) for G' Clive Lewis and Ben Hooper (Office of the Solicitor to the Department of Health) for the Secretary of State.
Lord Phillips of Worth Matravers C J, handing down the judgment of the court, said that it was plain that a patient would lack capacity if he was not able to appreciate the likely effects of having or not having the treatment. The judge had found that that was the position so far as B was concerned in that he did not accept even the possibility that he might be mentally ill and thus in need of treatment.
B's appeal was largely founded on the premise, demonstrated to be false, that he had had capacity at the material time. That fact should not, however, result in dismissal of the appeal without considering the issues that B sought to raise.
In the light of the judge's findings that the purposes of giving medication were to alleviate B's current symptoms and to produce a stability' to improve his chances of rehabilitation' to improve his level of insight into his illness so that he could come to co-operate in his treatment plan and also engage in other therapy designed to address his insight into his offending' to increase the chances of his proceeding to a lower security setting sooner (or indeed at all)' to protect him against the chance of future relapse of his life-long condition (the prophylactic effect)' and to reduce the risk of his suffering harm at the hands of others and to reduce the risk of his causing harm to others, the judge had been entitled to consider that the treatment was in B's best interests and that it had been convincingly shown that it was a medical necessity.
The imposition of the proposed anti-psychotic medication would therefore be lawful under English law and would not infringe the convention.
Kate O'Hanlon, Barrister
COPYRIGHT 2006 Independent Newspapers (UK) Ltd.
Fresno County and its mentally ill residents face the prospect of cuts to crucial services, leaving both to grapple with the daunting cost of ... Mental health.
The Fresno Bee (Fresno, CA); 1/30/2006; Anderson, Barbara
Byline: Kerri Ginis and Barbara Anderson The Fresno Bee
A plan to reorganize mental health services throughout Fresno County could make it more difficult for residents to receive treatment for serious illnesses.
The county's Department of Behavioral Health faces a $15 million deficit, and county supervisors plan in February to discuss how to reduce costs.
Their decisions could transform a mental-health system that helps 18,000 adults with illnesses such as schizophrenia, bipolar disorder, anxiety and severe depression.
Administrators propose reducing the deficit over several years by decreasing hours at rural clinics, cutting services at the county jail, eliminating support groups and hiring private companies to take over some of the county's emergency services.
The supervisors also could take money out of reserves or from other county departments to fill the budget hole.
The department is broke after years of spending money from a reserve fund to add programs and expand services to reach populations that had long been unserved or underserved. Accounting mistakes and a lack of fiscal oversight also led to the mounting deficit.
Administrators now say the county expanded programs too quickly. The programs they propose to cut are too expensive and don't bring in enough revenue to keep up with the rising cost of employee salaries and benefits.
In 2004, supervisors bailed out the Behavioral Health Department, giving $11 million in money the county uses for everyday needs such as fixing potholes and hiring sheriff's deputies.
But the county doesn't have the money to bail out the department again. To operate in the black, the department must reduce costs, officials said.
For poor residents without insurance or those on Medi-Cal, the proposed reductions would leave them with few or no treatment options. At recent meetings of the county's mental health board, hundreds of residents implored officials to spare services they or their loved ones rely on.
Mental health advocates say the cuts could affect every resident of Fresno County. They say providing these services is cheaper for taxpayers than having to treat people at hospital emergency rooms, and the reduction in services also could lead to more mentally ill in the jail system for committing petty crimes or on the streets in need of food and shelter.
To ignore the needs of the mentally ill ends up being a greater cost to society, says Curtis A. Thornton, a member of the mental health board and father of an adult son with a mental illness.
"It very well could affect your family," Thornton says. "And what may not be your problem today could be your problem tomorrow. If one of these tragic illnesses strikes your family, you will want to have services within your county to help your family member. Just think about what you would do if you have a family member go into a psychotic episode and have no resource to go to."
The county proposes reducing hours at The Californian clinic in downtown Fresno, and clinics in Mendota, Huron, Firebaugh, west Fresno, Pinedale, Sanger and Reedley.
The only clinics that would operate five days a week would be in Selma, Coalinga and Kerman. The rest would likely operate two days a week, says Giang Nguyen, director of the Behavioral Health Department.
Nguyen originally recommended that four clinics be closed but, after concerns arose at public meetings, she revised the plan to reduce hours instead of closing clinics.
More than 2,700 residents receive care at these 12 clinics spread throughout the county; more than 8,000 residents receive care at clinics in the Fresno area.
At the clinics, psychiatrists assess problems and prescribe medication and therapists provide individual and group therapy.
In places such as Mendota and Huron, residents have come to rely on the county for services. The majority either are on Medi-Cal or have no insurance. Most speak only Spanish and need bilingual therapists. Many don't have cars.
Brenda Brown, 51, of Fresno lives with depression and paranoia.
"I just withdraw. I don't want to live," she says.
As many as three times a week, she talks to the case manager at The Californian. The case manager's support is vital to her existence, she says: "She has suggestions, and I feel safe enough to keep going forward."
Brown's case manager reminds her when she has an appointment and helps her to feel safe when she is feeling scared. When Brown was hospitalized in November, her case manager came to the hospital to make sure she was ready to come home.
In many of the rural clinics, therapists say their schedules are already full. They have to juggle regular counseling appointments with people in emergency situations.
Says mental health clinician Liz Urbano: "There's a big need for the services here, and there's already not enough hours."
The county built up rural clinics over the past seven years.
In the 1990s, money poured into the county for mental health services. The state economy was booming. More tax dollars were available to treat the mentally ill. With the extra money, the county built a reserve. By 1998, this fund topped $26 million.
Members of the mental health board wanted the county to spend the money on services. At community meetings, residents complained about the lack of care in rural towns and a shortage of help for Spanish-speaking residents.
In response, the county in 1999 opened a clinic in Selma. Others followed in Mendota, Kerman and Coalinga.
Juan Amador Jr. meets with Urbano every three weeks at a Mendota clinic.
Amador has anxiety that causes the 34-year-old to have panic attacks. He doesn't work or drive. During his therapy sessions, he talks about what is going on in his daily life and how to keep his anxiety under control. Amador says those meetings help him stay calm. He also receives help managing his medication.
"There's really no one else around who understands what my problem is," he says. "If I didn't have this, I would probably flip out. My attacks would get worse, and I would do something destructive to myself."
Out of jails, out of jobs
Concerns about the cuts go beyond the mentally ill, their families and mental health advocates. Law enforcement officials say reducing services would create a public safety issue.
At the Fresno County Jail, 600 of the 3,000 inmates have a mental illness. Almost half of the 600 inmates are on medication.
The county wants to eliminate therapy sessions that help inmates learn how to manage their illnesses once they return to society. County administrators say eliminating the jail services will save $480,000 a year. Nguyen also recently talked to the Sheriff's Department about contracting with a private company to maintain jail psychiatric services.
Sheriff's officials say they don't want jail services to disappear.
Says Assistant Sheriff Margaret Mims: "If they don't receive the services in jail, and they get out because they're eventually going to be released, they go back out into the community and the chances are very high, extremely high, that they're going to reoffend criminally, so it truly is a public safety issue."
She also says cutting the services won't save any money in the long term. Deputies must guard inmates who are taken from the jail to University Medical Center for treatment.
"It's actually overtime costs if we have to take them out there," Mims says. "So it's as if there's no cost savings. One way or another, it's going to cost the county."
Other proposed cost-saving measures include eliminating group therapy for the mentally ill. County officials say they can save $760,000 a year if they stop providing these services.
But others question the reasoning behind eliminating support groups for residents and their families.
Thornton, of the mental health board, whose son, Curtis Q. Thornton, has participated in these programs, says: "For the number of people who are touched and helped to stay well, I think it's the least expensive to maintain."
The younger Thornton, 36, diagnosed with bipolar disorder in 1991, says it took him a long time to become stable and to understand his illness and the necessity of taking medication to control it. Bipolar disorder is commonly known as manic depression.
Today, he's busy going to Fresno City College, studying to become a drug and alcohol counselor, and working part time.
He's concerned about friends who help staff the meetings. Many are temporary employees who "don't get paid a lot and they don't get benefits."
Six people would lose their jobs leading support groups.
An additional 178 county employees would be out of work under the county's proposal to contract with private companies to operate crisis programs and manage the care of people in hospitals.
The county doesn't know how much savings would result. It depends on the bids that come in. But the programs cost the county about $19 million a year.
The programs include a treatment center that stabilizes people in emergency situations; a 16-bed center to help people with serious mental health disorders; a short-term rehabilitation center and a team of employees that goes into the community in response to emergency calls.
The county also wants a private company to take over the care of about 200 people who are in hospitals, similar to skilled nursing facilities. The average stay in one of these institutions is one to two years. It costs $50,000 a year to house one person.
But union officials object to private companies taking over services.
Tom Abshere, Service Employees International Union Local 535 representative, says services will suffer because the companies will only be concerned about making a profit.
Nguyen says she's doesn't want to see county employees lose their jobs. She recently asked county supervisors to allow employees in the department to bid on providing services and be awarded a contract if they can do it as efficiently and economically as a private enterprise.
'We have to live within our means'
County supervisors recognize the department is in trouble. But it's unclear what the supervisors will do.
They're not ruling out turning services over to private companies, if it's cost-effective.
Says Supervisor Judy Case: "If it's appropriate and provides a good service to the public, then I think it's reasonable to do a comparison."
Supervisor Susan Anderson says the $15 million deficit can't be fixed in one year. She believes the proposed cuts should be phased in over three years.
Supervisor Henry Perea, who sits on the mental health board, wants supervisors to consider a countywide work furlough by asking employees to sacrifice a day's pay this year. The furlough wouldn't affect any of the county's public safety employees, but it could save the county as much as $1.2 million a day.
Board Chairman Phil Larson says the county does have some money it can put toward the deficit, although he doesn't know how much. He also hopes the state will provide the county with some money to sustain mental health services.
The board recently directed the county administrator to find available money in other departments to help ease the budget crunch this year. It also is insisting on an audit of the department to find out what led to such a huge deficit.
Says Anderson: "We have to know how we got to where we are."
The department's director, Nguyen, says she's lost sleep about the proposed service reductions. But she says: "We have to live within our means. We can no longer provide services we can't afford."
The mentally ill say they need the services.
"We just want to be healthy," says Curtis Q. Thornton. "That's all we want to do. We should have that chance to be healthy."
The reporters can be reached at email@example.com or (559) 441-6317 and firstname.lastname@example.org or (559) 441-6310.
COPYRIGHT 2006 The Fresno Bee. All rights reserved. Reproduced with the permission of the Dialog Corporation by Gale Group.
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