This article was previously published in the March/April 2020 edition of the Advocate.
There are few things in life more challenging than struggles with serious mental illness. When that challenge rises to the level of a grave disability, or rises to the level of a danger that threatens the life of the ill friend or family member or others, it can be difficult to know where to turn for help. Fortunately, the Idaho legislature has provided a humane and comprehensive means to “press pause” in these types of severe circumstances through the adoption of the involuntary mental health hold process. This article serves as a primer of sorts on that process, exploring first the basics of Idaho’s statutory scheme, including: the different types of mental health holds; the substantive threshold that needs to be met for an involuntary mental health hold to be placed; and the types of individuals capable of placing a patient on an involuntary hold. Next, this article takes a look at the key definitions in the mental health hold statute, and a key omission from those definitions. Lastly, this article explores a few difficult scenarios that providers may need to address in the mental health hold context — a context where the decision of whether or not to place an involuntary mental health hold can have significant consequences for both patient and provider alike.
Types of Involuntary Mental Health Holds.
The Idaho legislature has adopted two types of involuntary mental health holds. First, the traditional 24-hour mental health hold set forth in Idaho Code § 66-326. Second, the 72-hour administrative hold set forth in Idaho Code § 66-320. Each is addressed in turn below.
Idaho Code § 66-326-24 Hour Mental Health Hold.
A 24-hour mental health hold without a court order can be initiated by: (1) a peace officer (in this scenario, the patient is taken into custody and placed in the hospital or mental health facility); or (2) by a physician, physician’s assistant, or advanced practice nurse (in this scenario, the patient is already at the hospital). I.C. § 66-326(1). The party initiating the mental health hold must have reason to believe that the person is either: (1) gravely disabled due to mental illness; or (2) the patient’s continued liberty poses an imminent danger to that person or others as evidenced by a threat of substantial physical harm. Id. The statute does not specifically require that the detention need occur at a mental health facility, however, the statute specifically lays out that detention must not occur in a non-medical unit used for the detention of individuals charged with or convicted of penal offenses. Id. § 66-326(1).
Evidence supporting the claim of: (1) grave disability due to mental illness; or (2) imminent danger must be presented to a court within twenty-four (24) hours from the time the individual was placed in custody or detained. If the court finds either grave disability or imminent danger, then the court will enter a temporary custody order and order an examination by a designated examiner of the person in custody to be performed within 24 hours of the temporary order being issued. The designated examiner must then report findings to the court within 24 hours of the examination. If the designated examiner finds either: (1) grave disability due to mental illness; or (2) imminent danger, then the prosecuting attorney has 24 hours from the time of the examination to file a petition for detention pending commitment proceedings. If the prosecuting attorney makes no filing within 24 hours, the patient can leave the facility.
Idaho Code § 66-320-72 Hour Administrative Hold.
In addition to the traditional involuntary hold process described above, the Idaho legislature has adopted a 72-hour administrative hold process. 72-hour administrative holds on mental health patients are available if: (1) the patient is a voluntary patient under § 66-318 and; (2) the patient is seeking to leave the facility by a request in writing. In that event, if the director of the facility determines that the patient should remain hospitalized, the patient may be detained up to 3 days (excluding Saturdays, Sundays and legal holidays) for the purpose of an examination by a designated examiner (defined above) and filing of an application for continued care and treatment (commitment). I.C. § 66-320.
Though technically available, it is difficult to envision a circumstance — particularly in Idaho’s more populated areas served by hospitals with inpatient mental health capabilities — where a 72-hour administrative hold would be used rather than the traditional 24-hour involuntary mental health hold. Indeed, it adds weight and credibility to the need for a hold when it is placed by a mental health professional following a psychiatric evaluation of the patient. Moreover, in a circumstance where a mental health professional has already determined that the above hold criteria have not been met, it seems unlikely that a facility director would, in essence, “overrule” the judgment of an educated and trained professional and place an administrative hold.
One possible exception is in Idaho’s more rural areas where inpatient mental health services are not always readily available. In those circumstances, the administrative hold is a useful tool because a facility director’s initial placement of an administrative hold may be needed to allow time for a mental health professional to arrive and perform a psychiatric evaluation of the patient.
Key Definitions and Critical Omission.
Any provider (or attorney representing that provider) evaluating a patient for the involuntary mental health hold criteria set forth above should be familiar with the following key definitions in Idaho’s mental health hold statute:
“Gravely disabled” means the patient is unable to provide for basic personal needs (food, clothing, shelter) or lacks insight into the need for treatment and unwillingness to comply with treatment that is likely to lead to an inability to provide for basic needs. Id. § 66-317(13).
A “designated examiner” is defined as “a psychiatrist, psychologist, psychiatric nurse, or social worker and such other mental health professionals as may be designated in accordance with rules promulgated pursuant to the provisions of chapter 52, title 67, Idaho Code, by the department of health and welfare. Any person designated by the department director will be specially qualified by training and experience in the diagnosis and treatment of mental or mentally related illnesses or conditions.” I.C. § 66-317(5).
“Mentally ill” means a person, who as a result of a substantial disorder of thought, mood, perception, orientation, or memory, which grossly impairs judgment, behavior, capacity to recognize and adapt to reality, requires care and treatment at a facility or through outpatient treatment.
Notably absent from the definitions set forth in the statute is any definition of “imminent” or “imminent danger.” As discussed below, this lack of statutory guidance on this critical element is a problem for both patients and providers alike and raises important questions affecting not only the patient’s health, safety, and autonomy, but public health and safety.
Practical Issues: Difficulties in Certain Cases and Statutory Immunity.
One problem a provider may face in determining whether statutory mental health hold criteria has been met is determining whether a patient is an “imminent” danger to themselves or others. As indicated above, Idaho’s involuntary hold statute lacks any definition for “imminent” or “imminent danger” — a key term in evaluating whether statutory hold criteria have been met. As an illustration, say a provider determines that a patient’s current condition does not present a threat to the patient or others in the next 0 to 24 hours, but that days after a patient’s release the patient’s condition deteriorates such that at some point in the next few days or weeks, the patient presents a threat of serious bodily harm to themselves or others. In other words, does a danger rise to the level of “imminent” if the perceived danger is a few days or weeks away? Without further clarification from the legislature, this judgment is left to the provider and can have significant consequences for the patient, provider, and facility.’
Alcohol and substance abuse can also create difficulties for providers evaluating patients with mental illness. In fact, Idaho prohibits the placement of a hold of a patient that is “impaired by chronic alcoholism or drug abuse.” Idaho Code § 66-329(13)(a). Based on this language, some Idaho providers mistakenly believe that they are not able to place a hold on intoxicated patients. This interpretation is incorrect, as the statute recognizes that alcoholism and serious mental illness often go hand in hand and clarifies that a hold due to alcoholism is inappropriate “unless in addition to such condition, such person is mentally ill.” Id. Thus, an intoxicated person that is simultaneously gravely disabled or an imminent threat to themselves or others may be appropriately held involuntarily under Idaho’s mental health hold process.
As a backstop safe harbor— likely in light of the inherent difficulties in evaluating and diagnosing mental health issues — the Idaho legislature has provided for statutory immunity for providers and other individuals placing (or failing to place) involuntary mental health holds, so long as the procedures of the Idaho hold statute were performed “in good faith and without gross negligence.” Idaho Code § 66-341.
Though minor legislative revisions can be made to improve the real-world application of Idaho’s mental health hold framework, the involuntary mental health hold process is a helpful tool that strikes the appropriate balance between patient autonomy and self-determination and patient (and public) health and safety in a difficult area of health care law.
1 Though clarification from the legislature on the definition of “imminent” would be helpful, the Webster’s Dictionary definition of “imminent” is highly suggestive of only a short period of time (hours as opposed to days), indicating that “imminent” means “ready to take place” or “happening soon.” https://www.merriam-webster.com/dictionary/imminent.