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Sources of Coercion: A Review of California Law

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Since I ultimately hope to make policy proposals, in the form of proposed changes to the law, to end coercive suicide prevention practices (though, of course, with no realistic hope of these being implemented in this generation), and now that I have the philosophical basis for the project at least outlined, it might be helpful to review exactly what the law is, in California at least, regarding coercive suicide prevention.

The single worst document in California law, from the anti-coercion perspective, is Kockelman v. Segal, 61 Cal.App.4th 491 , 71 Cal.Rptr.2d 552 (1998), which I will describe below in Section 2.

1. Forced hospitalization

California’s Lanterman-Petris-Short Act, located in the California Welfare and Institutions Code, is actually a relatively progressive law for people subject to mental health treatment, and regulates (but ultimately allows) forced hospitalization.

The most relevant provision of the act is the famous Section 5150, which allows the involuntary detention, for up to 72 hours, of a person when there is probable cause to believe that, as a result of mental illness, he is a danger to himself, a danger to others, or is unable to care for himself (gravely disabled). (The 72 hour hold can be extended to a 14 day hold upon an administrative hearing; longer holds, up to and including conservatorship, require increasing court involvement.)

The specification that forced hospitalization may only take place if the “danger to self” is a result of a mental illness appears to allow for the possibility of rational suicide. But, of course, in the context of a suicidal person, is it difficult to determine whether the suicide attempt or suicidal intent occurs “as a result of a mental illness.” In practice, any suicide attempt, behavior, or intent is automatically treated as if it were the result of a mental disorder, despite the obvious lack of evidence to support this practice. The most rational suicide in the world, if discovered before the attempt was completed, would certainly be hospitalized. (Socrates would be issued hospital pajamas and slippers, have his jewelry removed, and be given Prozac and group therapy.) This practice fails to accord both with the requirements of the law, important philosophical principals of self-determination, and, as I have mentioned before, the interests of non-suicidal “signalers.”

There is no opt-out. A competent, rational adult has no right to refuse to be “treated” (imprisoned and forced to remain alive).

Another important provision of the Act is the immunity it provides for people who detain and forcibly hospitalize those they think have a mental illness and are either dangerous or gravely disabled. Section 5278 provides that “Individuals authorized under this part to detain a person for 72-hour treatment and evaluation pursuant to Article 1 (commencing with Section 5150) . . . shall not be held either criminally or civilly liable for exercising this authority in accordance with the law.” This has been interpreted to mean that, as long as the detention is supported by probable cause according to a court, the person detaining the individual alleged to be mentally ill may not be sued or prosecuted for imprisoning him. This law essentially encourages police and health workers to detain people, assuring them that there will not be any consequences for interfering with another person’s freedom.

2. Duty to prevent a suicide (by coercive means if necessary)

To explain the duty to prevent a suicide under California law, I will link to the major cases and, as I have time, explain the relevance of each one to the development of a duty to use coercive suicide prevention methods.

  • Meier v. Ross General Hospital, 69 Cal.2d 420 (1968).

    An early case establishing the liability of a hospital for the wrongful death of a patient who commits suicide while involuntarily committed to the hospital’s care.

  • Nally v. Grace Community Church, 47 Cal.3d 278 , 763 P.2d 948; 253 Cal.Rptr. 97 (1988).

    The California Supreme Court found that a member of the clergy, as a “non-therapist counselor,” owed no duty to prevent the suicide of a congregation member he was counseling by referring him to a licensed counselor, even where the suicide was foreseeable. Nally seemed like a victory against coercive suicide prevention practices; Chief Justice Lucas, in his opinion, even quotes an earlier case, Bellah v. Greenson, 81 Cal.App.3d 614 , 146 Cal.Rptr. 535 (1978), in which the court (in dicta) explicitly recognizes the reasons that coercing counselors to use coercive suicide prevention methods could be harmful to patients:

    Similarly, Bellah recognized that creating a duty on the part of a psychiatrist to breach the confidence of a doctor-patient relationship by revealing disclosures made about the suicidal intent of his patient would unduly extend the Tarasoff holding, and “could well inhibit psychiatric treatment.” (Bellah, supra, 81 Cal.App.3d at p. 621.) Bellah reasoned that in Tarasoff, we held only that “where a therapist knows that his patient is likely to injure another and where the identity of the likely victim is known or readily discoverable by the therapist, he must use reasonable care to prevent his patient from causing the intended injury. Such care includes, at the least, informing the proper authorities and warning the likely victim. However, [Tarasoff] did not hold that such disclosure was required where the danger presented was that of self-inflicted harm or suicide. … Instead, [Tarasoff] recognized the importance of the confidential relationship which ordinarily obtains between a therapist and his patient, holding that ‘… the therapist’s obligations to his patient require that he not disclose a confidence unless such disclosure is necessary to avert danger to others. … (Tarasoff, supra, p. 441, italics added.)'” (Bellah, supra, 81 Cal.App.3d at pp. 620-621.) [Nally at 295, quoting Bellah. The Tarasoff case mentioned is the famous California case imposing liability on a psychiatrist for failing to violate confidentiality and disclose his client’s intention to harm a third party. Emphasis mine.]

    Nally, however, interpreted Bellah (again in dicta) as recognizing a duty owed by a psychiatrist or licensed counselor “when a psychiatrist’s (or hospital’s) treatment of a suicidal patient falls below the standard of care for the profession, thus giving rise to a traditional malpractice action.” (Nally at 296). Presumably, the “standard of care” could include coercive means.

  • Kockelman v. Segal, 61 Cal.App.4th 491 , 71 Cal.Rptr.2d 552 (1998).

    The locus of the duty to use coercive means to prevent a suicide is most clearly found in Kockelman, one of the most harmful opinions in the State of California for purposes of counselor-patient relations. Any hopes raised in the Nally opinion were dashed in Kockelman.

    The Kockelman court allowed a woman whose husband committed suicide during the course of outpatient treatment to sue his treating psychiatrist for wrongful death, apparently for failing to prevent his suicide. The court reasoned that whether the doctor had violated the professional standard of care was a question of fact that would have to be determined at trial. Given the facts of the case, it is difficult to see what the court could mean that the doctor could have done, short of using coercive means (forced hospitalization) to prevent the suicide. An excerpt from the factual background:

    Kockelman kept his appointment on September 2, 1993. He reported he was not doing much better, although he appeared neatly dressed and clean-shaven. Dr. Segal wrote that it was “mysterious” to him how Kockelman could rouse himself when needed and at other times could not get out of bed. But again he found it impossible to engage Kockelman in any psychodynamically oriented dialogue. He recommended increasing the Prozac dosage and restarting the lithium, but noted he did not feel “very optimistic” that this would make a difference. He discussed the possibility of ECT with Kockelman and noted he would see what could be arranged.

    Kockelman died on September 5, 1993, three days after his last appointment with Dr. Segal, from an overdose of desipramine. Valerie Kockelman stated that her husband was feeling more energetic and cheerful the last week before his death and had gone to work each day. She said “it was like he was a new person.” They were planning a car trip to visit their daughter in Santa Rosa on the Saturday of a Labor Day weekend, and he was looking forward to it. On Saturday morning Kockelman told her he wanted to stay home and he urged her to go by herself. He did not seem depressed to her and appeared to be in good spirits. He told her he just wanted to “rest up.” She left Saturday and when she returned home the following evening she discovered her husband’s body. [Kockelman at 497. Emphasis and link mine.]

    Apparently, psychiatrists must not only be their patients’ jailers; they must also be mind readers. Also: be sure to hospitalize anyone who looks cheerful!

  • Cruze v. National Psychiatric Services, Inc., 105 Cal.App.4th 48, 129 Cal.Rptr.2d 65 (2002).

    A terminally ill woman was involuntarily hospitalized by her physician after she discussed the possibility of committing suicide. The court denied her right to sue her physician for malpractice, basing its decision on the immunity granted by Section 5278 of the California Welfare and Institutions Code (explained above).

  • Jacobs v. Grossmont Hospital, 108 Cal.App.4th 69, 133 Cal.Rptr.2d 9 (2003).

    The California Court of Appeal confers a bit of hope, this time by determining that the grant of immunity in Section 5278 of the Welfare and Institutions Code (explained above) is not absolute, and does not protect a hospital from claims resulting from improper care. This is still not terribly good news, as it might be used to sue a hospital or other person for failing to use means that were coercive enough. But at least it imposes a duty of care on people who involuntarily detain others.

  • Hernandez v. KWPH Enterprises, 116 Cal.App.4th 170 , — Cal.Rptr.3d — (2004).

    In Hernandez, a recent California Court of Appeal case, the court found that an ambulance service owes no duty of care to a voluntary patient its employees are transporting when the patient exhibits bizarre behavior and then runs away from their custody. (The patient in this case ran onto a highway and was hit by a car and killed.) In my opinion, the court was correct in refusing to impose liability on ambulance personnel for failing to coercively prevent a suicide (or perhaps accidental death). The case does not go far enough, of course, but it signals a good trend. It could have been much worse.

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Written by Sister Y

June 18, 2008 at 9:45 pm

2 Responses

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  1. So, am I permitted or required to stop the suicidal person by taking steps, which include breaking confidentiality?

    Anonymous

    April 30, 2009 at 2:39 am

  2. Legally or morally?

    Depending on who you are, you may be legally required to break confidentiality to prevent a suicide.

    Morally, I think we’re required not to in most cases.

    Sister Y

    April 30, 2009 at 3:16 am


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