Ask any mental health professional the standard for a 72-hour hold and the answer is overwhelmingly, “danger to self or others.” I have tested this many times by asking a wide variety of mental health professionals during various presentations across the State. The truth is that this an overgeneralization of what is required under Arkansas law. And relying on this standard can and does lead to civil rights violations of individual with mental health diagnoses.
Okay, then what’s the standard?
A common mistake made by lay persons when reading law is that they forget to check the definitions. When reading statutes and regulations, making assumptions about the meaning of words or specific language can lead to misinterpreting the law. In regard to 72-hour holds, Arkansas law states, “A person shall be eligible for involuntary admission if he or she is in such a mental condition as a result of mental illness, disease, or disorder that he or she poses a clear and present danger to himself or herself or others.” If you stop there, you might be led to believe that “danger to self of others” is the standard.
In this case, however, the statute goes on to define, “a clear and present danger to himself or herself or others.” In order to establish “a clear and present danger to himself or herself,” the individual must demonstrate one of the following:
- The person has inflicted serious bodily injury on himself or herself or has attempted suicide or serious self-injury, and there is a reasonable probability that the conduct will be repeated if admission is not ordered.
- The person has threatened to inflict serious bodily injury on himself or herself, and there is a reasonable probability that the conduct will occur if admission is not ordered.
- The person’s recent behavior or behavior history demonstrates that he or she so lacks the capacity to care for his or her own welfare that there is a reasonable probability of death, serious bodily injury, or serious physical or mental debilitation if admission is not ordered.
- The person’s understanding of the need for treatment is impaired to the point that he or she is unlikely to participate in treatment voluntarily; and the person needs mental health treatment on a continuing basis to prevent a relapse or harmful deterioration of his or her condition; and the person’s noncompliance with treatment has been a factor in the individual’s placement in a psychiatric hospital, prison, or jail at least two (2) times within the last forty-eight (48) months or has been a factor in the individual’s committing one (1) or more acts, attempts, or threats of serious violent behavior within the last forty-eight (48) months.
“A clear and present danger to others” is established by demonstrating that the person has inflicted, attempted to inflict, or threatened to inflict serious bodily harm on another, and there is a reasonable probability that the conduct will occur if admission is not ordered.
Then why do patients across the State continue to be placed on 72-hours holds without meeting any of these criteria?
To answer this question, I interviewed a former Director of Admissions for one the largest private hospital management companies in the United States. This company has several psychiatric facilities across Arkansas. (In order to maintain anonymity, I’m using gender neutral pronouns.) They described the mentality of admission assessments for acute treatment as the “opposite of the least restrictive environment.” If an individual provides “just a hint of the ‘s’ word [suicide]” during the admission assessment, it is used to justify a 72-hour hold.
Factors that influence 72-holds include genuine concerns for the patient’s safety, liability concerns, and pressure from corporate to fill beds. Corporate reviews the “conversion rate” of each individual admission staff on a regular basis (as often as weekly) to determine if they are able to get individuals who inquire about treatment admitted. In some cases, the CEO will intervene if the admissions department believes a 72-hour is necessary, but the doctor is resistant. Thus, the pressure shifts from corporate, to admissions, to the CEO, to the doctors.
So what can you do if you or a loved one has been placed on a 72-hour hold without good cause?
First, anyone who is placed on a 72-hour hold has a right to request a hearing in front of a judge. The common misunderstanding, however, is that this hearing will occur within 72 hours. The 72 hours actual applies to the time frame the provider has to file the petition for involuntary commitment after taking the hold. And it does not include weekends and holidays. Thus, in most cases, acute patients discharge before their hearing date.
In some cases, Disability Rights Arkansas has been able to intervene. But we are limited on what we can do in these situations, because it is difficult to challenge a doctor’s professional judgement. Further, Arkansas law protects providers from civil liability unless it can be shown that they acted in bad faith, malice, or gross negligence.
One thing you can do to minimize the misuse of 72-hour holds is learn to be an advocate. Whether you are a self-advocate, advocate for others, or both, know what is required under Arkansas law and question providers who attempt to take a 72-hour holds without meeting the above criteria. Don’t be afraid to ask which of the requirements were demonstrated as required by Arkansas law.
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