ORIGINAL RESEARCH


Why Are Patients Discharged by Review Boards?

Richard L O’Reilly, MB1, William Komer, MD2, Sandra Dunbar3


Objective: To identify why Review Boards revoked certificates for involuntary hospitalization.

Method: The outcome of all applications for a Review Board hearing at 2 psychiatric hospitals in Ontario were recorded from the beginning of 1987 to the end of 1996. All cases where a certificate of involuntary hospitalization was revoked were identified. For each of these cases, the clinical record, including the Review Board’s written reasons for its decision, was reviewed.

Results: During the study period, 2644 patients applied for a review of their involuntary hospitalization. Only 42% of applications reached a hearing. Of these, 9% were revoked. Several recurring reasons for overturning certificates were identified. These included the physician relying too much on hearsay evidence, relatives supporting discharge at the hearings, and the patient clearly having recovered by the time the hearing took place.

Conclusions: Relatives or staff who observe dangerous behaviour should be encouraged to give evidence at hearings. The treatment team should take careful note of the views of patients’ families and friends and review the patients’ progress before hearings.

(Can J Psychiatry 1999;44:259–263)

Key Words: Review Boards, revoked certificate, Mental Health Act

Background

The Ontario Mental Health Act (1) stipulates that patients who suffer from mental disorders “of a nature or quality that likely will result in (a) serious bodily harm to the person, (b) serious bodily harm to another person, or (c) imminent and serious physical impairment of the person” may be detained in a psychiatric unit against their wishes. Patients have the right to have this decision reviewed by an independent committee, the Consent and Capacity Board (CCB), formerly known as the Ontario Regional Review Board. The CCB usually consists of 3 individuals (a lawyer, a psychiatrist, and a layperson) and is authorized to review determinations of financial and treatment competency in addition to involuntary hospitalization.

The CCB operates under the “Rules of Tribunals” as stipulated by the Statutory Powers and Procedures Act (2). These rules create an adversarial process, which is not quite as formal as court. Persad and Kazarian recently reported considerable physician dissatisfaction with Review Boards (RBs) (3). Revoking a certificate is a serious issue, indicating either a conflict in the assessment of the case between the RB and the psychiatrist or a major procedural error. Moreover, it usually results in a precipitate and unplanned discharge and often disrupts the physician–patient relationship by conveying to the patient the impression that his or her doctor was excessively restrictive or had made a clinical or legal error.

Adams and others reported that 31% of applications to RBs at the North Bay Psychiatric Hospital in Ontario resulted in the certificate being revoked (4). Paredes and others indicated that 35% of applicants to RBs at the Riverview Hospital in British Columbia had their certificates revoked (5). Myers studied mental health review tribunals in the United Kingdom and reported that 34% of patients who applied to these tribunals were discharged (6).

The reasons given by RBs for revoking certificates were not reported by Adams or Paredes in the Canadian studies. Higenbottam, however, did note that discharge by RBs from the Riverview Hospital was associated with several demographic and clinical variables (7). Although anecdotal information from single case reports identifies reasons for mental health certificates being rescinded (8), we are unaware of any systematic study of this issue in Canada. We therefore undertook such a study in the (recently amalgamated) London and St Thomas Psychiatric Hospitals in the belief that an understanding of why RBs revoke certificates would assist psychiatrists in preparing for and presenting at RBs and thus result in improved service for their patients.

Subjects

We identified all patients at London Psychiatric Hospital (LPH) and St Thomas Psychiatric Hospital (STPH) who had a certificate revoked by an RB during the 10-year period from January 1987 to December 1996. The hospitals are situated 30 km apart and provide tertiary care for most of southwestern Ontario. STPH is unusual in that it also is the sole provider of secondary care for some regions of the catchment area, such as Elgin County. As is the case for most psychiatric hospitals, the inpatient population of both hospitals has been slowly decreasing. At the start of the study period, LPH had 473 beds, and STPH had 454 beds; by the end, the hospitals had 323 and 262 beds respectively.

Method

A record of the outcome of all applications to the Ontario Regional Review Board and the CCB was available at both hospitals. In those cases where a hearing was held, the patient’s chart contained a written explanation from the RB of its decision. In all cases where a patient had a certificate of involuntary admission revoked during the study period, their chart was reviewed by one of the authors (RO’R). Data was collected on each patient’s demographic characteristics, diagnoses, type of certificate, and on the specific criteria on which his or her involuntary admission was based. The reasons given by the RB for revoking the certificate were carefully reviewed and recorded.

Frame_53.JPG
Figure 1. Number of hearings held (1987–1996) and hearing outcomes

Results

During the study period, 3083 patients applied for a RB hearing. Of these applications, 296 challenged a determination of treatment incompetency, 143 challenged a determination of financial incompetency, and 2644 challenged a determination of involuntary hospitalization. Of the 2644 applications to review involuntary status, the patient withdrew the application in 858 cases, in 670 cases the psychiatrist cancelled the certificate, and only 1116 (42%) of applications actually proceeded to a hearing. Of these hearings, the certificate was revoked in 105 (9%) cases. Four patients had certificates revoked on 2 separate occasions and 1 patient on 3 occasions. Over the study period, the percentage of revoked certificates gradually decreased (Figure 1).

The number of patients applying for RB hearings from LPH was approximately twice that from STPH, which reflects the fact that LPH is larger and probably that it provided exclusively tertiary care. The pattern of outcome, however, was similar for both hospitals. Of the 105 revoked certificates, 66 were from LPH and 39 from STPH.

Fifty-three percent of the patients who had certificates revoked were male. The ages of patients who had certificates revoked ranged from 14 to 78 years, with a mean of 35 years. The primary diagnoses for these patients are shown in Table 1. Some patients had a diagnosed personality disorder in addition to their primary diagnosis. Overall, 30% of patients had a personality disorder as a primary or secondary diagnosis.

Table 1. Diagnoses of patients whose certificates were revoked

Diagnosis

n

Schizophrenia

33

Personality disorder

25

Affective disorder

21

Other psychosis

9

Substance abuse

2

Other

15

Risk of imminent and serious physical impairment was the most frequently cited reason (59% of all cases) for certification, serious bodily harm to another person the next (51%), and serious harm to the person the least (39%). In many cases, multiple reasons were cited (Table 2).

Table 2. Criteria used for certification

 

%

Suicide risk

16

Harm to others

18

Physical impairment

25

Combination of any 2 criteria

31

All 3 criteria used

10

When present (all but 7 cases), the written RB report was usually explicit in identifying reasons for overturning a certificate. In a few cases, however, the summary required some interpretation. Nevertheless, there were many clearly recurring themes (Table 3). Since more than 1 reason was sometimes cited, the total number of reasons exceeds the number of cases. Only 5 cases were rescinded based on technicalities (Table 4).

Table 3. Reasons for certificates being revoked

Reason

n

Review Board felt evidence was insufficient

33

Patient clearly improved by time of Review Board appearances

19

Significant other stated at Review Board that they would assist patient in the community

13

Physician agreed that patient did not meet the criteria for certification

9

Review Board noted lack of past history of violence

9

Patient’s privileges were incompatible with identified risk

6

Intractability of diagnosis appeared to have been considered

6

Harm under “imminent physical impairment” deemed insufficient/inappropriate

6

Technicality

5

Major evidence was hearsay

4

Substance abuse/personality disorder not viewed as mental disorder (as defined by the Act)

4

A less restrictive remedy was available

3

Patient agreed to stay in hospital

3

Review Board summary not available

7

Table 4. Technical reasons for certificates being revoked

1. The Review Board indicated that it would have upheld certification on the criteria of “risk to others,” but this was not argued.

2. Not explicit, but Review Board hinted that it would have upheld certification on “risk to others” if hospital had argued this case.

3. The wording on a Form 4 did not mirror the wording in the Act.

4. The word “potential” stated to be incompatible with the word “likely” when referring to risk.

5. Form 3 used while patient was on a leave of absence. The Review Board stated that the patient was really discharged and that a Form 1 should have been used.

Discussion

It is notable that the percentage of revoked certificates in our study is much lower than that reported by previous authors. Differences in local practice, both by the psychiatrists and by RBs, could account for this disparity. The London and St Thomas hospitals have made a concerted effort through continuing medical education to improve physician skills in preparing for and presenting at RBs, and this may have contributed to the very low rates of patients discharged by RBs in recent years.

The most frequent reason for revoking certificates was that the RB felt that the evidence to justify continued involuntary hospitalization was insufficient. In many of these cases the evidence was disputed. While there were many different areas of conflict, we noted that many physicians had particular difficulty in understanding the importance the RB was likely to attach to opinion versus established fact. While it was impossible, based on the available data, to systematically determine if the decision to revoke the certificate was correct, we noted that some patients who exhibited violent behaviour were discharged because the physician did not optimally present the evidence. For example, the nursing notes may state “patient secluded because of disturbed behaviour” when the patient punched one patient and threw a chair at another. Physicians are seldom present at these incidents, and the impact of the evidence is markedly reduced if the physician relies on secondhand descriptions of behaviour recorded in the notes. Careful documentation of serious incidents is clearly important, but the authors also recommend the presentation of evidence at RBs by ward staff or family members who witnessed acts of violence or self-harm.

Most functional psychoses and affective disorders improve with treatment. Thus, it is not surprising that many patients had recovered or partially recovered before their RB hearing. In some cases, it was difficult to ascertain why the attending physician had not changed the patient’s status to voluntary. In other cases, it was clear that, while the patient’s condition had improved and the risk they posed to themselves or others had lessened, they remained unwell and would have greatly benefited from further inpatient treatment. This was explicitly recognized by the RB in many of the written reasons for their decisions.

Many patients, as a result of impaired insight, had an established pattern of noncompliance with medication as outpatients. Is it appropriate to discharge such patients when treatment has rendered them to function at a minimal level, where they are “not likely” to cause themselves or others harm? While much has been written about possible solutions to the problem of “revolving-door” patients (9), we believe that, for many patients, only a change in mental health legislation, such as the introduction of community treatment orders (10), is likely to ensure that they receive optimal treatment.

Many certificates were revoked when a relative or friend indicated at the hearing a willingness to provide the patient with accommodation or other support. On many occasions, the offer to support the patient in the community represented a late change of mind by a relative. Thus, the treatment team must determine the views of significant others and review their position just prior to the hearing.

In 4 cases, RBs indicated that the patient’s diagnosis did not qualify as a mental disorder as conceptualized in the Mental Health Act. Three of these cases were of alcohol or substance abuse, and 1 was a personality disorder. However, it appeared to the authors that there were several other cases where the RB had implicitly considered the intractability of the underlying mental illness in deciding to revoke certificates. Thus, impulsive behaviour associated with brain damage and episodes of deliberate self-harm associated with personality pathology sometimes appeared to be minimized by the board. While there is no place in law for such a distinction, this approach acknowledges that, in certain conditions, there is no clinical benefit from prolonged hospitalization.

In 6 cases, the potential impairment that led to using the Act’s third criterion was interpreted by the RB as being psychological rather than physical in nature or as not being sufficiently serious (for example, the possibility of becoming pregnant or contracting venereal disease from unprotected sex).

In 6 cases, the RB noted that the patients’ privileges were incompatible with the feared harm. This usually involved a patient having hospital or community privileges while being detained because of a perceived risk of suicide. In the most extreme case, a patient with borderline personality disorder was allowed passes to continue her daytime job while certified to be a danger to herself.

In 3 instances, the RB indicated a less restrictive option to certification. In one case, possible harm to a patient’s children was unlikely; the children had already been placed in care. In the other cases, the RB suggested a “barring order,” where a specified individual was believed to be at risk. Although not always appropriate, physicians should consider these alternatives, particularly for patients with intractable problems such as personality pathology.

While we had anticipated that more certificates would be revoked on technicalities, we identified only 5. Though uncommon, every effort should be made to avoid such cases. Moreover, a physician can recertify a patient if a certificate is revoked because of a technicality and a serious risk persists.

The following checklist may help physicians prepare for an RB:

1. If a patient’s clinical condition has improved, consider whether he or she still meets the criteria for certification.

2. Review the opinions and positions of the patient’s significant others shortly before the RB meets.

3. Consider whether less restrictive options to certification are available.

4. Use witnesses to directly describe the patient’s behaviour or recount the patient’s statements rather than relying on hearsay.

5. If there is uncertainty about a patient meeting criteria for certification or about the likely usefulness of certification, request a colleague to provide a second opinion.

6. The RB’s decision to revoke a certificate can be appealled through the courts. Moreover, if the certificate is revoked because of a technicality, the physician should consider immediate recertification if the patient still meets the criteria for involuntary hospitalization.

Clinical Implications

  • A sizeable minority of patients who challenge involuntary hospitalizations are discharged by Review Boards (RBs).
  • Physicians often have difficulty optimally presenting the case for continued involuntary hospitalization.

Limitations

  • It was not possible to determine if the decisions of the RB were correct or incorrect.
  • No follow-up on outcome of discharged patients was possible.
  • Results may not be extrapolated to other areas because of regional differences in medical and legal practices.

Acknowledgements

The authors thank the staff in the Clinical Records Department at the London and St Thomas Psychiatric Hospitals for their extensive help.

References

1. Ontario Government (1996) Mental Health Act. Revised Statutes of Ontario, 1990, Chapter M.7 as amended by 1992, Chapter 32, s.20; Ontario Government (1997) Statutory Powers and Procedures Act. 1993, Chapter 27, Sched. And the following Regulations (as amended): Application of Act (R.R.). 1990, Reg. 741) Grants (R.R.O. 1990, Reg. 742), Amended 1996/03/26. Toronto (ON): Queen’s Printer for Ontario; 1996.

2. Ontario Government (1997) Statutory Powers and Procedures Act. Toronto (ON): Queen’s Printer for Ontario; 1996.

3. Persad E, Kazarian SS. Physician satisfaction with Review Boards: the provincial psychiatric hospital perspective. Can J Psychiatry 1998;43:905–9.

4. Adams SJ, Pitre NL, Cieszkowski R. Who applies to regional review boards and what are the outcomes? Can J Psychiatry 1997;42:70–6.

5. Paredes J, Ledwidge B, Beyerstein D, Cashore J, Higenbottam J. The review-panel progress: interpretation of the findings and recommendations. Can J Psychiatry 1987;32:444–7.

6. Myers DH. Mental-health review tribunals: a follow-up of reviewed patients. Br J Psychiatry 1997;170:253–6.

7. Higenbottam J, Ledwidge B, Paredes J, Hansen M, Kogan C, Lambert LA. Variables affecting the decision making of a review panel. Can J Psychiatry 1985;30:577–81.

8. Jaychuk G, Manchanda R, Galbraith DA. Consent to treatment: loophole in the Ontario Mental Health Act. Can J Psychiatry 1991;36:594–6

9. Geller JL. A historical perspective on the role of state hospitals viewed from the era of the “Revolving Door.” Am J Psychiatry 1992;149:1526–33.

10. Mulvey EP, Geller JL, Roth LH. The promise and peril of involuntary outpatient commitment. Am Psychol 1987;42:571–84.

Résumé

Objectif : Savoir pourquoi les conseils de révision ont invalidé des certificats d’hospitalisation involontaire.

Méthode : On a documenté les résultats de toutes les demandes d’audience auprès des conseils de révision de deux hôpitaux psychiatriques de l’Ontario, du début de 1987 à la fin de 1996. On a recensé tous les cas d’invalidation de certificat d’hospitalisation involontaire. Dans chacun des cas, le dossier clinique, y compris les motifs des décisions consignées des comités d’examen, a été examiné.

Résultats : Durant la période à l’étude, 2644 patients ont demandé la révision de leur hospitalisation involontaire. Seulement 42 % des demandes ont obtenu une audience, et de ces dernières, 9 % ont été invalidées. On a recensé plusieurs motifs répétés d’invalidation : trop grande importance accordée par le médecin au ouï-dire, demande de congé des proches lors des audiences, rétablissement évident du patient au moment de la tenue de l’audience.

Conclusions : Il faut encourager les proches ou le personnel qui observent des comportements dangereux à présenter des preuves aux audiences. L’équipe de soins doit noter attentivement les vues des amis et des proches des patients, et évaluer le progrès des patients avant les audiences.

This study was presented as a poster at the Ontario Psychiatric Association Annual General Meeting in Toronto in January 1998.

Manuscript received April 1998, revised, and accepted July 1998.

1Coordinator of Research and Education London/St Thomas Psychiatric Hospital; Associate Professor, Department of Psychiatry, University of Western Ontario, London, Ontario.

2Forensic Psychiatrist, St Thomas Psychiatric Hospital, St Thomas, Ontario.

3Clinical Audit Coordinator, London/St Thomas Psychiatric Hospital, London, Ontario.

Address for correspondence: Dr RL O’Reilly, London/St Thomas Psychiatric Hospital, 850 Highbury Avenue, London, ON  N6A 4H1

email: roreilly@julian.uwo.ca

Can J Psychiatry, Vol 44, April 1999