The 61-year old woman was ready to go home. Maxine was completing a hospitalization for pneumonia, diabetes and alcohol withdrawal. She lived alone with independence and pride and looked forward to returning to her daily routine of cooking, reading, and daily walks. Her doctor, however, had another discharge plan in mind.
He insisted that she be placed in a nursing home until her medical condition stabilized further. Maxine refused and the staff psychiatrists were called to examine her She was diagnosed with "Depression-Organic Delusional Disorder with Alcohol Abuse." One examiner described her as paranoid, confused, and unable to understand the serious nature of her condition.
The hospital petitioned the court to declare its patient incompetent. Maxine disagreed. She told the court that she was afraid of hospitals because "they just ignore anything I say. And that's a very frightful position to be in when you have no family or no one to look out for you." She described the hospital policy of administering multiple pills at one time. "My stomach goes nuts and my blood sugar goes crazy and-I have to go through a period of pure hell before I'm out of it again. . . . And I figure it's-it's carelessness. That is what this is. . . . And of course, anytime I demand anything then I'm supposed to be mentally ill."
Maxine told the court why living independently was important to her. "You know, I enjoy my books and music and TV and walks and stuff like that. And I don't know how to explain it to you, but if you've been alone for most of your life.. .this is your pattern of life, you know." The state's attorney wondered if she ever felt hopeless. She responded that "it depends on what I do... see, going out to get the mail is something I have to do because we have little locked boxes, and it can't sit in there very long. And I'm worried about it right now. If you don't they take it all back to the post office, you know. But anyway, no. Just to get out and walk and be with nature-even if it's raining, you know, and stuff like-I get a lot of enjoyment out of being independent." The court adjudicated Maxine to be incompetent and committed her to the Mental Health Division. She appealed.
Holding: The commitment order was overturned. The state failed to prove that Maxine's determination to return home was the product of a mental disorder. Neither was she a danger to herself nor unable to provide for her basic personal needs. The court pointed out that Maxine was initially hospitalized at her own initiative. Maxine's testimony was credited and the court honored her desire to return to her independent life. "It is not necessarily the choice that everyone would make. But it is appellant's choice. And it is not the state's prerogative under the civil commitment statutes to interfere with that choice." Maxine went home.
 | Alex L. Moschella, J.D. Adjunct Professor Suffolk University Law School |
Attorney Moschella comments: At issue in this case, and others throughout the country that take place on a daily basis, is not so much the legal issues and standards of committability and dangerousness to self and others, but the dignity of the risk issue by key decision makers in the health care delivery system.
How is it Maxine became enmeshed in a civil process to commit her, against her wishes, to a psychiatric facility for her failure to consent to admission to a convalescent facility? (Elder law attorneys know the proposed placement as a subacute facility for a transition to either the home or a long-term care facility.) If Maxine had only said yes, no one would have questioned her competency to make a health care decision. Once she said no, a conflict erupted that triggered a significant Appellate Court decision. It didn't have to go that far. There were other options that could have been considered.
What was the best and least restrictive alternative Maxine would have agreed to? A home health care plan with innovative use of geriatric care managers may have helped. The Ethics Committee of the hospital may have been a resource to avoid the civil commitment and offer creative solutions from a different interdisciplinary perspective.
A neutral temporary guardian appointed by the court to monitor and assist with placement and discharge planning may have been a better solution. This relatively non-intrusive and short term protective measure is preferable to a civil commitment and may better preserve patient autonomy.
Maxine was labeled with an "organic delusional disorder" This did not meet the court's rigorous analysis of a causal connection between the psychiatric diagnosis and evidence of dangerousness to self and others that would warrant her commitment, even if for only one or several weeks. The question still remains: who will decide when Maxine goes home?
"If Maxine failed at home or required re-admission, who is at risk and what is the risk?"
Everyone involved had Maxine's best interest in mind, but each of the major players was uncomfortable with the dignity of risk issue. If Maxine failed at home or required re-admission one more time, who is at risk and what is the risk? The all-pervasive liability issue clouds the decision when a discharge against medical advice arises in a hospital setting. The real challenge is to reflect on the health care provider's discomfort with resolving the dignity and allocation of risk issue. Maxine's right to say no was heard, but why did it require such a battle?
 | Michael Welner, M.D. Chairman The Forensic Panel |
Dr. Welner comments: A home health aide was never suggested as an option for Maxine Gjerde. Were that to have been done, and she refused, the treatment team in many hospitals would raise the issue of whether she required a guardian to attend to her medical needs. That Ms. Gjerde's hospital stay detoured onto a psychiatric unit may reveal the handiwork of a paternalistic physician.
Some legal departments-especially when the patient is verbal and feisty, discourage the medical team from pursuing the appointment of a guardian. Others, mindful of the hospital having to absorb the cost for the housing of a patient while waiting months for a guardianship hearing, will seek to dump the patient onto a psychiatric unit instead, and then pursue nursing home placement.
Inpatient psychiatry subsists at the low end of the food chain of inpatient beds, and as such absorbs social service admissions at rates that vary from hospital to hospital. This is often influenced by the priority of the consultation psychiatry department, as well as the admitting chief, to curry favor within the hospital.
Why go to all this trouble? Perhaps preoccupation with liability is not so frequently the issue in these cases. The hospital will not occur medicolegal liability if the discharge recommendations are clear but the patient is negligent. However, responsible physicians and social workers experience great trepidation for the patient who has shown irresponsible self care and frequently force these issues.
There continues to be a great divide between the law and all of medicine (not just psychiatry) over what "dangerousness" really is. Courts employ the narrow definition of dangerousness to self as "suicidal." But medical and surgical teams regularly re-admit the diabetic in ketoacidosis who is hours away from death, the hypertensive hours away from a stroke, the immobile with horribly decayed bedsores, and the asthmatic in respiratory distress. Despite thorough discharge instructions, caregivers have ample reason to fear that the next time someone calls the ambulance for the patient, care may arrive too late.
Medical staff is supported in guardianship initiatives by hospital administration when readmissions become frequent, since cost issues arise, especially in the uninsured patient. Home health care, therefore, has emerged as a humane and personal treatment option for the independently minded patient with chronic and unstable medical illness.
