Psychiatric "boarding" in the ED: Washington State Supreme Court hands down ruling

March 18th, 2015

A majority of emergency physicians (84%) are reporting that psychiatric patients are being “boarded” in their emergency departments (EDs), according to a poll by the American College of Emergency Physicians (ACEP). This same survey found that nine out of 10 emergency physicians (91%) state that this practice has led to distracted ED staff, ED bed shortages, and violent behavior by psychiatric patients.

This practice was put to the courts in Washington state, and the Washington State Supreme Court handed down a potentially precedent-setting ruling. The Court found that psychiatric boarding – the process by which psychiatric patients are admitted to the ED for hours or days until beds become available in a psychiatric institution – is unconstitutional and violates the state’s Involuntary Treatment Act (ITA). The ITA was passed in 1973 in Washington State to:

• Provide prompt evaluation and timely and appropriate treatment of persons with serious mental disorders;
• Safeguard individual rights; and
• Protect public safety.

The ruling stems from a 2013 case in Pierce county that involved 10 psychiatric patients who were treated in EDs not certified to deliver individualized psychiatric care. The patients challenged what they deemed a lack of appropriate care. The case eventually found its way to the Washington State Supreme Court, which ruled it illegal.

In response to the ruling by the Washington State Supreme Court, Alex Rosenau, DO, FACEP, president of the American College of Emergency Physicians today issued the following statement: “This ruling is a well-intentioned first step toward solving the problem of psychiatric boarding, but it does not identify the resources to care for a patient in acute crisis, creating potential danger for the patient and the community. People in mental health crises often seek care in emergency departments because other parts of the health care system have failed them. Necessary resources must be available to these patients, such as inpatient psychiatric beds and staff; otherwise they will continue to be at risk. While we respect the state court’s decision, federal law (Emergency Medicine Treatment and Labor Act) still prevents hospital emergency departments from discharging unstable patients — for example suicidal or homicidal patients — back into environments where they could cause harm to themselves or to others. This ruling does not provide guidance for hospitals and physicians regarding resolution of the conflicts among federal law, this state ruling, and the medical liability risk of discharging patients based on a time limit rather than based on reaching a stable condition. “The ruling is a call to action, and our main objective must be to get every patient the right level of care. The next challenge is directed to hospital and community leaders to find the resources to care for them.”

In an effort to alleviate psychiatric “boarding” in EDs, ACEP has put forth some solutions, including:

• Increasing hospital inpatient staffing and capacity;
• Providing better case management of patients to decrease psychiatric emergencies;
• Increasing outpatient capacity community alternatives;
• Using innovative psychiatry tools (tele-psychiatry & psychiatrists as hospitalists); and
• Eliminating out-of-network insurance issues.

To read further about the Washington State Supreme Court’s decision, check out the October issue of ED Legal Letter, which includes legal commentary on the decision by Robert Bitterman, MD, JD, FACEP.