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Involuntary Psychiatric Patients Argue ER Waits Are Unconstitutional

Provided by the Department of Mental Health in response to a request for public records.
The first page of a motion to dismiss filed by Jack McCullough on behalf of an involuntarily detained client.

Over the last year, about a dozen involuntary psychiatric patients have filed legal arguments claiming it is unconstitutional to make them wait in hospital emergency rooms for a treatment bed.

When psychiatric patients are deemed a threat to themselves or others and then refuse treatment, the state can force them to receive treatment against their will. But a shortage of inpatient beds means many have to wait in the ER for days to receive care.

Jack McCullough with Vermont Legal Aid said making patients wait is unconstitutional, because treatment is the only justification for their loss of liberty.

McCullough leads the Mental Health Law Project at Vermont Legal Aid, which represents most patients whom the state seeks to hospitalize involuntarily.

"If all they get is being confined to a small room with a brief visit from a psychiatrist or a doctor who may not even be a psychiatrist, I don’t see how anyone could consider that adequate treatment," McCullough said. "The state is required to ... meet the highest standards of care" to involuntary patients, he said.

As precedent, McCullough cited a 2014 decision from the Washington state Supreme Court, which found it was against that state's constitution to board involuntary mental health patients in hospitals that can not provide treatment.

McCullough said his case has not been reviewed by a Vermont court yet, because filing the motions "seems to have the effect of getting the person transferred to a psychiatric facility." However, he said, should the waits continue, he believes the courts will side with his clients.

VPR reached out to the state's Department of Mental Health and did not yet receive a response.

Emily Corwin reported investigative stories for VPR until August 2020. In 2019, Emily was part of a two-newsroom team which revealed that patterns of inadequate care at Vermont's eldercare facilities had led to indignities, injuries, and deaths. The consequent series, "Worse for Care," won a national Edward R. Murrow award for investigative reporting, and placed second for a 2019 IRE Award. Her work editing VPR's podcast JOLTED, about an averted school shooting, and reporting NHPR's podcast Supervision, about one man's transition home from prison, made her a finalist for a Livingston Award in 2019 and 2020. Emily was also a regular reporter and producer on Brave Little State, helping the podcast earn a National Edward R. Murrow Award for its work in 2020. When she's not working, she enjoys cross country skiing and biking.
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