By Stacey Kusterbeck
When boarding pediatric psychiatric patients for days while they wait for an inpatient bed to become available, EDs face significant legal exposure. For administrators, it is an “impossible situation,” says Genevieve Santillanes, MD, associate professor of clinical emergency medicine at Keck School of Medicine at USC.
Generally, emergency providers stabilize patients, treat any coexisting medical conditions, and treat injuries resulting from any attempts at self-harm. EDs usually do not have the resources to provide much in the way of mental health treatment. “EDs do not have access to group or individual therapy; most EDs do not have recreation therapy; and, commonly, there is no mental health provider to round on patients daily,” Santillanes observes.
Medication changes or initiation of new drugs often are deferred to the inpatient team. Departments also lack physical space to allow boarding patients to exercise or go outside. “All of this results in patients being confined without receiving specific treatment,” Santillanes says.
In most EDs, patients who are boarding are confined to a room, usually without windows, for their entire stay. In some cases, a child or adolescent is on an involuntary hold with which the family disagrees. “Families may blame the ED for limiting their rights, even if the involuntary hold was initiated by police, a mental health team, or another agency,” Santillanes says.
In some cases, parents want to take their child to receive care elsewhere because they are unhappy their child is held without receiving mental health treatment. “But EDs can’t allow patients on involuntary holds to leave,” Santillanes says.
Families, understandably, become angry in this situation. Some threaten to bring legal action against the emergency physician and hospital. If parents disagree with a hold, Santillanes says the care team should convey they are keeping the child safe. Further, providers should explain the steps they are taking to find an accepting hospital. Finally, explain that legally, the ED cannot discharge a patient who is on an involuntary hold.
Sometimes, when families are given space to express their frustration and learn the limitations, the situation de-escalates. “If families continue to disagree with the patient being held in the ED, I would definitely recommend involving risk management,” Santillanes advises.
If a child is actively receiving psychiatric care in an inpatient setting, harms (e.g., separation from family and friends, missing school) likely are outweighed by the benefits of treatment. “In the ED, routines are disrupted, but patients usually are not receiving ongoing psychiatric care,” Santillanes says.
There may be greater harm than benefit during the ED stay. Lack of sleep and lack of natural light can exacerbate anxiety, depression, and agitation. “These risks are particularly high for children with autism or developmental delays who may suffer even more when their usual routines are disturbed,” Santillanes notes.
There also is legal exposure if a pediatric mental health patient engages in self-harm or hurts someone else.
“Therefore, EDs must ensure that patients are observed and do not have access to sharps or ligatures,” Santillanes stresses.
Although it is best practice to avoid physical restraints whenever possible, patients boarding for behavioral or mental health emergencies are at risk of restraint while in the ED. “Any injuries to a patient during a restraint pose a legal risk to the ED,” Santillanes warns.
Another area of legal exposure involves elopement. If an adult patient on an involuntary psychiatric hold elopes and harms themselves or another person, the hospital may be held liable.
“If a minor elopes and is missing, the hospital is, potentially, additionally liable for the inadequate supervision of a child who was in their care,” Santillanes explains. This is because families have a reasonable expectation that a minor boarding in the ED will be monitored and kept in a safe setting.
The longer children wait, occupying staff and resources, the longer other patients have to wait. “There is a legal risk to ED providers and the hospital if a patient dies or has another bad outcome due to a delay in care,” Santillanes says.
If parents disagree with a hold, convey that staff are keeping the child safe, explain the steps they are taking to find an accepting hospital, and detail how the ED cannot discharge a patient who is on an involuntary hold. When families are informed and given space to vent, the situation can de-escalate.
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