Getting more say: Families want laws changed in mental health system, Minot Daily News, January 5, 2004

"We need laws in North Dakota to protect the patient," she said. "Keeping the illness confidential from the family is not protecting the patient. ... Something has to be done to get the family involved or there are going to be more suicides, more tragedies.".

For 7-1/2 years, Kim Montgomery of Minot has sought closure on her father's suicide.

Her efforts to bring justice to what she calls a preventable death have resulted only in additional frustration with a mental health system that she believes failed her father. If she can't get healing for her grief, Montgomery hopes she can at least loosen medical confidentiality laws to spare another family what she's gone through.

"I don't want a tragedy like this to happen to anyone else," she said.

Meanwhile, Sheree Spears of Des Moines, Iowa, also is talking to N.D. legislators about easing the legal requirements for involuntary hospital commitments because of the near-suicide of her son in Fargo.

Consumer advocacy groups get nervous about proposed law changes that appear to whittle away at patient protections such as confidentiality and self determination. However, some advocates are saying the time is right to look at whether current laws are helping or hindering consumers in getting appropriate care.

"The big question is how many tragedies do we have to have before people with mental illnesses get good care," said Janet Sabol of Minot, coordinator for the Northwest North Dakota affiliate of the National Alliance for the Mentally Ill.

"We have to get the discussion going," she said. "We need to inform the public what's happening in the mental-health area."

Allan Stenehjem, executive director for the Mental Health Association of North Dakota in Bismarck, said his group is open to reviewing the law but feels strongly about safeguarding patients' rights. If there's to be a break in confidentiality or an involuntary commitment, there needs to be substantiation for it, he said.

Montgomery believes substantiation existed in her father's case. He committed suicide three days after his release from the hospital that now is Trinity-St. Joseph's.

After hiring an attorney to obtain her father's medical records, Montgomery learned her father hadn't been taking medicine, talked about suicide and had a difficult time throughout his 3-1/2 weeks of hospitalization. Nowhere in the records did it indicate that her father was doing well, which is what the doctor told the family upon his release, she said.

"They took precautions in the hospital," she said, "but they took no precautions to protect us or my father when he was released."

Trinity officials declined to comment on the case because of patient confidentiality.

A forensic expert's report based on a review the medical records was that Montgomery's father's death "was preventable with aggressive psychiatric treatment, adequate communication with family members and intensive out-patient followup care and treatment."

Despite that finding, the State Board of Medical Examiners determined the physician didn't commit gross negligence as defined by state law. The board declined to initiate disciplinary action. Nor could Montgomery's family find an attorney willing to take their case.

Montgomery said her family also had difficulty getting assistance through the State Protection and Advocacy Office.

The law says a doctor can be held responsible for breaking confidentiality - but not for failing to break confidentiality to protect the patient, Montgomery said. She's concluded that law needs to be changed.

"We need laws in North Dakota to protect the patient," she said. "Keeping the illness confidential from the family is not protecting the patient. ... Something has to be done to get the family involved or there are going to be more suicides, more tragedies."

Sabol said advocacy agencies don't object to breaking confidentiality to protect people.

"If you are advocating for the consumer, you want the consumer to live. You want them to be well enough to participate in the community at whatever level they are able," she said.

Sabol said a common characteristic of many mental illnesses is that the patient doesn't realize he or she is ill. Because of their mental conditions, some patients won't sign a medical release form to enable a family member to be part of their care, she said. That might keep a patient from getting the best care, she said.

"What NAMI is trying to get across is that family members really are an important part of the treatment team," Sabol said.

Another problem, she said, is that families don't often know about availability of the release form.

Trinity-St. Joseph's officials say that all patients receive a release form upon discharge so that medical information can be transferred to follow-up caregivers. That form also lets patients designate any others to receive that information.

Tom Bennett, director of Trinity Health's outpatient behavioral health, and Ron Meier, director of Trinity-St. Joseph's mental health services, said families are included in treatment plans and receive hospital discharge information.

"Most doctors are fairly liberal with that information if they think there's a safety issue," Bennett said.

Meier said it's good to review the laws affecting mental-health services once in a while. However, he added, it's difficult to support changes that take away from consumer rights.

"It's a complex issue," he said. "The patient is the one we are dealing with and we have to respect his wishes and his rights."

Spear said most consumers want someone to look out for their best interests when they aren't well enough to make decisions for themselves.

She faced a dilemma about two years ago when her son's condition deteriorated after he quit taking his medicine. She wasn't able to commit him to a hospital because she couldn't prove he was dangerous to himself or others.

"The laws really barred us from getting him help," she said. "The window where you can commit somebody is so small. They have to have the gun in their hand so you can prove intent, but not yet pull the trigger. What has happened is a lot of people have actually died. These are preventable deaths."

Her family was lucky. In June 2001, her son broke into his grandparents' gun cabinet but a family member walked in and intervened before he could shoot himself.

Spear now is lobbying for legislation to permit a court committal when there's a substantial deterioration in mental health that is detrimental to that person and others, regardless of whether they might be dangerous.

Meier said families do have the option of pursuing court-ordered outpatient care or partial hospitalization, which is easier to obtain than a hospital commitment. Once outpatient care is obtained, there's a better opportunity for getting any necessary hospitalization, he said.

Spear also would like greater use of court orders to force noncompliant patients to take their medicine.

"When you get them to the point where they are safe and stable, why not keep them there?" Spear said. "Anyone who says you can take away somebody's rights by forcing them to take medicine - the medicine that's required for their illness - they have a lack of human compassion."