VA Loma Linda’s use of involuntary psychiatric holds violates veterans’ rights, watchdogs allege

The VA Loma Linda Health Care System is violating the civil liberties of some veterans seeking voluntary mental health evaluations by placing them on involuntary psychiatric holds as a precondition of their transportation to a hospital or treatment facility, according to patient advocacy organizations.

The policy, advocates say, effectively prevents the veterans from refusing treatment as well as passing background checks to legally purchase and own firearms.

VA Loma Linda Associate Chief of Staff Michael J. Potoczniak outlined the directive in an Aug. 28, 2022, email to supervisors obtained by the Southern California News Group.

In the email, Potoczniak said veterans arriving at the Ambulatory Care Center for voluntary hospitalization should be placed on a so-called 5150 hold to ensure they are transported safely by ambulance to the Jerry L. Pettis Memorial Veterans Hospital Emergency Department — just more than 2 miles away — for evaluation.

“If you are transporting a veteran without a hold either using VA staffed transportation methods or ambulance, the veteran can request to leave at any moment,” Potoczniak wrote. “If you would be concerned about the patient if they did not arrive at the agreed upon location (the Emergency Department or a community psychiatric facility), the safest method is to place the hold for the purposes of transport.”

There is an opportunity for the 5150 hold — named after a section of the state Welfare and Institutions Code — to be dropped at the admitting location, Potoczniak said.

Policy draws criticism

The policy has stunned VA Loma Linda employees, who worry about the ethical and legal implications of imposing 5150 holds on individuals volunteering for treatment.

“People are dismayed and shocked that the 5150 is being misused in such a manner,” said a VA Loma Linda mental health provider who asked not to be identified because they are not authorized to discuss the issue. “A 5150 can’t be used as a transportation voucher.”

It’s illegal to use a 5150 for anything other than evaluation, assessment and crisis intervention for individuals deemed a danger to others or themselves or who are unable to provide for basic needs such as food, clothing and shelter, and unwilling or unable to accept voluntary treatment, said Rebecca Basson, lead patients rights attorney for the Law Foundation of Silicon Valley.

“I would also argue it is not ethical to knowingly misuse a legal tool to impose additional ‘safeguards’ on clients who do not meet the criteria for them,” she added.

Assembly Bill 2983, enacted in 2019, explicitly states a general acute care hospital or an acute psychiatric hospital cannot insist that a patient voluntarily seeking mental health care be first placed on a 5150 involuntary hold as a condition of admission.

Before being admitted to a designated facility, an individual meeting 5150 criteria must first be given the choice of voluntary admission and refuse prior to being placed on a psychiatric hold. If it is determined the person can be properly served without being involuntarily detained, the person must be provided evaluation, crisis intervention, or other inpatient or outpatient services on a voluntary basis, according to state law.

Revelations about the 5150 policy have surfaced amid several controversies at VA Loma brought to light by whistleblowers, including that of a grounds supervisor who was promoted after federal investigators repeatedly recommended that he be fired for employee harassment and retaliation spanning several years.

In another matter, a confidential 2022 federal report alleges VA Loma Linda mismanaged more than $1 million in patient transportation funding over a three-year period by colluding with ambulance companies through informal “handshake” agreements and unauthorized contracts.

The House Committee on Veterans Affairs is investigating widespread complaints from VA Loma Linda whistleblowers.

Veterans complain

VA Loma Linda admitted 170 veterans on 5150 holds in 2021, 293 in 2022 and 147 so far this year, according to the San Bernardino County Department of Behavioral Health.

It is not known how many of those veterans were seeking voluntary hospitalization. However, several former service members have filed grievances with the VA, according to whistleblowers.

In one of the complaints obtained by the Southern California News Group, a veteran said they specifically requested voluntary admission to the VA Loma Linda’s behavioral health unit but were instead placed on an involuntary 5150 in violation of their constitutional rights.

VA Loma Linda Medical Director Karandeep Sraon said its 5150 policy is guided by a VA directive that emphasizes the need to ensure a safe transfer for outpatient mental health veterans identified as suicidal.

“Our approach to the use of 5150 holds is grounded in California law,” he said in an email. “We consulted with San Bernardino County Patient Rights prior to implementing this guidance. Further, during a recent site visit, they not only found no concerns with our processes, but they also commended our 5150 approach as a best practice. We are proud to have their support, indicating that our processes are within legal and ethical bounds.”

Sraon’s claim about the San Bernardino County Department of Behavioral Health’s endorsement could not be independently verified. The agency said it was reviewing questions from the Southern California News Group regarding VA Loma Linda’s 5150 policy.

However, neighboring Riverside University Health System-Behavioral Health states in its 5150 training manual that detaining individuals who are willing and able to accept voluntary psychiatric hospitalization is illegal.

Arduous evaluation, treatment process

Following a 5150 hold, individuals are taken to a designated psychiatric hospital or mental health facility, where they are evaluated by medical staff to determine if they can be safely released or should be held for 72 hours to receive treatment.

The initial evaluation itself can be long and grueling, said Samuel Jain, a senior policy attorney at Disability Rights California, headquartered in Sacramento.

“The lengthy period patients can wait for an assessment can be extremely traumatic,” he said. “Many of these facilities can be loud, dirty and overcrowded. People can be placed in restraints and forcibly injected with powerful anti-psychotics. Additionally, people’s personal lives can be significantly impacted, including disruptions to work and family obligations.”

One Disability Rights client described their involuntary institutionalization as one of the worst experiences of their life, Jain said.

“At the hospital, the client was tied down with leather restraints, forcibly medicated and forced to sleep on the floor in a room with other patients,” he added. “They were not evaluated by a physician for over 24 hours. When they finally saw a doctor, they were evaluated briefly and then discharged without any community-based services or treatment plan.”

At the end of a 72-hour hold, if a medical provider believes an individual is either unwilling or unable to accept voluntary treatment, another hold can be sought for an additional 14 days.

In California, those detained on a 5150 and admitted to a designated inpatient facility because they are a danger to themselves or others is prohibited from purchasing, possessing or owning a firearm for five years. If they undergo a second 5150 within a year, the firearm ban is for life. No firearm restrictions apply to someone who undergoes voluntary treatment.

Employees revolt

Early this year, as details of Potoczniak’s policy began to trickle down, some VA Loma Linda employees began to worry that the weapon ban provision arising from the improper use of 5150 holds could unjustly affect the employment of veterans working for law enforcement agencies and security firms.

They also pondered legal and ethical questions.

Could they trust providers in the Emergency Department to discontinue the 5150 when warranted? Would the policy impact patient trust and willingness to engage in therapy? Would their mental health licenses be in jeopardy? Could they be liable if providers failed to discharge or decided to maintain the involuntary hold?

Some staff members asked to meet with leadership while others refused to carry out the directive, said a VA Loma Linda employee who asked not to be identified because they feared retaliation.

Anthony Hwang, VA Loma Linda’s behavioral health inpatient supervisor, huddled with employees in mid-March to discuss their grievances. Later, he provided them with a memo outlining the rationale for 5150 holds.

Hwang said in the memo obtained by the Southern California News Group that “true” voluntary admissions can be considered, but added if there are concerns about a veteran changing his or her mind about voluntary hospitalization a 5150 is “absolutely appropriate.”

“A lot can happen between here and the Emergency Department,” he said. “We have had patients become agitated, exit vehicles unsafely, leave the premises, harm others.”

Hwang warned that if there are “adverse outcomes,” San Bernardino County may rescind the ability of VA Loma Linda providers to become 5150 certified. “We will then be unable to assist our veterans adequately in crises,” he wrote. “If we are unable to safely transport our veterans, we may lose our ability to write 5150s.”

Basson noted that “using a 5150 to physically restrain a patient who doesn’t require that kind of crisis intervention, but might in the future, is based on an amorphous idea that people with mental health disabilities are violent, is ableist and unconscionable.”

A VA Loma Linda employee, who asked to remain anonymous, said the intent of the 5150 policy is good but it’s “poorly executed,” adding, “They need to find another way to transport those who are having a mental health crisis and need assessment.”

Ambulance companies’ role

Hwang’s memo also says ambulance companies will not transport veterans without a 5150 hold.

James “Jimmy” Pierson, immediate past president of the California Ambulance Association, said he is unaware of any regulations prohibiting ambulance companies from transporting patients without a 5150.

But patient rights advocates across the state have reported that ambulance operators are indeed refusing to pick up individuals unless they are on an involuntary hold, Jain said, adding that the practice is particularly common in Northern California.

“Disability Rights California has serious concerns about a practice whereby private ambulance providers request individuals seeking voluntary mental health treatment are placed on an involuntary hold solely for ambulance transport,” the organization said in a statement. “This common practice triggers major civil rights concerns and creates a chilling effect on individuals seeking mental health treatment on a voluntary basis.”

Disability Rights California succeeded in adding a provision to Assembly Bill 1376 explicitly prohibiting private ambulance providers from requiring a person to be placed on an involuntary hold as a precondition to transport.

The bill, which would amend state law regulating liability limitations for emergency medical services, is awaiting Gov. Gavin Newsom’s signature.

Source: Orange County Register