Mental Health Workers Seek to Ease Their 'Duty to Warn' | Politics | Seven Days | Vermont's Independent Voice

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Mental Health Workers Seek to Ease Their 'Duty to Warn'


Published February 1, 2017 at 10:00 a.m.
Updated February 2, 2017 at 9:53 a.m.

  • Thom Glick

In February 2011, 21-year-old Evan Rapoza walked into the basement of a St. Johnsbury apartment building where Michael Kuligoski was fixing the furnace. Rapoza attacked the 50-year-old repairman with a pipe wrench, strangled him with a belt and tried to drown him in a bucket of water. Rapoza, who suffered from paranoid schizophrenia, had never met the older man.

Kuligoski survived, but he has "very severe, permanent disabling injuries" and will never work again, according to his family's attorney, Richard Cassidy. Rapoza was deemed mentally unfit to stand trial.

Now, six years after the attack, the name "Kuligoski" can be heard around the Vermont Statehouse as lawmakers and mental health providers grapple with fallout from the assault.

Kuligoski's family sued the Brattleboro Retreat and Northeast Kingdom Human Services, both of which provided care to Rapoza several months before the attack. The lawsuit claims that staff should have warned Rapoza's parents that their son might become violent if he stopped taking medication, and should have trained his parents to prevent this.

The lawsuit still hasn't been resolved. Last May, the Vermont Supreme Court rejected a motion to dismiss the case in a decision that immediately caused panic throughout the mental health care community.

In 1985, the Vermont Supreme Court ruled in Peck v. Counseling Service of Addison County that when providers discharge a patient who poses a serious threat to an identifiable person, they must take reasonable steps to prevent harm, such as by warning the individual.

In Kuligoski, the court went further, with a 3-2 majority ruling that the "duty to warn" extends to "foreseeable victims or to those whose membership in a particular class ... places them within a zone of danger."

The high court didn't decide whether the Brattleboro Retreat and Northeast Kingdom Human Services had shirked their duty; it simply stated that such a duty exists and returned the case to the lower court.

Two of the five justices were taken aback. Chief Justice Paul Reiber wrote in a forceful dissent that the majority's decision would "expand exponentially the duty owed by a mental health professional to protect third parties."

The ruling has resurrected a debate about the balance between protecting public safety and safeguarding the privacy and personal freedom of mental health patients. That discussion is now taking place before the state Senate Judiciary Committee.

During a January 18 hearing, Cassidy told the committee members, "It doesn't make sense to me to say that [duty to warn] would only apply in an instance when there's a specifically identifiable victim, if there is a logical and sensible thing to do to protect the public."

Providers say it isn't so simple. "We're called upon to make a judgment that we know we really can't make," Dr. Robert Pierattini, chair of psychiatry at the University of Vermont Medical Center, said in an interview.

Evaluating whether someone is safe to release can "easily take several hours," Pierattini said, and it often involves a crisis clinician, an emergency room doctor, a psychiatrist and a psychiatric resident. Clinicians fact-check, too: If a patient says he's going to kill his mother, a hospital staff person will try to verify whether he actually has a living mother.

Often it's obvious whether the person poses a risk, Pierattini said. But, "when it's not so clear-cut, it is very stressful." Predicting future threats to a nebulous group of people who may be in a "zone of danger" is far more difficult than determining if someone poses an immediate threat to specific individuals, he said.

The Senate committee heard from a procession of hospital lobbyists, lawyers and mental health executives who said that expanding doctors' duty to share confidential information erodes patients' trust, making them less likely to disclose information or to seek help in the first place.

Kuligoski critics contend that liability concerns will influence providers' behavior, too. "Private practitioners may be less inclined to take on clients seen as higher risks," said Heather Pierce, a member of the Vermont Mental Health Counselors Association. Other practitioners may be more reluctant to discharge patients who are held involuntarily. That means hospitalizing more people against their will — a controversial practice that some advocates consider a violation of personal liberty.

Department of Mental Health officials say the Kuligoski decision, handed down in May, is making an overstressed system even more crowded by causing providers to err on the side of caution. According to the department's data, an unprecedented number of emergency evaluations — the first step to getting a judge to commit someone involuntarily — took place after the ruling.

During the second quarter of 2016, 164 adults were evaluated, about 30 more than is typical. The percentage of evaluations ending in involuntary commitment has stayed at about 80 percent.

"We are really struggling right now, because we are seeing numbers that we just haven't seen before," Karen Barber, general counsel for the Department of Mental Health, said. "I can't say for sure it's because of Kuligoski. But I can tell you when we talk to emergency rooms and we talk to physicians, we're hearing the word 'Kuligoski.'"

Sen. Dick Sears (D-Bennington), who chairs the judiciary committee, is convinced the legislature should pass a bill to address the Kuligoski decision, though he acknowledges that it's proving trickier than he anticipated.

Since the discussion deals with mentally ill people and violence, advocates are concerned that the conversation itself is reinforcing an overblown perception of the connection between the two. Advocates and medical providers — who have previously sparred over the subject of involuntary commitment — appear to be largely on the same page. Both groups are pushing for a law that would simply void the Kuligoski decision.

Rep. Anne Donahue (R-Northfield), a longtime mental health advocate, supports that approach, too. But she isn't convinced that the Kuligoski case is having as severe an impact as mental health officials have implied, and she worries the debate is diverting attention from larger, more intractable problems. "Pinning it on Kuligoski does not resolve our issues," Donahue argued.

After Tropical Storm Irene flooded the 54-bed Vermont State Hospital in 2011, the state began to overhaul its mental health system, attempting to reduce institutional care and ramp up community-based services.

More than five years later, the system remains "in crisis," according to Donahue, who argues that the state failed to build enough beds, particularly for the elderly and prisoners. This is most glaringly apparent in hospital emergency rooms, where those waiting to be admitted to a psychiatric facility can languish for weeks on end.

In 2016, people were involuntarily committed approximately 450 times, according to the Department of Mental Health. The average length of time these patients spent in inpatient care increased from 33 days in 2013 to 40 days in 2016.

On January 19, hospital executives and mental health professionals offered dismal assessments to the Green Mountain Care Board, an independent body that oversees health care reform.

Bob Bick is the CEO of the Howard Center, the largest of the state's designated agencies, which receive public funding to provide community care to the mentally ill. Bick told the board that staff turnover across designated agencies is 26 percent and that 400 positions were unfilled, a fact he attributes to poor pay.

Rutland Regional Medical Center CEO Tom Huebner said psychiatric patients have stayed in the hospital's inpatient beds for more than a year. "We really think the focus needs to be on community services," Huebner said, recommending more secure residential beds, transitional housing and facilities for elderly patients.

Louis Josephson, CEO of the Brattleboro Retreat, a 122-bed psychiatric facility, told the Green Mountain Care Board that one elderly woman has been at the Retreat for three years, because his staff haven't been able to find a better placement for her.

"I think the missing component here is, frankly, some moral outrage," Josephson said.

When asked about the situation in his emergency room, Pierattini responded without hesitation: "It's terrible." The night before, 12 people had been waiting to be admitted to a psychiatric facility, occupying more than a quarter of the UVM Medical Center's 44 emergency room beds, he said.

It's possible psychiatrists are more reluctant to release patients because of the Kuligoski decision, Pierattini said, but, "I haven't personally observed it." His explanation for the overcrowded ERs throughout the state: "We simply don't have the capacity we need to take care of patients properly." And, he noted, "It's getting worse."

Correction, March 3, 2017: This story was updated to correct the state Department of Mental Health's error about how many patients were committed involuntarily in 2016.