‘Race to the door’

If someone has a severe and violent mental illness episode in your hospital and tries to escape, do you immediately tackle them and put them in a straightjacket or do you fill out the paperwork first? The former is the better approach, because if you insist on filling out the paperwork first, the absconding individual will be long gone, out on the street, possibly posing a grave danger to themselves and others. It’s hard to believe this is a genuine legal question, but it is.It has been litigated multiple times and, not surprisingly, courts have consistently rejected the notion of paperwork first, capture second, because this would lead to what is known as a “race to the door,” which is clearly absurd and ridiculous. After all, this is a race the at-risk individual will always win—unless the pursuer is really fast at paperwork, and can do it while running, and also carrying a straightjacket and a syringe.A recent Canadian case illustrates the issue vividly. The patient went to a neurology clinic, without an appointment, because he thought he might be having a stroke. He said he had a multi-year history of headaches that were gradually worsening. He then went on to say that he was having visual and auditory hallucinations. One witness at the trial testified that the patient seemed suspicious and told the doctor he did not want any notes taken or any mention of hallucinations in his medical file. He said he did not trust hospitals, the medical system or psychiatrists and that he was “desperate” and “stuck” and was trying “not to do anything stupid.” When asked if he was thinking of suicide, his response was, “I’m not going to answer that.”He was sent to emergency, where one witness described him as acting paranoid. He agreed to voluntarily remain there to be examined by a psychiatrist. However, he soon changed his mind and tried to flee. As the nurses attempted to re-direct him to a hospital bed, he became violent and combative. Accordingly, the doctor verbally advised hospital staff that the patient was being “certified” for an involuntary hospital stay. The requisite paperwork was started immediately, but it was not completed until about 45 minutes later, during which time the patient attempted to evade security officers, kicked hospital equipment, lashed out with his limbs, shouted, swore and tried to bite a staff member. He was eventually tied down to a trauma bed and forcibly injected with midazolam and haloperidol.His lawsuit claimed he had been wronged, because the paperwork should have been completed before he was subdued and chemically sedated. As the judge explained it, the requisite forms for his involuntary admission and treatment were “not fully executed prior to him being detained and receiving chemical sedation against his will.” He claimed damages for battery, false imprisonment, negligence and violations of his rights under the Canadian Charter of Rights and Freedoms.He lost. The judge ruled that this was largely a question of “statutory interpretation,” which is very much based on ordinary common sense. “It is a well-established principle of statutory interpretation,” said the judge, “that the legislature does not intend to produce absurd consequences. An interpretation can be considered absurd if it leads to ridiculous or frivolous consequences, is extremely unreasonable or inequitable, is illogical or incoherent, is incompatible with other provisions, or defeats the purpose of the statute, or renders some aspect of it pointless or futile.”This is exactly what would happen if the applicable mental health statute, which says the director of a medical facility can detain someone “on receiving” the appropriate mental health certificates, were interpreted to mean that you can’t apprehend someone suffering a violent mental health crisis until you get the completed certificates in your hands.“To require the medical professional or director’s delegate to physically sign a form before any steps can be taken to detain an individual, would directly undermine the central purpose of the statute, which is to treat persons with mental illness who need protection and care,” the judge ruled, adding that the certificates can be filled out and signed “within a reasonable time period after the detention, taking into account the normal demands on, and responsibilities of, a person filling that role in an emergency department or other facility standard practice.” One of the witnesses at the trial testified that standard practice is to get this paperwork done within four hours.Credibility was an issue at the trial, and the judge explained the long-standing legal test to tell whether someone is lying on the stand. “The well-established test for assessing the truthfulness of the testimony of a witness is whether their evidence is consistent with independent evidence and in harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.”There is also the desirability of “balanced” testimony. “How a witness answers questions and some of these factors are captured by the notion of balance,” said the judge. “Balance exists when a witness avoids exaggeration or minimization, acknowledges memory frailties, admits personally difficult facts or credibly acknowledges weaknesses in their evidence. A balanced witness does not answer questions strategically, in the sense that they answer the questions asked and without attempting to unreasonably control the narrative. They do not appear to have an agenda.”The judge observed that in this trial, the defendants called a number of witnesses, including many of the doctors, nurses and security officers who interacted with the patient. Several of those witnesses had direct recollections of the events that day, but where they did not, they readily admitted their lack of memory and referred to notes where available. “None testified with any defensiveness,” said the judge, “and their evidence did not change on cross-examination. A consistent theme throughout the testimony of the defence witnesses was genuine concern for the safety and well-being of the patient. In other words, they all provided the type of balanced testimony which is the hallmark of a credible witness.”The patient’s testimony was another story. He consistently sought to downplay his conduct and minimize his personal responsibility for the events leading to his certification, said the judge. “Moreover, he demonstrated a profound lack of insight into how his behaviour and responses to questions are viewed by others, which explained the frequent conflicts between his evidence and the testimony of the defence witnesses. That lack of insight was undoubtedly a contributing factor to his frequent outbursts and disruptive conduct during trial.”For example, he adamantly denied reporting auditory and visual hallucinations to the neurology fellow who first saw him when he attended the neurology clinic. He instead insisted that he was only complaining of “floaters and tinnitus.” However, the neurology fellow specifically documented the patient reporting hallucinations and testified that if the patient had mentioned floaters and tinnitus, she would certainly have recorded this.Moreover, the patient originally denied trying to bite one of the security officers who was restraining him in a hospital bed after the verbal certification order was given, claiming he merely put his teeth on the officer’s forearm but did not bite down. But multiple witnesses testified that he did indeed attempt to bite, and one of the attending nurses specifically wrote this in the emergency nursing assessment record. During cross-examination, the patient finally admitted it. Accordingly, ruled the judge, “where the patient’s evidence conflicted with that of the other witnesses, I rejected it.”Even though the doctors and the hospital staff were held completely blameless, the judge went on to comment on the issue of what, if any, actual damages were suffered by the patient. After all, he was only certified and detained for a few hours, after which he was able to drive himself home from the hospital. He successfully interviewed for a job the very next day. “I do not doubt that the plaintiff found the events to be deeply distressing and frustrating, leading him to commence and prosecute this litigation through to trial,” the judge concluded. “However, there was no medical evidence of the type of lasting injury that would ordinarily ground a damages award. I also observe that the patient abandoned any claim for economic losses, and produced no evidence of special damages. Finally, there was no evidence of ‘malicious, oppressive or high-handed’ misconduct that could ground an award of punitive damages.”Bill Rogers is a Toronto lawyer and writer covering medical and pharmaceutical issues.

‘Race to the door’

Register for free access or login.

Related Topics