The Unkindest Cuts . . . : Proposed Reductions in Mental Health Services Raise Legal, Ethical Questions

San Diego County’s proposed mental health cuts are plunging it into a tangle of ethical and legal issues that are part of the national movement away from institutionalized care and toward community treatment of the mentally ill.

“It’s like a hospital, it seems to me, turning away a cancer patient,” Stephen J. Morse, a UCLA law professor who studies psychiatric legal issues, said when told of the county’s planned cutbacks. “A policy that tries to save money by refusing to treat mentally disordered people on an outpatient basis is shortsighted morally, it’s shortsighted psychiatrically, and it’s shortsighted fiscally.”

“It’s not only dumb, it’s irresponsible,” said Dr. John Talbott, chairman of the psychiatry department at the University of Maryland and a former president of the American Psychiatric Assn. “It’s unethical. It’s wild in this day and age.”

But it is probably legal.

That is the consensus of lawyers and psychiatrists familiar with mental health laws in California and around the nation. At the same time, however, they say the San Diego situation raises the issues of mental health care in a manner so unusual they can’t be sure how the courts would view the cuts.

County officials don’t disagree with critics who say the cuts would be devastating to chronically mentally ill people who have nowhere else to turn. However, they say the county has no financial alternative, and they blame inadequate state financing of programs in the county for their troubles.

Nationwide, mental health advocates are asking some hard questions:

-- Now that the nation is committed to deinstitutionalizing its mentally ill, do those people have a right to expect government to take care of their mental health needs outside of hospitals?

-- If the answer is yes, does that mean individuals can prevent governments from reducing those services?

-- Who is legally liable if an untreated mental patient hurts himself or someone else?

In San Diego County, such questions have been hitting close to home since the controversial cuts were announced June 3.

The county is proposing to cut $7.5 million from outpatient mental health services throughout the county in the fiscal year that begins July 1. Faced with budget cuts and voter defeat of a proposition that would have allowed more general spending, the county decided to remove discretionary money from mental health in order to preserve other county programs. The proposed cuts go before the Board of Supervisors this week.

Gone would be funding for drugs, counseling and other support services for about 5,000 of the 11,000 people who now rely on the county as their only source of mental health care.

“It would seem to me to raise the question of whether, having offered and begun providing care for these people, the county can legitimately abandon them,” said Dr. Paul Appelbaum, chairman of the Commission on Judicial Action for the American Psychiatric Assn.

“In the absence of mandatory legislation, you can’t compel a state or county to provide mental health services that they don’t want to provide,” Appelbaum said. “However, when they begin providing those services, whether they can walk away from a population that has come to rely on them seems to me to be a different sort of question.”

Ethical, Legal Constraints

Ethical, and in some cases legal, constraints prevent individual psychiatrists and other doctors from abandoning patients who need medical care, Appelbaum noted.

“I guess the open issue here is whether a county is in the same position--whether a county can be charged with abandonment the same way an individual practitioner could be,” he said.

Joanna Beam, counsel in Berkeley for the University of California system, said it is unclear whether the cuts might result in patient abandonment as an issue for doctors at UC San Diego, which contracts to run one of the biggest clinics in the county system.

“It is an issue that we will have to consider, and I think the county is going to have to deal with that as well,” Beam said. “The potential outcome for everybody involved is horrendous.”

County officials have not raised such issues with the San Diego county counsel’s office, said Tony Albers, chief deputy county counsel.

Asked about the legal troubles the cuts might bring the county, Deputy Chief Administrative Officer David E. Janssen said officials would be “very careful” not to violate anyone’s rights in implementing the cuts. But the county believes the reductions are legal, he said.

“The county is very concerned about liability issues, not only in the mental health area but in all of our programs, because there is a tremendous propensity to sue government nowadays,” Janssen said.

“In general, we believe that the mental health programs are discretionary programs. It is not a mandated obligation, and therefore we have the option to terminate the programs whenever revenues are not available,” he said.

Kathleen Armogida, deputy director for planning, said the Health Services Department would do everything possible to assure that patients are guided to “other services and support systems.” Critics, however, say those resources are not available.

Psychiatrists and county officials agree that many of the people affected by the cuts may end up needing hospitalization if they don’t get outpatient care. Others might take to wandering the streets or harming themselves or others, psychiatrists say.

Faced with those prospects, doctors who work for contractors at the clinics not only are worried about their patients but also wonder whether they could be held liable for malpractice by cutting patients off from care.

Fresh in their minds is the $4.5-million malpractice award given in May by a jury to the family of Shelley Rotman, a Massachusetts woman who was killed by a psychiatrist’s patient.

There may be some governmental immunity from such suits, but the prospect of even an unsuccessful action can be expected to be daunting, said Dr. Thomas G. Gutheil, co-director of the program in psychiatry and law at Harvard University Medical School.

“Basically, all it’s going to take is one piece of litigation of any kind, and then all the doctors could do is bail out of the system,” Gutheil said. He was an expert witness for the defense in the landmark Massachusetts case.

Though county officials apparently have not researched the issue, the county too might face liability problems, not only at the contract clinics but also at five clinics run directly by the county.

Already, an attorney for Legal Aid Society of San Diego is studying whether the county has violated procedural requirements for implementing the mental health budget cuts. The attorney, Rosemary Bishop, said Legal Aid would also consider filing suits on behalf of chronically mentally ill people who lose access to care because of the county cutbacks.

Federal courts have held that patients cannot be kept hospitalized if they can adequately be cared for in the community, but they have rejected the idea of a federal constitutional right to such services once the patients are released, said Robert Levy, staff attorney for the New York Civil Liberties Union. The group has been active in litigating mental health cases.

The federal decisions leave the issue of community mental health services to individual states to decide, resulting in a patchwork of decisions that are still evolving, Levy said.

“Right now, there’s no California law that indicates a person has a right to receive mental health services,” said Carl Elder, chief counsel for the state Department of Mental Health. “The law is fairly flexible . . . so in essence a lot of it does get down to policy decisions made by local legislative bodies.”

Indeed, the recent case of Mental Health Assn. of California et al. vs. Deukmejian et al. confirmed that assessment. In November, 1986, the California 2nd District Court of Appeal denied an appeal of the Los Angeles County decision that held the state had no obligation to provide community mental health services.

Generally, when right-to-treatment suits are won, it is because of statutes that apply to specific groups--for instance, jail inmates--said Dr. Mark J. Mills, a forensic psychiatrist in Santa Monica.

“To my knowledge, no state has recognized such an obligation unless there was an explicit statute, as opposed to a general statement in the Constitution,” Mills said.

In Arizona, however, the state Supreme Court is considering a lower-court decision that used broadly worded state laws similar to those in California to require community mental health care for everyone among the chronically mentally ill, said Robert Zumoff, assistant attorney general for Arizona.

The state has appealed, contending that its obligation extends only insofar as money is available, Zumoff said.

“When the Supreme Court comes out with a decision on that, it will help us, and we’ll read it closely,” Beam, the UC counsel, said of the Arizona case.

However, both the California and Arizona suits differ from the San Diego situation in that the plaintiffs sought to expand mental health services rather than maintain treatment that had already been offered.

“There may be a theory of wrongful discharge, that it is in fact negligent to discharge someone who can reasonably be expected to require continuing services,” Levy said. “That theory is being tested now, but has not really been ruled on by a court in any definitive way.”