On February 27, 2013, ten psychiatric patients were being involuntarily detained in hospital emergency departments located in Pierce County under Washington State’s Involuntary Treatment Act (ITA). Despite the name of the law that authorized their detainment, these individuals were not receiving any psychiatric treatment during their confinement. Nor were they there as the result of a criminal conviction. The only thing these ten detainees were guilty of was being mentally ill. Under what is now considered to have been a misinterpretation of the ITA, counties across Washington had for years been confining mentally ill patients in hospitals not certified to provide psychiatric treatment. When this practice was finally challenged in Detention of D.W. v. Department of Social & Health Services, it was predictably outlawed. The Washington Supreme Court’s decision in D.W. stems from a challenge to Washington’s practice of “psychiatric boarding,” a term of art for the involuntary confinement of mentally ill patients to hospitals not authorized to provide psychiatric treatment by using “single-bed certifications” under the ITA. Single-bed certifications are temporary permits that allow a patient detained under the ITA to be housed in a facility not certified to provide psychiatric treatment for a limited period of time. The primary motivation behind this practice is to limit overcrowding in certified psychiatric hospitals. A combination of drastic budget cuts in the area of mental health treatment and a lack of legislative attention given to the reality that psychiatric treatment centers are grossly underfunded and overcrowded has culminated in a mental healthcare crisis. Although the rampant abuse of the ITA’s single-bed certification provision was a necessary evil in the fight against overcrowding in certified treatment centers in recent years, this option is no longer legal under D.W. Therefore, the state is now left with hundreds of patients who would normally be eligible for detention under the ITA and nowhere to legally house them. Given that patients eligible for involuntary detention are typically those who pose a danger to either themselves or others, this problem is concerning both for the patients in need of treatment and for the public they inevitably interact with. This problem is only getting worse, and the Washington State legislature must dedicate additional funds and facilities to the housing and treatment of psychiatric patients if this new crisis is to be averted. To address these new and complex issues, this Comment proposes both a short-term and long-term solution to the systemic complications brought about by the D.W. decision. In the short term, this Comment proposes amending Washington’s ITA to permit the temporary psychiatric boarding of mentally ill patients if they would otherwise be released despite posing a danger to themselves or others. A bill proposing an amendment similar to the one proposed in this Comment was passed by the Washington State legislature and signed by Governor Jay Inslee on May 14, 2015, and took effect in July 2015. Second, this Comment proposes a long-term restoration of mental health funding to pre-2009 levels. The recent increase in the use of single-bed certifications is correlated with a drop in mental health funding. This downward trend in mental health funding must be reversed if we are to truly resolve Washington’s mental health crisis once and for all.
Spencer Babbitt, Between a Bed and a Hard Place: How Washington Can Keep Psychiatric Patients in Treatment and Off the Streets, 39 SEATTLE U. L. REV. 145 (2015).