The Conduct of Riese Hearings
Riese cases are centered around the fundamental concept that a patient must be involuntarily medicated because they are adjudged to "lack capacity" by clear and convincing evidence. In order to present such a case before the court, the treating doctor must make a show of such incapacity.
PRELIMINARY REQUIREMENTS
In order for a judicial officer to properly hear a Riese hearing, the hospital must demonstrate that the preliminary requirements have been met. If they are not met, then the facility runs the risk of having the case dismissed without prejudice.
These preliminary requirements include:
(1) whether reasonable efforts have been made to provide information to the patient required under WIC Sections 5332 (a) and 5152 (c); (2) whether the patient is a refuser; (3) whether the presenting doctor qualifies as a treating physician and (4) whether proper notice has been provided the patient that the hearing will take place. The dismissal occurs "without prejudice" which means that there may be a new petition submitted on the same patient once the omissions are corrected.
Informed Consent
The first step is that the patient must have been given information before they are offered psychotropic medication. The court will be looking for the following when determining whether Informed consent was properly effectuated.
(1) Whether reasonable efforts have been made to provide information to the patient required under WIC Sections 5332 (a) and 5152 (c); (2) whether the patient is a refuser; (3) whether the presenting doctor qualifies as a treating physician and (4) whether proper notice has been provided the patient that the hearing will take place.
Should the hospital be unable to provide information to a violent or hostile patient, the court will take into consideration any reasonable efforts. It is important that any providers make note of giving notice and any reason for not providing notice.
Offer of Medication and Refusal
After the patient has been provided with informed consent, the hospital or doctor must give the patient a chance to accept or refuse the medication. Before a status of refuser or hostile patient may be entered, there must be a physical or verbal offer of medication. Once that offer has been made the court differentiates the two by: a hostile patient being one who rejected the explanation of risks and benefits. and a refuser being one who rejects the appropriate offer. In addition, if the patient partially refuses medication, the court will classify them as a refuser even if three out of the four medications are taken.
It is good practice to take note of in the patient's charts their refusal history, reasoning if any, and medications refused. Therefore, in vague cases, the evidence can be used as a foundation for refusal.
Petition and Notice
Once refusal has been established, the doctor may petition the court to set a date for a riese matter. The court will then serve notice to the patient of the date and time of the hearing. On the day of filing the patient must also receive a copy of the petition and details of why the doctor is seeking a capacity hearing. Ensure that the paperwork is filled out properly and that as much information is provided as possible. This way, the risk of continuance will be lower.
Treating Physician
The doctor or treating physician plays a key role in presenting the case to the court. According to policy the treating doctor must have first hand knowledge of the patient's case ideally being face to face time with their client. At a minimum, the treating doctor should have presented the patient with information about medication and have solid understanding of the patient's case. Without the treating physician, opposing counsel will have the ability to poke holes in the doctor's case.
current court policy defines a treating physician as one who has presented the full body of information that is required under informed consent to the patient at least once and who has sufficient first hand knowledge of the case to present it adequately.
PRESENTING THE CASE
Since Riese hearings deal with depriving an individual of their civil liberties, the standard of proof is higher than that of involuntary detention. The court holds the standard of proof at clear and convincing evidence. This standard of proof is "so clear as to leave no substantial doubt; sufficiently strong to command the unhesitating assent of every reasonable mind." In order to meet this standard, the treating doctor must make a show that the patient must have a existing mental disorder, lack of decisional capacity, and how the two interplay. It is not enough to enter a default judgement that the patient has X and Y so therefore they lack decisional capacity. The doctor must make a show using evidence from the patient's medical file. For example, he must show that a patient is hallucinating that everyone is out to poison him and that the medications offered are viewed as poison. Because of this belief, the patient rejects any explanation citing his beliefs and therefore lacks decisional capacity. This would be a better argument.
REBUTTAL OF THE PATIENT'S CASE
It is the advocate's or attorney's job to defend the patient and create doubt in the doctor's case. Counsel may do this through cross examining the doctor, presenting the patient as a witness, exploring contradicting evidence in the patient's chart, or by calling other witnesses. Counsel may ask questions that lead to a more specific answer. It is important to know that the doctor also has the right to cross examine any witness patient's counsel has called. Counsel should be aware that on cross the doctor is limited to asking about already testified areas. However, the doctor may ask for more specific information which may change the narrative presented to the court. Throughout litigation, counsel should remember that the narrative that they are presenting should focus on the patient's decisional incapacity about medication only. Other factors should not be brought up unless they directly relate to the patient's incapacity.
Riese cases are centered around the fundamental concept that a patient must be involuntarily medicated because they are adjudged to "lack capacity" by clear and convincing evidence. In order to present such a case before the court, the treating doctor must make a show of such incapacity.
PRELIMINARY REQUIREMENTS
In order for a judicial officer to properly hear a Riese hearing, the hospital must demonstrate that the preliminary requirements have been met. If they are not met, then the facility runs the risk of having the case dismissed without prejudice.
These preliminary requirements include:
(1) whether reasonable efforts have been made to provide information to the patient required under WIC Sections 5332 (a) and 5152 (c); (2) whether the patient is a refuser; (3) whether the presenting doctor qualifies as a treating physician and (4) whether proper notice has been provided the patient that the hearing will take place. The dismissal occurs "without prejudice" which means that there may be a new petition submitted on the same patient once the omissions are corrected.
Informed Consent
The first step is that the patient must have been given information before they are offered psychotropic medication. The court will be looking for the following when determining whether Informed consent was properly effectuated.
(1) Whether reasonable efforts have been made to provide information to the patient required under WIC Sections 5332 (a) and 5152 (c); (2) whether the patient is a refuser; (3) whether the presenting doctor qualifies as a treating physician and (4) whether proper notice has been provided the patient that the hearing will take place.
Should the hospital be unable to provide information to a violent or hostile patient, the court will take into consideration any reasonable efforts. It is important that any providers make note of giving notice and any reason for not providing notice.
Offer of Medication and Refusal
After the patient has been provided with informed consent, the hospital or doctor must give the patient a chance to accept or refuse the medication. Before a status of refuser or hostile patient may be entered, there must be a physical or verbal offer of medication. Once that offer has been made the court differentiates the two by: a hostile patient being one who rejected the explanation of risks and benefits. and a refuser being one who rejects the appropriate offer. In addition, if the patient partially refuses medication, the court will classify them as a refuser even if three out of the four medications are taken.
It is good practice to take note of in the patient's charts their refusal history, reasoning if any, and medications refused. Therefore, in vague cases, the evidence can be used as a foundation for refusal.
Petition and Notice
Once refusal has been established, the doctor may petition the court to set a date for a riese matter. The court will then serve notice to the patient of the date and time of the hearing. On the day of filing the patient must also receive a copy of the petition and details of why the doctor is seeking a capacity hearing. Ensure that the paperwork is filled out properly and that as much information is provided as possible. This way, the risk of continuance will be lower.
Treating Physician
The doctor or treating physician plays a key role in presenting the case to the court. According to policy the treating doctor must have first hand knowledge of the patient's case ideally being face to face time with their client. At a minimum, the treating doctor should have presented the patient with information about medication and have solid understanding of the patient's case. Without the treating physician, opposing counsel will have the ability to poke holes in the doctor's case.
current court policy defines a treating physician as one who has presented the full body of information that is required under informed consent to the patient at least once and who has sufficient first hand knowledge of the case to present it adequately.
PRESENTING THE CASE
Since Riese hearings deal with depriving an individual of their civil liberties, the standard of proof is higher than that of involuntary detention. The court holds the standard of proof at clear and convincing evidence. This standard of proof is "so clear as to leave no substantial doubt; sufficiently strong to command the unhesitating assent of every reasonable mind." In order to meet this standard, the treating doctor must make a show that the patient must have a existing mental disorder, lack of decisional capacity, and how the two interplay. It is not enough to enter a default judgement that the patient has X and Y so therefore they lack decisional capacity. The doctor must make a show using evidence from the patient's medical file. For example, he must show that a patient is hallucinating that everyone is out to poison him and that the medications offered are viewed as poison. Because of this belief, the patient rejects any explanation citing his beliefs and therefore lacks decisional capacity. This would be a better argument.
REBUTTAL OF THE PATIENT'S CASE
It is the advocate's or attorney's job to defend the patient and create doubt in the doctor's case. Counsel may do this through cross examining the doctor, presenting the patient as a witness, exploring contradicting evidence in the patient's chart, or by calling other witnesses. Counsel may ask questions that lead to a more specific answer. It is important to know that the doctor also has the right to cross examine any witness patient's counsel has called. Counsel should be aware that on cross the doctor is limited to asking about already testified areas. However, the doctor may ask for more specific information which may change the narrative presented to the court. Throughout litigation, counsel should remember that the narrative that they are presenting should focus on the patient's decisional incapacity about medication only. Other factors should not be brought up unless they directly relate to the patient's incapacity.