Q.

Should staff attempt to physically restrain somebody eloping from our facility when they have been remanded into our custody for involuntary treatment by the Superior Court?  Our facility is generally secure, the fire marshal has required that a door be left unlocked and patients may walk out through this door.  I have included a typical order for involuntary treatment. 
 

A.

First, in writing advise the chief judge of your court system and the judge assigned to hear cases for involuntary treatment that your facility has an unlocked door required by the fire marshal and that patients may possibly elope through the door.

Second, provide all patients who are admitted to your facilities with a notice and liability waiver regarding leaving the facility against medical advice.  The notice should describe the risks that the patient assumes if he or she leaves a facility against medical advice including but not limited to such risks as deterioration in mental status, self harm, injury caused by the influence of medication, and injury from environmental factors such as traffic and other possibly dangerous conditions in the geographical area of your facility.  For instance, a patient leaving under the influence of some type of medication could slip and fall.  If you are aware of any dangerous conditions in your geographical area such as a high traffic zone or a hole in the street which is difficult to see include these kinds of things in the notice.  The notice and waiver should be signed by the patient and should include a provision that the patient waives any liability arising from his or her leaving against medical advice.

Third, continue to follow your practice of immediately calling the police in the event that a patient elopes after being remanded to your custody.  It is quite problematic for you to attempt to run down and physically restrain a patient in the process of eloping.  The risk of injury to your staff members and the patient is substantial in this type of encounter.  The police, on the other hand, are trained in just this type of intervention and are more likely to be able to do it in a safe way.  You should advise the court system and patients that you will continue to follow this practice rather than physically restraining an individual.

It seems to me that refraining from physical restraint, calling the police immediately, having patients sign a notice and waiver and informing the court system of your practice is the best approach to minimizing legal risk.  However, it does not eliminate all possibilities of risk.  If an eloping patient is injured or causes injury to somebody else it is possible that an attorney will try to make an argument that you should have physically restrained the patient.  Either way, you cannot eliminate risk.