Section 2: Summary of Laws that Cover the Transfer of Patients (5150, EMTALA, Health & Safety Code)

  • EMTALA

    EMTALA requires a hospital “with an emergency department” to provide “any person who comes to the hospital seeking medical care” with a “medical screening exam” and only those patients who are found to have an “emergency medical condition (which includes an emergency psychiatric condition)” must then be provided with “stabilizing treatment”. (If there is no emergency medical condition then the person is not an EMTALA patient). And, that if the person with the emergency medical condition cannot be stabilized, that separate from the 5150 laws, EMTALA requires an independent determination of the emergency medical condition, efforts to stabilize, a provider to provider acceptance of the transfer, and a medically appropriate transfer with the appropriate documentation” — all of which the hospital is responsible for, and which are tasks that are independent of the 5150 laws.

    EMTALA states that the hospital is obligated to stabilize the condition within the capability of the hospital (and its staff, including on-call staff) prior to transferring or discharging the patient.

    To stabilize means that no material deterioration of the emergency medical condition is likely, within a reasonable degree of medical probability, to result from or occur during transfer.

    Transfer is defined as movement (including discharge) of the patient outside the hospital‘s facilities at the direction of someone from the hospital (does not include patients leaving AMA or without direction to do so); Transfer of an unstable patient defines a situation when the hospital must transfer an unstable patient to a “higher level of care” (another facility that has the capability and capacity to stabilize the patient) because they are unable to stabilize the condition themselves. In order to make this type of transfer there must be available treatment to minimize risks of transfer; acceptance by a receiving facility; transfer of all medical records related to the emergency medical condition; use of qualified personnel, equipment and transportation method to affect the transfer.

    Hospital/Doctor Sign-off on Transfer: Due to EMTALA, hospital needs to record some kind of decision on the method of transfer.

    Assumption with written 5150 that the transport is done by law enforcement but medical issues weren‘t addressed in 5150 laws; EMTALA assumes that the transfer from acute care hospital Emergency Department following the medical screening exam and stabilizing efforts is done via medical procedures of hospital (ambulance).

    California Hospital Association Advisory: “The information in the summary does not include all EMTALA and state requirements for screening, treating and transferring emergency patients, as well as follow-up services for behavioral health patients who are medically clear for transfer. Hospitals are advised to consult with experienced legal counsel to ensure that they comply with all applicable laws and regulations.”

Health & Safety Code 1799.111  This is an immunity statute permitting Non-designated hospitals to detain a person while arranging for a 5150 hold evaluation. Sometimes referred to as the “24 Hour Rule”

Health and Safety Code 1317.1(2)(A):“Emergency services and care” also means an additional screening, examination, and evaluation by a physician, or other personnel to the extent permitted by applicable law and within the scope of their licensure and clinical privileges, to determine if a psychiatric emergency medical condition exists, and the care and treatment necessary to relieve or eliminate the psychiatric emergency medical condition, within the capability of the facility.

WIC 5150.1 Law enforcement can transport the person directly to the designated facility.

WIC 5008 (m):  “Emergency” means a situation in which action to impose treatment over the person’s objection is immediately necessary for the preservation of life or the prevention of serious bodily harm to the patient or others, and it is impracticable to first gain consent. It is not necessary for harm to take place, or for it to become unavoidable prior to treatment.

 AB 2983= If a person is willing to accept services willingly and voluntarily, they should NOT be placed on, or admitted under, an involuntary 5150 hold (and suffer the potential life-time stigma of that designation, lose their right to bear arms, etc). (2018 signed into law by the Governor amending Health & Safety Code 1317(f))