Does a 72-Hour Hold Go On Your Record?

Does a 72-hour hold go on your record? You might be asking yourself this very question if you’re currently job hunting and are wondering whether a record of detention in a mental health institution can hurt your chances of landing a job. Perhaps you’re worried your potential employer may unearth this information when running a background check on you.

If this is your case, then continue reading this article as we delve into California’s 72-hour holds legislation.

Short Answer

It depends on how the 72-hour hold came to be. Information about a 72-hour hold can end up on your criminal or medical record. If the behavior that got you placed in hold had a criminal element, the 72-hour hold would go on both your criminal and medical records. However, if you end up on hold without criminal behavior, it’ll only end up on your medical record.

Thankfully, medical records aren’t publicly accessible, meaning most employers may never learn you were held. Conversely, criminal records are publicly accessible, so employers may learn about your 72-hour hold when conducting a background check.

72-Hour Holds Explained

Different states have their legislation regarding the procedure for 72-hour holds. We’ve decided to concentrate on California’s laws for this article.

In California, 72-hour holds are occasionally colloquially referred to as 5150s. The number 5150 refers to the corresponding section number of California’s Welfare and Institutions Code, which is the legislation that provides for, among other provisions, people to be held in a psychiatric institution involuntarily.

When a person is assessed as a physical or mental health risk to themselves or others, they can be held for 72 hours under section 5150. This legal action protects the lives of the detained person (by minimizing the risk of self-harm or suicide) and others, whether people close to the detainee or random strangers.

Interestingly, while section 5150 of the Welfare and Institutions Code stipulates a 72-hour hold, it doesn’t mean the detainee must spend the entire time being held. As is discussed later, a detainee may be released earlier or kept for much longer, depending on their assessors’ findings.

Criteria for 5150s

There are three criteria that provide the legal basis for a 5150 hold:

• Danger to Self: Danger posed to oneself, as understood by the law, may point to evidence of self bodily harm, suicide threats, or attempted suicide.
• Danger to Others: When a detainee is assessed as being a danger to others, it’s either because they’ve threatened violence or have acted violently. Usually, the threat posed may be imminent, warranting the individual’s detention.
• Gravely Disabled: Finally, a person may be held when it’s evident mental health problems (e.g., PTSD, catatonia, etc.) have impaired their ability to make informed decisions regarding their essential needs. Note that people born with learning disabilities don’t fall into the category of gravely disabled.

If the detainee’s disposition doesn’t improve once the 72-hour hold concludes, they can be held for an additional 14 days under a 5250 (another section of the Welfare and Institutions Code).

Is It Possible to Resist a 72-Hour Hold?

No. The Welfare Institutions and Code provides for “involuntary” holds, meaning the detainee doesn’t have a say in discussions concerning their detention. When you consider that the aim of these holds is to preserve life, it makes sense why the detainee’s opinion can be disregarded.

Incidentally, only a mental health professional can give the go-ahead for a detainee’s release, and they’ll have to first determine whether there’s sufficient cause for holding the person.

These professionals attend a Certification Review Hearing (Probable Cause Hearing), which is a meeting held when a detainee is admitted. At the Hearing, the professionals decide the detainee’s fate (whether to hold them for 72 hours or not).

Rights of Individuals Held Involuntarily for 72 Hours

US law recognizes detainees as having rights when held involuntarily for 72 hours. These rights, according to California law, include:

• The right to be free from abuse or neglect.
• The right to freedom from discrimination.
• The right to education.
• The right to social activities and recreation.
• The right to humane care.
• The right to religious freedom and practice.

However, a person may be denied one or more of the above rights if a mental health professional in the psychiatric facility establishes good cause for the denial.

For example, they may deny the patient one of the above rights if affording the patient said rights may cause them to endanger others, infringe on other people’s rights, and so on. Some activities that may fall in such a category may include:

• Access to Writing Utensils: A particularly violent patient may use a pen as a weapon to harm themselves, other patients, hospital staff, or visitors.
• Keeping Personal Possessions: If the patient is assessed as a suicide risk, this fact may provide grounds to deny them access to their personal belongings. For example, the patient could swallow items in their makeup bag to poison themselves.
• Receiving Visitors: It’ll make sense to restrict a patient’s access to visitors if they’re in the middle of a violent psychotic episode. For example, some patients end up in the psychiatric ward after attacking family members.
• Wearing Personal Clothing: Patients with suicidal inclinations may be at risk if allowed to keep wearing the clothes they arrived in. For example, if their attire consists of flowing dresses or belts, they could use the latter to make a noose and commit suicide.

72-Hour Holds and Your Right to Confidentiality

Previously, we mentioned employers might never learn about your 72-hour hold when conducting a background check. Why is that?

Usually, detention in a mental health facility falls under information that goes into your medical records. However, US law deems the information in medical records confidential; hence, they aren’t readily accessible to most employers the way a criminal record is.

The Health Insurance Portability and Accountability Act (HIPAA) is the federal legislation that protects the confidentiality of medical records. At the state level, the Lanterman-Petris-Short Act governs Californians’ right to the confidentiality of their medical records.

In most cases, no one can access the information without first obtaining your consent in writing. Think Doctor-Patient Confidentiality, except with legal backing.

Confidentiality and Written Consent

In California, as is the case throughout the US, any information obtained during a patient’s voluntary or involuntary detention in a psychiatric clinic is deemed confidential. So, apart from the exceptions discussed later, anyone who wants access to this information will require your consent in writing.

But what form does the said written consent take?

Usually, you’ll have to sign a form every time information about your physical or mental health is released. The form will include the following information:

• The information being released.
• The name of the individual or entity the information is being released to.
• The name of the individual or entity releasing the information.
• The purpose behind releasing the information.
• An expiration date for the form.

Additionally, the law requires you to be provided a copy of the form, with the original going into your medical record. The medical institution will make a written entry in your medical record stating, among other things, the information they disclosed and the recipient of the said information.

Legal Options if Your Records Are Released Without Your Consent

US law gives you recourse to legal action should anyone violate your right to confidentiality. In particular, you can sue anyone who wilfully releases information in your medical records without your consent. In California, the penalty payable for such a breach of your rights is $10,000 or three times your actual damages.

Alternatively, you can sue anyone who negligently releases your information, and they may be liable to pay a penalty of $1000.

Finally, you can file an injunction stopping someone from releasing information obtained from your medical records. In all of the above cases, you can get the respondent (the person you’re suing) to pay court costs and your attorney fees (where reasonable).

At the federal level, you can file a complaint under the HIPAA, which may result in the offending party paying a $100 fine for every offense and up to $25,000 for repeated and identical violations during one calendar year.

Also, HIPAA criminalizes intentional violations of such breaches of confidentiality. Individuals found to have intentionally breached the confidentiality of other people’s medical records will face the following consequences if convicted:

•  A $50,000 fine or one year in jail
•  A $250,000 fine or ten years in jail

Exceptions to Confidentiality

There are exceptions to every rule, including the ones governing the confidentiality of 72-hour holds. We’ll discuss them below.

You Grant Consent

As mentioned, your written consent gives outside parties access to your mental health records. California’s Welfare and Institutions Code recognizes several individuals and entities you can share information with:

Your Attorney

Your attorney can access your medical records once given consent. Only information provided in confidence to medical professionals and staff by your family members is off the table.

To Medical Professionals Not in Charge of Your Care

If, for example, the professional in charge of you during a hold needs a colleague’s professional opinion, some details of your medical records may be divulged to the other professional during correspondence.

Your Insurer

Your insurer may need to know the information in your medical records before you can apply for disability or life insurance.

Family Members

When you’re placed in a 72-hour hold, medical professionals might have to share information in your medical records with your immediate family members. The exception to this scenario is if you’ve requested that the medical facility doesn’t share the information with them.

Your Parole Officer

If you’ve been convicted of a crime while on probation for another conviction, your parole officer may need information from your medical records.

Please remember that the above list isn’t exhaustive. The Welfare and Institutions Code provides for over ten individuals and entities you can grant consent to access information in your medical records.

Without Your Consent

In some cases, medical professionals may legally share your medical records with outside parties, even without your consent! Some of these cases include:

• If you’re a minor, ward, or conservatee, your parent, guardian, or conservator can grant others access to your medical records.
• In a situation where you can’t authorize consent, the facility holding you may share information about your condition with a requesting family member.
• Where your psychotherapist believes you pose a grave threat to reasonably foreseeable victims, they can release information to law enforcement and these potential victims.
• The institution can release information in your medical records related to the 72-hour hold to county officers where said information may aid a conservatorship investigation.
• If you’re a gravely disabled patient that disappears from your facility or is being moved between facilities.

Once again, the Welfare and Institutions Code provides more scenarios than listed above.

Do Employers Seek Out Mental Health Information During Background Checks?

Although not a common practice, some industries incorporate checks of a candidate’s mental health history into their background check policy. We’ve listed a few of them below:

• Government Agencies: US government agencies conduct arguably the most intrusive background checks of any employer in the country. When you consider that some of the positions require security clearance and deal with issues bordering on national security, it isn’t hard to understand the need to know about a candidate’s mental health history.
• Health Care Institutions: It stands to reason that medical institutions would want to run checks on their potential employees’ mental health records, as the services they offer involve caring for others. For example, hospitals would like to know whether a candidate applying for a nursing role poses a threat to their most vulnerable patients.
• Education: Many educational institutions look into a potential hire’s mental health history to determine whether they’re fit to fill a role requiring the mentorship of others. This is especially true where the applicant is teaching young children, in which case the school will be extra careful not to expose their students to danger.
• US Military: Military personnel can expect their background checks to include checks on their mental health, as their job entails the defense of the homeland.

Other employers not listed above may look into a potential employee’s mental health history when the job requires a high level of safety, like chemical engineering, manufacturing, automotive, construction, transportation, and security industries.

Both the HIPAA and the Equal Employment Opportunity Commission try to deter employers from making employment decisions based on an individual’s mental health history. However, unfortunately, it’s perfectly legal for employers to reject a potential employee based on what they learn, if motivated to dig deeper (by requesting access to the individual’s medical records).

When the 72-Hour Hold Will Show Up No Matter What

Even if your prospective employer doesn’t look into your mental health history, they may still learn about your 72-hour hold, as a basic background check involves checking whether a candidate has a criminal record.

As mentioned above, if you’re held due to criminal behavior, the 72-hour hold will end up on your medical and criminal record. The Freedom of Information Act governs the latter record and allows anyone to request access to information stored by federal government agencies. So, your employer can request to see your criminal record.

Frequently Asked Questions

How Long Does a 72-Hour Hold Stay In Your Medical Record?

A 72-hour hold forms a part of your medical record, which is a history of your physical and mental health from birth to death. Therefore, a 72-hour hold will remain in your medical records for life.

Can I Still Be Hired if a 72-Hour Hold Shows Up During a Background Check?

Yes. While some industries are more unforgiving than others, not all employers will turn away a candidate with a history of being held for 72 hours.

Who Can Put People in a 72-Hour Hold?

California law recognizes only designated professional personnel as individuals who can place someone on a 72-hour hold. Such people may include the police and mental health professionals, among others.

Conclusion

Depending on what actions led you to be placed in a 72-hour hold, it can show up on both your criminal and medical records or only your medical record.

If you didn’t commit a crime when you were placed in hold, employers are unlikely to learn about it during a background check, thanks to US confidentiality laws regulating medical records.

However, if you were held after committing a crime, the 72-hour hold will go on your criminal record, which is publicly accessible to all.