Harris County judge backpedals under pressure on psychiatric care issue

Changed course after Attorney General's office agreed to review matter

Harris County Judge Rory Olsen is now accepting involuntary psychiatric commitment requests signed by doctors of osteopathic medicine, a reversal of his position that health care leaders complained aggravated the area's already limited access to mental health care.

Olsen on Friday changed his policy to only grant the requests from medical doctors following Texas Attorney General Ken Paxton's decision to review whether osteopathic doctors have the legal authority to certify an individual is mentally ill, dangerous and in need of commitment.

"I consider this the equivalent of a case on appeal," said Olsen, a Republican in his 18th year as a mental health probate judge. "It's pretty standard that when a case is under appeal, you freeze everything."

Olsen said medical providers have been informed DO-signed commitment requests will be granted until Paxton issues an opinion and after if he sides with osteopathic doctors.

The controversy arose in early September, when Olsen rejected a commitment request that included an osteopathic doctor's signature, arguing that an "ambiguous" provision of Texas law suggests only medical doctors can sign medical examination forms. He subsequently directed his staff to reject DO-signed applications. He was the only judge in the state thought to be rejecting such requests.

The change in policy upset many in the medical community, as the Houston Chronicle reported earlier this week. Leaders of numerous societies, including the nearly 50,000-member Texas Medical Association, wrote him trying to clarify that MDs and DOs are equal under state law and expressing concern about the likely effect on the county's already undermanned psychiatric force.

Such leaders Friday expressed great relief at Olsen's reversal. Dr. Don Read, TMA's president, said Olsen "made the correct decision" and Stephen Glazier, chief operating officer of UTHealth Harris County Psychiatric Center, called it a "positive development for patient welfare."

Olsen said the issue has been "blown out of proportion," claiming there aren't many hospitals in Harris County who have osteopathic doctors signing psychiatric patient orders. He called Paxton's decision to render an opinion "a good compromise."

Paxton's review was solicited by state senators Charles Schwertner and Joan Huffman. In a statement Thursday night, Schwertner referred to Olsen's "altogether puzzling decision that seems to defy decades of established legal and medical precedent" and said he is asking the attorney general to issue a legal opinion "affirming the right of doctors of osteopathy to practice medicine in Texas."

"The simple fact is, Judge Olsen doesn't have the authority to decide which physicians he does or does not want to listen to," said Schwertner, R-Georgetown, chairman of the health and human services committee and also a medical doctor. "Regardless of this man's opinion, the law governing the practice of medicine is exceedingly clear: DOs — just like MDs — are fully-trained, licensed, and accredited physicians with all the rights and responsibilities that entails. Period."

Earlier Thursday, leaders of professional medical organizations and hospitals had met about the matter, concerned about "possible downstream effects." Officials in attendance said the conversation explored all possible solutions, including a lawsuit.

Osteopathic doctors, whose specialties include psychiatry, represent about 10 percent of the Texas physician workforce. More hands-on and prevention-oriented, osteopathic medicine was developed in the second half of the 19th century as a rejection of the then-prevailing system of medical thought before gradually moving into the mainstream in the 20th century.

DOs ultimately achieved the same practice rights as MDs in all 50 states. All told, more than 96,000 osteopathic doctors now practice in the U.S.

Texas medical leaders were mystified by Olsen's September action because previous DO-signed applications had sailed through his court. Olsen said last week he hadn't noticed any before.

He cited a section of the state health and safety code that says, "a physician shall examine the person" and defines a physician as "a person licensed to practice medicine in this state."He said that to him, the term physician implies a medical doctor and rejected arguments that the law already clearly establishes physicians either can be medical doctors or doctors of osteopathic medicine because a "specific" provision in the code trumps a more "general" one.

The judge wrote doctors last week that he was open to persuasion, but suggested it would take a citation of an appellate court or an opinion from Paxton's office. Olsen said the best solution would be for the Legislature to clarify the law.

Dr. David Garza, president of the Texas Osteopathic Medical Association, Friday expressed gratitude to Schwertner and Huffman for requesting the attorney general's opinion but remained troubled by Olsen's original, "baffling" directive, which he said caused "a trying month for many DOs."

Dismissing the call for a legislative solution, he added that "this is clearly a case of one judge who chose not to follow the law as written."

Others seemed more focused on the outcome. Dr. George Santos, medical director of Houston Behavioral Healthcare Hospital and a former president of the Houston Psychiatric Society, called Olsen's new policy "a more reasoned approach that does not disrupt patient care while the Attorney General considers his opinion." He said it will restore psychiatric care to more people in need.

It is unclear how quickly Paxton will issue an opinion on the matter. Kayleigh Lovvorn, his spokeswoman, said Friday that most opinions are issued within 180 days of the request, though the amount of time required may vary depending on the volume of research required and the number and length of commentaries and briefs received.

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Harris County judge backpedals under pressure on psychiatric care issue