New York’s top court has refused to order nursing homes to give state lawyers access to hundreds of psychiatric patients so they can advocate for their rights to treatment alternatives, living conditions or even release.
The Court of Appeals, divided 4-3, concluded the state Office of Mental Health decided not to license the nursing homes, so lawyers for the Mental Hygiene Legal Service lack jurisdiction there.
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Judge Eugene Pigott Jr. declined to express an opinion for last week’s court majority on whether OMH made a wise decision, but said it could be challenged in a separate legal proceeding. Judges Victoria Graffeo, Susan Read and Robert Smith concurred.
Chief Judge Jonathan Lippman wrote for the minority that courts could not “cede to bureaucrats” the decision about when and where lawyers are needed “in defense of basic liberty interests.” Judges Carmen Beauchamp Ciparick and Theodore Jones Jr. agreed.
State mental institutions began in 1996 discharging patients to nursing homes for continued but lower-level care. The New York Times reported six years later that many were confined to highly restrictive “neurobiological units” in nursing homes without lawyers to protect their interests.
The lawyers advocate for the patients on issues like getting or refusing care and treatment, including psychotropic drugs, discharge planning, privileges and access to fresh air, exercise, phones and visitation, which are limited in nursing homes.
The Mental Hygiene Legal Service, established in 1965 to guard the rights of the mentally disabled in institutions, investigated the newspaper report and sought access to the patients. The nursing homes said no, and lower courts agreed. Meanwhile, the nursing homes shut down the so-called “NBUs.”
Sarah Lichtenstein, attorney for the five nursing homes in Queens, Long Island and Staten Island named in the suit, said their residents have privacy rights and the skilled nursing facilities could not unilaterally agree to letting the lawyers see them and their medical records. “If they requested to see a particular resident and the resident requested to see them, our clients would not prevent that,” she said.
Lichtenstein said most nursing home residents are there voluntarily. “If they want to live somewhere else and be discharged they can,” she said, though that can be “subject to what’s in their best interests healthwise. If they can’t care for themselves, it gets more complicated.”
In the MHLS Second Department, which brought the suit, deputy director Dennis Feld said they’ve been trying to get access for seven years to clients that they previously represented at state psychiatric centers. He said they remain in restrictive settings, still need advocates, and now a legislative change would probably be required so the lawyers can carry out their state mandate to represent them.
Feld said there are probably about 200 affected nursing home patients in his region and more in the other three departments around the state.
Asking the patients themselves to take the initiative to contact the legal service and raise criticisms about their treatment and status is unrealistic, Feld said. “We have a right to speak to these individuals in private. We do at the psychiatric centers,” he said.
By Michael Virtanen,Associated Press Writer
Copyright 2010 The Associated Press.
peaches, I wouldn’t be so quick to think that all the mentally ill are “prisoners” in nursing homes. Some are even elderly and have no where else to live. They are under medicaid and don’t need acute hospitalization.
Glad they shut down the mental health units because that sounds very restrictive. The first act or threat of an act which is a danger to themselves or others, then they could be right back in an acute care.
mental hospital if they haven’t run out of their mental health acute psychiatric hospitalization days.
Marie, like most patients medical or otherwise, the hospital only wants to keep patients for as long as insurance or medicaid (welfare) or medicare pays. So, if you are in rehab you are there as long as insurance pays.
Now these lawyers want to sue to get more $$$ out of taxpayers, hospitals and insurers. Do you think that it really helped the mentally ill when they released them back in the day to no or little help or supervision? Many of the homeless are these people. Even with all the social service help they can have, many don’t want it.
North Shore Syosset trys to put psychiatric patients into nursing homes or pilgram state as a way to get them discharged early.
Makes you wonder what they’re hiding…they are also probably making $ on those poor souls…sounds like they’re holding them prisoner.