Court of Appeals Denies State Lawyers Access to Psychiatric Patients in Nursing Homes

In a 4-3 decision, the New York State Court of Appeals refused this week to order nursing homes to provide lawyers from the state's Mental Health Legal Services access to psychiatric patients and their medical records. The suit sprang from investigative reporting about the Pataki-era practice of moving the institutionalized mentally ill from state facilities into nursing homes not licensed by the Office of Mental Health, which won a Pulitzer Prize for The New York Times in 2003. The court found that MHLS, which is mandated to provide legal services and assistance to "individuals with mental disabilities" by state law, do not have jurisdiction over patients in the nursing homes precisely because the nursing homes are not licensed by OMH.

Writing for the majority, Judge Eugene Pigott Jr. found that the Mental Hygiene Law which sets MHLS' jurisdiction is written in such a way that the jurisdiction is based on the nature of the facility and not on the status of the patients. If it's not a facility licensed by the OMH, MHLS has no jurisdiction over the same patients who were receiving legal services in licensed facilities.

But precisely which facilities are, in fact, subject to OMH licensure is a matter committed, in the first instance, to the Commissioner's discretion and expertise. Here, OMH decided that licensure was not required. Because only OMH is authorized to determine whether a facility is required to have an operating certificate and MHLS's jurisdiction is expressly limited to licensed facilities, MHLS has failed to raise an issue of fact. Thus, defendant nursing homes are entitled to summary judgment dismissing the complaint.

Writing for the three dissenting judges, Chief Judge Jonathan Lippman pointed out that the Mental Hygiene Law was amended in 1993 specifically to keep health care providers from refusing to provide access to MHLS lawyers.

"Confusion arises . . . with respect to MHLS services to persons in community residences, group homes, intermediate care homes and family care homes, all of which are places where services are rendered to patients with or without the benefit of a Mental Hygiene Law legal admission status. Currently there are more than 29,000 such patients; and they are in as much need of MHLS protective services, advice and assistance as persons who reside in hospitals and schools.

"In actual practice, MHLS has considerable responsibilities towards these classes of patients. Without regard to type of facility or a person's lack of legal admission status therein, MHLS is involved in matters including but not limited to: applications for judicial authorization for medical treatment; surrogate decision making for medical treatment; transfers of patients; discharge planning; confidentiality and access to records; investigations of patient abuse; proceedings for appointments of conservators, committees and guardians; recommitment of forensic patients; restraint and seclusion; forced medication; assurance of quality care and protection of patients' rights in general; interstate transfer; and objections to treatment . . .

"While most mental health professionals recognize the value of the services provided by MHLS to persons not having legal status, a few dispute their authority to do so. In those instances MHLS must first do battle to establish a jurisdictional foothold. Sometimes this may require litigation, which may be protracted and which may yield inconsistent results. The effect is that time will be lost and precious resources diverted away from the real needs of a class of persons who may truly require assistance."

Lippman also pointed out that OMH, which helped create the situation to begin with, should not be in a position of deciding whether MHLS, its watchdog agency, has a right to investigate it. Pigott, while specifically declining to discuss the merits of OMH's actions, said that the two agencies should, essentially, settle it in someone else's court.

Meanwhile, some patients haven't been able to see a lawyer for seven years. An attorney for the nursing homes denying access said MHLS attorneys could see a patient if the patient independently requested it, but MHLS Deputy Director Dennis Feld, co-founder of the Special Litigation and Appeals Unit, isn't impressed.

Asking the patients themselves to take the initiative to contact the legal service and raise criticisms about their treatment and status is unrealistic, Seld said. "We have a right to speak to these individuals in private. We do at the psychiatric centers," he said.


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