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New York lawyers denied access to patients
April 6th, 2010
New York State’s highest 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 to 3, concluded last week that because the state’s Office of Mental Health had decided not to license the nursing homes, lawyers for the Mental Hygiene Legal Service lacked jurisdiction there.
In 1996, state mental institutions began 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, 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 neurobiological units.
Sarah Lichtenstein, a lawyer for the five nursing homes in Queens, Long Island and Staten Island named in the suit, said their residents had 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.
Ms. Lichtenstein said most nursing home residents were 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.”
Dennis Feld of the Mental Hygiene Legal Service’s Second Judicial Department, which brought the suit, said the service had been trying to get access to clients whom they had previously represented at state psychiatric centers for seven years. He said that the clients remained in restrictive settings and still needed advocates, and that now a legislative change would probably be required so the lawyers can carry out their state mandate to represent them.
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