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Q & A - Criminal Prosecution of Institutional Residents by Staff

Susan Stefan

Criminal Prosecution of Institutional Residents by Staff

Prepared for TEAC/NAPAS
Susan Stefan
Center for Public Representation
July, 2003

Question: My client is being prosecuted by a staff member at the hospital where he resides for assault arising out of a struggle during a restraint procedure. Is there any case law on this issue, and what are my best options to prevent the criminal prosecution of my institutionalized clients?

Answer: When a mental health professional files criminal charges against an institutionalized patient with whom they have a professional relationship for actions that arguably arise out of the patient’s condition, serious questions arise which should be presented to the professional and to the administration of the hospital. Arguments made in favor of prosecuting an individual patient often simply distract attention from the systemic problems at the hospital reflected in the desire of professionals to criminally prosecute the people entrusted to their care.

    The argument that criminal prosecutions are “normalizing” ignores the fact that hospitals are not “normal” community settings, in which freedoms, rights, and choices are balanced by responsibilities. The very fact that an individual is in the hospital reflects a judgment by the patient or others that he or she has a mental or emotional condition of sufficient severity that community life would not be safe for the individual or others. Often, the purpose of the hospitalization is to provide treatment for the very condition involved in the assault. Criminal prosecution, to say the very least, interferes with the treatment alliance and any sense of safety the patient may have had at the hospital. The advocate should certainly take steps to ensure that the prosecuting professional has no further treatment relationship with the client, and that this is accomplished in a way that is not disadvantageous or punitive to the client.

    Although the theory that criminal prosecution somehow serves treatment purposes has largely been discredited since it was first advanced in the 1980s, for those who advance this argument the response should be to ask whether the patient has a right to refuse this “treatment” of criminal prosecution. If the patient is competent, he or she presumably has the right to refuse. If the patient is not competent, then a licensing complaint can be made against a mental health professional for filing criminal charges against a patient believed to be incompetent. Again, if the “treatment” argument is used, an advocate or attorney can reply that this is obviously experimental treatment, since there are certainly no studies validating the therapeutic effect of criminal prosecution, and as experimental treatment, both the mental health professional and the facility are under an obligation to submit it to an Institutional Review Board.

    Administrators and staff may be unaware of the enormous consequences for a patient of having a criminal record in obtaining housing, employment, retaining child custody, or myriad other examples crucial to reintegration into the community. A decision to criminally prosecute may implicate Olmstead in the sense that it may foreseeably restrict the patient to long term unncessary institutionalization by restricting the patient’s options in the community. It is possible that after reviewing the ways in which a criminal record will obstruct the already difficult task of reintegration into the community, some facilities or truly well-intentioned professionals will recede from their determination to prosecute.

    In fact, patient prosecutions are often a strong signal that staff are feeling unsafe, untrained and unsupported by hospital administrators; sometimes hospitals initiate prosecutions to show support for staff. Both of these situations reflect “us against them” mentalities that clearly reflect problems in the underlying treatment environment. Sometimes prosecutions reflect frustration with a patient who is particularly difficult to treat, or who is perceived as “splitting staff.” For example, female patients, diagnosed with borderline personality disorder, are likely to have been sexually abused as children and to be utterly panic-stricken and traumatized during a restraint procedure in which men are involved. For these women to be dragged into court, often when their own abusers escaped unaccused and unpunished, is enormously traumatic and does untold damage. Thus, administrators should be encouraged to examine whether these factors play a role in the decision to prosecute a particular patient for assault, especially for an assault that is basically the result of a botched restraint procedure.

    If these approaches fail, administrators and professionals can be reminded that patients have successfully sued hospitals for damages as a result of the hospital’s “policy of criminally charging patients for behavior resulting from their mental condition, regardless of whether the patient had the capacity to form the requisite criminal intent,” McCartney v. Barg, 643 F.Supp. 1181, 1183 (N.D. Ohio1986). The plaintiff’s injuries included being sent to jail, where she received no treatment for her mental condition, until she was found incompetent to stand trial after five months. The court in McCartney rejected defendants’ argument that they could not be held responsible for the conditions in the jail, noting that they could have dropped criminal charges against the patient and regained custody of the patient at any time. The court found that the allegation that defendants had adopted a policy to file criminal charges against patients stated a constitutional claim under Youngberg v. Romeo, and that such a policy could constitute “a substantial departure from professional judgment, practice or standards.” At trial, plaintiffs won a $250,000.00 verdict (personal communication from Jane Randall, counsel for plaintiff).

    In addition, the violent behavior can often be attributed to failures on the part of the facility, either to have staff sufficiently trained in restraint procedures, or to provide treatment aimed specifically at the effects of trauma on behavior, or to appropriately provide for patient safety, or to have acted insufficiently to reduce restraints. These failures may implicate constitutional or statutory rights of the patient.

    As to underlying criminal charges, courts have found that “prosecution of an institutionalized person for acting out as might be expected is neither `constitutionally nor morally justified,’” State of Wisconsin v. Jennifer Hartman, No. F-933164 (Circuit Ct. Milwaukee County June 15, 1995)(transcript of hearing available from the Center for Public Representation), quoting State v. Cummins, 403 A.2d 67 (N.J.Sup.Ct. 1979). The court in State v. Cummins held that conviction of such a patient would constitute cruel and unusual punishment under the Eighth and Fourteenth Amendments.

    As the reader may have noticed, these cases often involve women. Often these women have diagnoses of borderline personality disorder or PTSD and histories of severe childhood sexual or physical abuse. Usually the abusers were not prosecuted for far more serious offenses than the offense for which the patient is now being prosecuted. There is considerable research showing that women with trauma histories do poorly in jail, and a deliberate decision to expose someone with such a history to possible jail time may, as indicated above, constitute a substantial departure from professional judgment or malpractice.

    Depending on how the State’s licensing authority operates, and what its priorities are, a licensing complaint may be considered. Issues of breach of confidentiality are of manifest concern. I have previously written a Q&A regarding the HIPAA implications of criminal prosecution of an instituionalized client. Mental health professionals are governed by ethical principles that include the obligation to preserve client confidentiality  

(See footnote 1) , avoid conflicts of interest  

(See footnote 2) , act in the best interests of their patients, and avoid harm to their patients.  

(See footnote 3)  In many cases, filing criminal charges against one’s own patient might be seen as implicating these ethical considerations.

    The best way to approach this issue is often by preventive systemic intervention rather than through individual cases. A mental health agency or facility can institute policies aiming at preventing or curtailing prosecutions by its staff if it gives them notice when they are hired of the existence of these policies. It is far more difficult for an agency or hospital to interfere with an individual staff member who has already filed the criminal charges. Education of district attorneys, many of whom do not want to pursue these cases in any event, may be useful. In the same way, working with the judiciary to emphasize the harm to patients of these criminal prosecutions, and the degree to which they indicate treatment failures, may be fruitful. This is an area where advocates may find that joint operations with the National Alliance for the Mentally Ill are possible, and thus render their advocacy more effective.


Footnote: 1Psychologists: Ethical Standard 5.0
Footnote: 2 Psychologists: Ethical Standard 1.13
Footnote: 3 Psychologists: Ethical Standard 1.14

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