page 14.4
FORCED COMMITMENT BY PEOPLE WHO CAN'T DETECT IRONY
"I didn't think this kind of thing could happen in my America."
"error rate"
Rockland
Police Lieutenant Barry Ashton defended the officers' actions, "We don't
have the time."
"for the insurance."
Paper: Boston Globe
Title: FLAWED LAW TURNS PATIENTS TO PRISONERS `SECTION 12' ADMISSIONS FUEL A BOOMING HOSPITAL BUSINESS
Date: May 12, 1997
Dana Davis had committed no crime, harmed
no one, when police slammed him face-down on his living room
floor and handcuffed him before his horrified wife and 6-year-old son. As
Davis lay there, an officer's knee on his back and
his face mashed against the carpet, it dawned
on him: All he had done, all he was guilty of,
was cracking wise to a psychiatrist he barely knew and didn't like Susan
Rockwell knows how Davis felt. Upset
about a dying friend, Rockwell went to Cape Cod Hospital to attend a support
group meeting. She was anxious and a bit disheveled, wearing a soiled
down coat that belied her achievements as a law school graduate and former
librarian. Based on her appearance and a
brief conversation, an emergency room doctor ordered
attendants to put her in a four-point restraint. Denied her pleas to
call her psychiatrist -- who says she would have argued against forced treatment
-- Rockwell was injected with drugs and rushed to the psychiatric
ward. She woke up the next day in a
locked room. A kind nurse brought her a cupcake
with a candle; it was her 45th birthday. Davis
and Rockwell learned hard lessons about a powerful Massachusetts law that is supposed to protect
mentally ill people from harm, but in practice has
become the linchpin of a mental health system increasingly dependent on
involuntary treatment and the lucrative public and private insurance payments
it brings. A Boston Globe Spotlight Team
investigation has determined that Massachusetts' emergency involuntary commitment law is out of
step, and behind the times, when
compared with the rest of the country. Massachusetts allows the nation's longest period of emergency
psychiatric confinement without court
review: 10 days, which can easily become 24 days. State
records and hospital data show the law was used more than 84,000 times
between 1990 and 1995, the latest year for which data is available, and
its use has increased each year. The law is now used in about two-thirds
of psychiatric admissions in Massachusetts; at some hospitals, it
is used in more than 80 percent of admissions. The
Globe also found that the law has been abused and misused by workers at
insurance-hungry hospitals eager to tap into a boom in Medicare and Medicaid
payments. Taken to its most extreme, in
recent years the law has played a role in the
death of a Holocaust survivor and severely broken arm of a pregnant woman.
More common, though, is the unmeasured emotional damage for people caught
in its web. Once released, unwilling
patients not only carry the painful memories of a forced
hospital stay, they learn it is nearly impossible in Massachusetts to hold anyone responsible
for an unwarranted commitment. Davis and Rockwell could forget about
winning damages -- or even an apology -- for their
humiliation, loss of liberty, and lingering emotional scars. "I
didn't think this kind of thing could happen in my America," Davis says of
his December 1996 ordeal. To many civil rights and mental
health advocates, the result is a system that
robs people of liberties, prevents them from seeking after-the-fact remedies,
and has the perverse effect among some patients of exacerbating the
very mental health problems supposedly being treated. "This
can happen to anybody," said Jennifer Honig, a lawyer with the Mental
Health Legal Advisors Committee, a state agency that acts as an advocate
and information resource on mental health issues. "People call us and
say, `How can we avoid this?' We tell them, `You can't. Just
stay calm
and
don't make a scene, and hopefully it won't be too bad.' " Outside
mainstream on civil rights, Commonly called Section
12, Massachusetts' emergency involuntary commitment
law forces troubled adults and children into presumably safe settings
-- psychiatric wards or hospitals where they cannot act on destructive
impulses. With more than 18,000 Section
12 orders being taken out annually in Massachusetts, an error rate of just 10 percent would mean
that some 1,800 state residents are ripped
from their lives and wrongly held as mentally ill
each year. Some advocates say the error rate is in fact higher. "There's
a bias toward incarceration," said Stan Goldman, director of mental
health law at the Committee for Public Counsel Services in Boston, which represents clients in
long-term psychiatric commitment cases. "It's relatively
easy for somebody to be committed under this process, and the fact
is that many, many people are committed for 10 days or longer for no good
reason at all." Its supporters say that in
theory, and usually in practice, the law is a lifesaver,
allowing emergency intervention to avoid terrible harm. To be sure,
there are numerous cases of Section 12 being credited with preventing
suicides or violence by getting disturbed people needed care. "If
you repeal the commitment laws, the Section 12 laws, and people start acting
in incredibly bizarre ways, where would they end up? They'd be in jail,
and not in a humane environment where they're being protected and treated,"
said Dr. Paul Barreira, deputy commissioner of the state Department
of Mental Health. On the surface, Section 12
seems straightforward enough. It allows emergency,
involuntary treatment for people whose mental illnesses are so severe
that failure to hospitalize them would "create a likelihood of serious
harm." That means the person is homicidal or otherwise violent; has
threatened or attempted suicide or serious self-injury; or is so deeply
disturbed that he or she is unable to avoid injury. If
a doctor, psychiatric nurse, psychologist or even a police officer believes
someone meets one of those criteria, he or she can apply to have the
person forcibly admitted for 10 days of psychiatric care -- a process known
as being "pink papered." If a psychiatrist with admitting privileges agrees
-- even if that doctor has never spoken to the patient -- the admission
occurs. Some advocates for the
mentally ill oppose all forced treatment. But up to that
point, Section 12 is in the mainstream when compared with similar laws
throughout the United States. Beyond that, however, Massachusetts has defied a trend toward greater civil
rights protections for the mentally ill. The
ten-day period in Massachusetts is two to three times as long as most other
states allow their residents to be held against their will before a court
reviews the case, according to a Globe study, undertaken with the American
Bar Association's Commission on Mental and Physical Disability Law. The
District of
Columbia and
25 states require court involvement within 72 hours
of an involuntary emergency admission, the study found. Fourteen states
require courts to become involved within five days of admission; the
remaining state laws vary, with most requiring court involvement in six
to eight days, the review found. Two other states, Rhode Island and Maryland, allow emergency commitments of up to 10 days,
but provide some safeguards not found in Massachusetts. Many states also have enacted
a "bill of rights" for psychiatric patients, such
as a New
Jersey law
that guarantees privacy, visitation, access to telephones,
and freedom from punishment, among other rights. Legislation to
guarantee such rights in Massachusetts has failed each of the past seven
years. "Shortening the confinement
period in Massachusetts is the biggest single reform
that would make a difference," said Steven Schwartz, a mental health
lawyer who is director of the Center for Public Representation in Northampton. "Now, there's no burden of
proof because you don't have to show anything to
anybody," Schwartz said. "Since we're not real good at doing it, we ought
to have real high standards." Without
oversight by any court or magistrate, some health care workers appear
to take a
lock-'em-up approach toward people who exhibit signs of mental
illness, even if they don't meet the legal standard of imminent danger. Perhaps
not surprisingly, one emerging protection from open-ended confinement
is the recent wave of managed care insurance restrictions on coverage.
"Dangerous" patients suddenly become cured when their
insurance
runs
out. "Everyone has been looking
for the magic cure for mental illness, and it seems
we've found it," said Goldman, of the Committee for Public Counsel Services.
"Lo and behold, in a week they're cured. The cure is the insurance
ran out and the hospital has no more reason to hold them." But
the fact that patients are eventually released does nothing to address the
indignity and inequities of needless incarceration. Advocates for the mentally
ill say that once someone is brought in under Section 12, he or she
is essentially trapped, whether treatment is needed or not. And in some
cases, a 10-day stay is only the beginning. If
within the 10-day period the hospital staff decides to seek a lengthier hospitalization,
the law allows up to two more weeks to pass before a hearing.
As a result, up to 24 days of
incarceration can pass before any
judicial
review. There is no way to know how
long the average patient stays after being hospitalized
under Section 12; the state Department of Mental Health does not
require hospitals to report such data, and the hospitals themselves have
a variety of ways of keeping track of how patients are admitted. Visit
to psychiatrist turns into nightmare Dana
Davis thought he knew his way around the mental health system. An unemployed
steelworker, Davis has lived with depression for decades. Wiry, just
120 pounds, with a graying ponytail and worried look, he shows every one
of his 48 years. Trying to get a handle on his
problems, and suspecting that his prescribed doses
of medication were too high, Davis sought help last year at the Brockton Multi Services Center, a satellite office of the state Department of
Mental Health. On Dec. 11,
1996, during his second
visit with a psychiatrist named Fe Festin,
Davis decided that session would be their last. "I
didn't like her too much from the first time
I met her . . . She didn't like the way I answered
questions," Davis said, acknowledging a tendency toward smart-aleck
answers. Relieved when she stood at
the door and said their time was up, Davis was unprepared for her parting
question. "She asked me to predict the future: `Can
you promise that you will not commit suicide between now and your next
meeting?' " Davis recalled. Unhappy
with Festin's treatment and believing the question to be a standard
sign-off, Davis was dismissive. "I said, `I'm no soothsayer,'
and I kept walking." She called
to him, saying that based on his answer she could
not let him leave. But Davis had heard enough and went home. Thirty
minutes later, three Rockland police officers were at his home, armed
with a Section 12 faxed by Festin. Said
Davis, "She was happy to see me leave until I said
that thing about
not being a soothsayer, but suddenly I became suicidal? I've had
suicidal thoughts for about 20 years.
I have never acted on them, and don't plan to.
But if that's all you need to get locked up, I'm going to have a lot of
company." The officers told Davis to come with them, so he put on his shoes and jacket.
Then he said he needed his medical file. "I
took one step forward and they threw me to the ground in front of my 6-year-old
and handcuffed me" Davis said. "I kept yelling, `I committed no crime.'
" Fortunately for Davis, when police arrived he had been talking on the phone
with his friend of 23 years, Steve Carlin, describing his disenchantment
with Festin. Davis put down the phone, but didn't hang up, so
Carlin heard the entire episode, including Davis's wife, Joan, screaming
his name. Carlin and his wife, a nurse, rushed to Brockton Hospital. With
help from his friends, Davis regained his composure, denied being suicidal
and was released six hours later. But that wasn't the end; along with
hospital and ambulance bills he cannot pay, the episode has exacerbated
his depression. "If my friends hadn't come,
or if I had insurance and was worth something to
them, I wonder how long I might've stayed," Davis said. He is still afraid
to confront Festin: "Being psychiatrists, they could push my buttons
and away I go." Despite a signed release from
Davis authorizing her to discuss his case with
the Globe, Festin declined comment. Asked
about handcuffing someone who is not accused of a crime, and who wants
to get a medical file, Rockland Police Lieutenant Barry Ashton defended
the officers' actions and said: "They want to get their underwear,
their toothbrush. To tie up two officers to do this, it's quite a
bit for us. We don't have the time." Second
thoughts on exclusion of judges. Keeping
judges away from decisions on emergency psychiatric admissions is a
relatively new development in Massachusetts. In 1832, Massachusetts became the first state to pass a law authorizing civil
commitment of the mentally ill; even then, a judge's order was needed
for an emergency admission. Later versions of the law allowed involuntary
treatment for up to five days without a judge's order -- or half
the current period. The current Section 12 law,
enacted in 1970, doubled the emergency confinement
period to 10 days, but recognized a need for court review. The law
required that district courts be notified of all emergency admissions and
be provided with evidence that hospitalization was needed to avoid serious
harm. If the evidence was shaky, an immediate hearing was required. But
that protection didn't last long. In
1971, one year after the law was enacted, the passage on immediate court
notification and review was quietly deleted -- and has never been restored.
That deletion was the work of then-state senator Jack H. Backman,
a Brookline Democrat, who at the time was chairman of the Committee
on Social Welfare. Reached at his law office
recently, Backman at first said he did not remember
the change. Upon reviewing the law, he said he remembered it, but was
unsure who had asked for the deletion. Backman
surmised it was designed to ease what he called "the burden on the court."
Then, 26 years after the change took effect, he acknowledged that it
might have been a mistake, saying, "I might have second thoughts." Questionable
uses of a flawed law There is no shortage of
cases where Section 12 orders were used under questionable
circumstances, or carried out in frightening ways, sometimes with
tragic results. Based on statements by family
members, a psychiatrist in 1989 issued a Section
12 order for Ruchla "Rose" Zinger, a 64-year-old Holocaust survivor
with a history of mental illness. Frightened and upset, she refused
to allow police into her home. They broke down the door, handcuffed
the 350-pound woman and bounced her down the stairs, one by one.
She lost control of her bladder, suffered a heart attack, and died. A
federal jury awarded her estate $850,000 from the city of Lynn and $500,000 from Life-Line
Ambulance, which helped to carry out the Section 12.
But the judgment was overturned last year when an appeals court ruled that
Lynn's policy of executing Section 12 orders without
warrants did not violate Zinger's Fourth
Amendment protections against unreasonable searches.
The US Supreme Court declined to hear the case. Four
years after Zinger's death, a Lynn police officer with a history of abuse
complaints broke the arm of a pregnant woman named Elizabeth Raymer while
serving a Section 12 order. In January, she won a $350,000 settlement
from the city in a case based on brutality claims, not rights
violations
of Section 12. Even when police are not
involved, examples abound of questionable Section 12
orders that escape court review. In
June 1995, Michael Saxe brought his mildly autistic son Corey to Charles
River Hospital in Wellesley. Corey's psychiatrist wanted to change his
medications, and suggested it could be done most quickly and safely on an
inpatient basis. "I just went to look at the
place," said Corey, a well-spoken 17-year-old. "Mainly,
my dad wanted to show me it wasn't like a prison." At
the end of the tour, the nurse who had been their guide asked if they'd be
willing to answer some questions. "She
said, `Have you ever thought about killing yourself?' " Michael Saxe recalled.
"He said he wasn't suicidal, but if his life is going to stay like
this for a long time -- meaning isolated, doesn't have friends, doesn't
get along in society -- he believes he has the right to choose, if his
life is horrible. I thought that was a perfectly rational, reasonable answer." Corey
was told to wait outside. While Corey read a magazine, the nurse told
Michael Saxe his son should remain at the hospital. "I said, `You're out
of your mind. We came here for a tour, and we're leaving,' " Saxe said. The
nurse went to get a psychiatrist, and then a hospital administrator, both
of whom did not speak to Corey but backed the nurse's diagnosis, Saxe said.
When he stood to go -- with his son -- the administrator threatened to
have him arrested, Saxe said. Crestfallen
and unsure of his rights, Saxe went to tell his son. "He was frightened
to death, scared out of his wits and felt he had been betrayed, that
I had planned this," Saxe said. "My
first reaction was to hit my dad," Corey recalled. "I punched him in the
mouth because I thought this was his doing." A
team of attendants quickly wrapped Corey in a restraining blanket and locked
him in what is called a "quiet room." Several hours later, a crisis team
from the state Department of Mental Health concluded Corey should remain
hospitalized. Over the next four days,
Corey was transferred to a unit at Westwood Lodge,
a private, for-profit
psychiatric facility that held a DMH contract for
care of adolescents. He hated it there, and was sent back to Charles River
when his father agreed to put all charges on his credit card. With Michael
Saxe and his wife making daily demands for Corey's release, the hospital
relented. The bill: $2,500, cut to
$1,500 when Michael Saxe complained. Saxe said the
larger cost was to his relationship with his son. "It
was catastrophic. It took him months before he would believe that I didn't
have anything to do with this," Saxe said. "He stopped going to therapy
because he didn't trust me and he didn't trust doctors." Charles
River Hospital's medical director at the time, Dr. Barry
Ginsberg, who now works for Choate
Health Systems, declined to comment despite a release
from the Saxe family. A Globe review of state
Department of Mental Health records found Charles River Hospital to be adept at
keeping its beds filled. Like other psychiatric
hospitals, its typical length of stay fell by half from 1990 to
1995. But its annual patient admissions have skyrocketed, largely because
the number of patients with two or more admissions in a given year increased
more than fourfold during the same period, far higher than the norm. Charles
River Hospital also has the highest average per patient
Medicaid charges in Massachusetts -- $798 per day -- during 1995, the latest year for
which figures are available. Corey
Saxe reached his own conclusion about what happened to him: "I realized
that everybody is in it for the money. It's a business. Call it the
mental health business." Victims are left with few
legal options Compounding the
unchecked power of Section 12 is the near-total inability of
its victims to win after-the-fact remedies. State law and a series of court
decisions virtually foreclose recourse for unwarranted admissions. The
law itself says everyone involved in a Section 12 decision is immune from
liability if they acted "in good faith," a standard so vague that legal
authorities consider it almost impenetrable. A
claim of "false imprisonment" is equally difficult to prove, since Section
12 by its very nature allows for people to be confined. Moreover, if
the person who signs the Section 12 order is a state employee, Massachusetts law makes them immune from liability even in
cases of injury due to their negligence. The
Massachusetts Civil Rights Act isn't much help either, legal authorities
say, because it requires proof that someone acted illegally, an
arduous task in the context of Section 12. Federal
civil rights claims are just as unlikely, following a landmark 1994
court decision that said to win such a claim a victim would have toprove the illegal conduct was committed "under
color of state law." That effectively exempts private
doctors and private hospitals that now handle the
majority of Section 12 admissions. That
same decision also put up another hurdle: In claiming a federal civil rights
violation, a key element would be denial of due process; however, the
court said depriving people of their liberty under Section 12 is not a due
process violation. Having
specialized in civil rights law at Howard University, "I was very aware
how much my rights were being violated. It was very degrading knowing
what they were doing to me and not being able to do anything about it,"
Rockwell, 50, said. From the start of her
two-and-a-half-day stay at Cape Cod Hospital's psychiatric unit in January
1992, her caretakers consistently wrote notes in
her file indicating she was a threat neither to herself nor others. And yet,
they billed her for $2,800 worth of care her doctor says she didn't need. "She
had not been a danger to herself," said her private psychiatrist, Dr. Christine
A. Barney. "She didn't need hospitalization, and she didn't need forced
treatment." As a result of her
experience, Rockwell has suffered nightmares and flashbacks,
symptoms of post-traumatic stress disorder, said Barney, who spoke
with Rockwell's permission. Like Charles River, Cape Cod Hospital has kept a full house. Between 1990 and
1995, the hospital made up for decreased lengths of stay by increasing its
annual population by almost 50 percent, and by more than doubling the number
of patients who return for repeat visits. "When
I get clients saying something terrible happened, and they picked me up,
I usually now have to tell them, `Well, so what?' There's not a lot more
I can do," said Schwartz, of the Center for Public Representation. Section
12 enters a domestic dispute. Beyond
court cases, and absent legal remedies, an example of the lingering costs
of Section 12 can be found in Wenham, where a husband laments his role
in what happened to his wife. In
late August 1993, Judene Shelley returned home after chaperoning a week-long
summer camp. While there, she had decided to change her life, which
in her mind had become an endless whirl of conforming to her Mormon upbringing
and caring for her husband and five children. So
she went on strike; call it household civil disobedience. Showing the strain
of her decision, she began acting eccentrically, singing out and acting
silly. But she was never suicidal, and there was no suggestion that she
posed a threat to anyone. But based largely on the
anxiety of her husband, Bill Jack, a Section 12 was
issued, complete with a police escort to the hospital. Shelley spent a week
in Salem Hospital, she said, for being "a woman who turned into a feminist
overnight." For nearly four years,
Shelley has struggled to overcome what happened to her.
"How do you take a label away? You move away, you forget that old person.
Or you go back to your same place. But everywhere you go you have to
be real careful." Sitting in the family
kitchen, her husband rues his role in an episode that
has shaken their 19-year marriage to the point where Shelley is now talking
of divorce. "I regret the way it's turned
out," Jack says softly, acknowledging how easy
it was to have his wife locked up. "Now, I wouldn't seek a Section 12.
I'd set up a safe environment for her, a place where she could sing."
Globe Online / This series, plus related links, is available on
Globe Online at http://www.boston.com.
The keyword is spotlight.
Copyright 1997 Globe Newspaper Company
Author: This spotlight Team series was prepared by editor Gerard
O'Neill, reporters Mithcell Zuckoff
and Dolores Kong, and researcher Cindy
Rodriguez. Today's report was written by ZuckoffSection: Metro
Page: A1Copyright
1997 Globe Newspaper Company