Judge forcing release of records involving mentally ill who have died in state care - East Valley Tribune: Politics

Judge forcing release of records involving mentally ill who have died in state care

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Posted: Sunday, August 3, 2014 2:15 pm

For the second time in less than a decade a judge has ordered state health officials to surrender detailed records of incidents where people who are mentally ill have died while in state care.

In a sometimes harshly-worded ruling, Pima County Superior Court Judge James Marner ruled that state Health Director Will Humble was wrong in refusing to provide full reports to the Pima County Human Rights Committee.

Marner said the Legislature in 2000 created the committee specifically to promote and protect the rights of individuals with behavioral health problems. But in 2012 — and despite an earlier court ruling to the contrary — he said Humble concluded the committee was entitled to only much shorter statistical reports.

The judge said that, in making that decision, Humble “closed off the only meaningful avenue of information the committee needed to do its job.”

The judge said he assumes Humble was aware of the existence of the more detailed reports. And he pointed out that, by law, the committee is a part of the health department.

“Despite this ... the director refused to provide the reports and the information contained therein to the committee,” Marner wrote. “This action was not supported by substantial evidence, is contrary of applicable law and amounted to abuse of the director's discretion.”

Humble said Friday he is reviewing the ruling and has not decided whether to appeal.

The decision likely will have impact beyond Pima County. That is because there are similar oversight organizations that cover both patients within the Arizona State Hospital as well as those who live in the rest of the state.

If litigation does not resolve the problem, Sen. Nancy Barto, R-Phoenix, said lawmakers may intervene. Barto, who chairs the Senate Health Committee, said these groups need the information to properly perform their oversight function.

Ken Karrels, a psychologist and member of the Pima committee, said his organization got a ruling in 2007 from Pima County Superior Court Judge Leslie Miller saying it was entitled to reports providing details of deaths.

But three years later the reports dried up when state officials said they were no longer doing that specific reports that Miller ordered disclosed. Karrels said that left committee members with simply statistical details — details he said were useless in the group doing its job.

For example, he said someone who was discharged from the state hospital might be found dead days later in a boarding home, perhaps a suicide. Karrels said his committee needs specifics to determine not just the medical cause of the death but other details that might show the state failed to provide necessary follow-up visits and care.

Cory Nelson, the health department's chief of behavioral health, said the most recent figures show 241 people in Pima County receiving services died during the fiscal year. He said while most were from natural causes, some deaths were related to care or lack thereof.

Nelson acknowledged the 2010 change to a more detailed report. But he said this was part of the state's efforts to get more information about deaths and not a move to get around the 2007 court order.

More to the point, Nelson said much of the information in the new reports is protected as private by other state or federal laws. He said that made them off-limits to the committee.

But Martner, in his ruling, said there is no basis for that claim.

He said the Arizona law requiring the committee to get information allows Humble to redact any personally identifiable information prior to disclosure. Committee members who violate any confidentiality are subject to criminal penalties.

“In sum, the statute reflects a legislative intent that human rights committees be given broad access to data compiled by ADHS while establishing strict requirements that committee members must follow to ensure the privacy of the data,” the judge wrote.

Marner said the reports the committee members want — and to which they are entitled — contains information relevant to a particular death. He said it includes information about the work of clinics, nurses, doctors and therapists separate from the death itself and “contain substantive medical decisions about whether, in fact, there were departures from the standard of care.”

“This is client information the (committee) needs to fulfill its statutory mandate to conduct independent oversight of ADHS on the subjects of abuse, neglect and denial of patients' rights,” the judge wrote.

Barto agreed. She said the whole purpose of this review is to see if how things were handled “and making sure that it's addressed, it doesn't happen again, or somebody's held accountable.”

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