Combatting COVID-19 In Psychiatric Hospitals: When The Only Thing You Can Do Is Go To Court
Kathy Flaherty, Executive Director at the Connecticut Legal Rights Project
Connecticut Legal Rights Project, Inc. (CLRP) provides legal representation to clients who are eligible for mental health services from the State of Connecticut Department of Mental Health and Addiction Services (DMHAS). It was clear in early 2020, when the news first reported deaths of patients on psychiatric wards in South Korea, that our clients would be impacted by this global pandemic. What we didn’t know was how we could help them.
Figuring out what to do became more challenging when I woke up with a fever on March 12, 2020. I sent an email to CLRP staff saying that I would see them in two weeks, because back then we thought that’s what would happen. On March 15, 2020, the Governor issued an Executive Order that restricted visitors to inpatient psychiatric facilities. Our office closed to the public as of March 16, 2020 although staff continued to work remotely.
On March 24, 2020, DMHAS reported that a staff member had tested positive for the virus. Two days later was the first announcement of a patient at Connecticut Valley Hospital testing positive.
On April 18, 2020, CLRP wrote a letter to Governor Ned Lamont and Attorney General William Tong asking that the state take action, pursuant to the Governor’s executive authority, to protect the safety and civil rights of patients in state-operated psychiatric facilities. We received no response to that letter.
DMHAS announced the first of what would ultimately be five patient deaths on April 30, 2020. On that same day, CLRP filed a lawsuit in federal court to ensure that patient safety would be protected.
The Bazelon Center for Mental Health Law and the Center for Public Representation joined CLRP as co-counsel, and an amended complaint was filed on May 7, 2020. The Impact Fund provided funding to support litigation costs.
There were a total of seven attorneys from all three organizations working on the case. We engaged in two weeks of mediation but were unable to resolve the injunctive relief. We ended up taking thirteen depositions and worked with five experts: an infectious disease physician from Massachusetts General Hospital; a psychiatrist; and three experts on managing state hospitals and discharge of patients.
The state implemented most of our demands for infection prevention and control, reduction in census, and isolation and quarantine protocols. Finally, in January 2021, staff were being vaccinated and plans were announced to begin vaccinations of patients in February and March of 2021. With almost all of the injunctive relief in place and significant expenses for expert work remaining, the named plaintiffs agreed to dismiss the case without prejudice.
Some might ask what business civil rights lawyers had bringing litigation against the state when the entire world was trying to contend with a novel coronavirus. My response is this: our clients, afraid of dying, called us and asked us to help. We approached the state on behalf of our clients asking them to change their ordinary course of business when the first positive tests were announced. When the Department announced the first death of a patient in its custody, the press release included their “thoughts and prayers.” Our clients needed more: they needed infection control and prevention, including PPE used properly; they needed reduction in census so that social distancing measures could be implemented; they needed isolation and quarantine protocols.
Some may say that all of those things would have happened in time, and those folks may be right. Hindsight, as they say, is 20/20. But too often in this land of steady habits known as Connecticut, we don’t see change until a lawsuit is filed in court. We’re lawyers, so that’s what we did. We could not have done it without the financial support of the Impact Fund, who recognized the particular dangers faced by people held in psychiatric facilities and funded this litigation.