Mr. C’s authorized representative requested that Mr. C’s hearing be open to the public. Usually Local Human Rights Committee meetings on individual cases are closed so I share this to explain why this hearing opinion is not confidential.
WESTERN STATE HOSPITAL LOCAL HUMAN RIGHTS COMMITTEE
OPINION IN THE MATTER OF C.C. v. WESTERN STATE HOSPITAL
TO: Mr. Alex R. Gulotta, Esq., attorney for C.C.
Mr. Nathan J. D. Veldhuis, Esq., attorney for C.C.
Dr. Jack Barber, M.D., Director, Western State Hospital
FROM: Ms. Deborah B. Harris, Chair, LHRC
on behalf of the Western State Hospital LHRC
DATE: May 25, 2008
RE: Findings and Recommendations on the Western State Hospital LHRC
In the Hearing of C.C. v. Western State Hospital (WSH)
I. The Hearing
The above case was brought by attorneys Alex Gulotta and Nathan Veldhuis
on behalf of Clara Ramos, sister and authorized representative for WSH
patient C.C. In order to provide a full and fair hearing in this matter, the WSH
LHRC met on January 28, 2008, April 28, 2008, and May 19, 2008 to
consider the testimony of witnesses and to examine exhibits put forth in
evidence during the hearing. The attorneys for Ms. Ramos and C.C. argued
that WSH violated C.C.’s rights as protected by the DMHMRSAS Human
Rights Regulations related to restrictions on the freedoms of everyday life (12
VAC 35-115-100), use of seclusion (12 VAC 35-115-100), dignity (12 VAC
35-115-50), services which do not meet sound therapeutic practice (12 VAC
35-115-60), and lack of meaningful opportunity to participate in decision
making (12VAC 35-115-70).
The LHRC members who were present throughout the three days of the
hearing and decided this case are:
Deborah B. Harris, Chair
Karen Cochran
Ski Washington
Linda Thumma
Chuck Collins, Regional Advocate, Region I, provided technical assistance to
the LHRC throughout the hearing.
Page 2 – OPINION IN THE MATTER OF C.C. v. WSH
Alex Gulotta, Esq. and Nathan Veldhuis, Esq. represented C.C. and Clara
Ramos, sister and authorized representative of C.C. C.C. was not present
during the hearing. Mark Seymour, Human Rights Advocate was present on
behalf of C.C. and Ms. Ramos as well.
Jack Barber, M.D., Director of WSH and Susan Frushour, facility liaison to
the WSH LHRC represented WSH at the hearing.
A court reporter employed by Mr. Bulotta recorded the entirety of the hearing.
II. The Presentation of Evidence
Ms. Harris presided over the hearing and at the start of each day called for
introductions of everyone present. She also established at the first meeting
that Ms. Ramos, on behalf of C.C. chose to hold the hearing in open session.
She then established the basic procedure for the hearing: an opening
statement first by C.C.’s attorneys, then an opening statement by WSH’s
representatives, followed by C.C.’s presentation of evidence (witnesses and
exhibits), followed by closing statements from both sides.
Prior to opening statements, Mr. Gulotta made two preliminary motions:
First, that all witnesses be sworn in, and second, that all witnesses be
sequestered and instructed not to discuss their testimony with anyone during
the pendency of the hearing. After discussion, the LHRC denied the motion
for swearing in witnesses, and approved the motion regarding all witnesses be
sequestered and instructed not to discuss their testimony.
After opening statements from both sides, C.C.’s attorneys called the
following witnesses and entered exhibits 1-36 into evidence:
Jerry McKeegan, Ph.D., Head of the Behavioral Treatment Team
Steve Johnson, Ph.D., psychologist for C ½ Treatment Team
Suzanne Cook, RN, C ½ Treatment Team member
Robert Arrgio, RN, C ½ Treatment Team member
Mario Gomez, M.D., Expert Witness
James Gordon, Expert Witness
Jerry Smith, Behavioral Treatment Team member
Alejandro Rosa, Behavioral Treatment Team member
Susan Frushour, Designee for Dr. Jack Barber in his absence
Clara Ramos, sister and authorized representative for C.C.
Page 3 – OPINION IN THE MATTER OF C.C. v. WSH
After C.C.’s attorneys rested, Ms. Frushour called the following witnesses and
entered exhibit 37 into evidence:
Martha Sparks, RN, C ½ Treatment Team member
Allison Bell, RN, C ½ Treatment Team member
Carol Bady, RN, C ½ Treatment Team member
Amy Shillinger, Dentist
Jerry Smith, Behavioral Treatment Team member
Alejandro Rosa, Behavioral Treatment Team member
Suzanne Cook, RN, C ½ Treatment Team member
Mike Poole, Occupational Therapist
Stephanie Heidleberg, M.D., C ½
Mary Claire Smith, M.D., WSH Medical Director
Jack Barber, M.D., WSH Director
III. Findings and Conclusions
The LHRC determined that it was imperative to decide the threshold issue of
whether C.C.’s “limited containment suite” constitutes the use of seclusion by
WSH. Section 12 VAC 35-115-30 defines seclusion as “the involuntary
placement of an individual alone in an area secured by a door that is locked or
held shut by a staff person, by physically blocking the door, or by any other
physical or verbal means, so that the individual cannot leave it. “The LHRC
finds that the treatment provided for C.C. in the “limited contact suite” is, by
this definition, seclusion.
1) On Section 12 VAC 35-115-60-4B.
appropriate changes to an individual’s services plan based on the ongoing
review of the medical, mental and behavioral needs of the individual.
The LHRC finds that WSH violated this section of the regulations. Based
on testimony given by the patient’s sister Clara Ramos that C.C. is only
able to express his feelings in Spanish. This patient would be best served
by Spanish speaking medical/mental health professionals that are trained
to provide care and treatment to the mentally ill. No evidence was
presented that C.C. has ever been offered a copy of his treatment plan in
Spanish nor any material related to medication in Spanish.
Page 4 – OPINION IN THE MATTER OF C.C. v. WSH
2) On Section 12 VAC 35-115-60-4D.
restraint by a qualified professional who is involved in providing services
to the individual.
The LHRC finds that WSH violated this section of the regulations. The
medical record provided by Western State Hospital did not meet this
standard nor did they provide documentation to support a current variance
for review by the LHRC when the original variance expired in October
2007.
3) On Section 12 VAC 35-115-60-2
including medical services and treatment, are at all times delivered in
accordance with sound therapeutic practice.
The LHRC finds that WSH did not violate this section of the regulations.
Western State Hospital provided documentation that demonstrated that the
Patient’s Legally Authorized Representative, Clara Ramos was given
information regarding the extraction of C.C.’s remaining teeth and that
dentures were not thought to be possible at that time.
Upon hearing testimony and being provided documentation from the
Western State Hospital Dentist, Amy Shillinger, the LHRC is of the
opinion that she exceeded expectations for attempting to find a dentist that
would make dentures for this patient.
4) On Section 12 VAC 35-115-110-C.9.
applicable state and federal laws and regulations, certification and
accreditation standards, and third party requirements as they relate to
seclusion and restraint.
The LHRC finds that WSH violated this section of the regulations.
WSH did not provide current documentation for any variances related to
this standard and the medical record does not contain documentation to
meet this standard.
5) On Section 12 VAC 35-115-110-C.15.
orders for the use of seclusion or restraint for behavioral purposes.
The LHRC finds that WSH violated this section of the regulations.
WSH does not have a current variance for documentation of seclusion as
related to this patient.
Page 5 – OPINION IN THE MATTER OF C.C. v. WSH
6) On Section 12 VAC 35-115-110-C.19.
orders for the use of seclusion or restraint for behavioral purposes.
The LHRC finds that WSH violated this section of the regulations.
WSH did not provide documentation for approval of the locked
containment area.
7) On Section 12 VAC 35-115-50
Dignity
The LHRC finds that WSH did not violate this section of the regulations.
On Section 12 VAC 35-115-100
Restriction on freedoms of everyday life
The LHRC finds that WSH did not violate this section of the regulations.
IV. SPECIAL NOTE ON OBJECTIONS MADE DURING THE HEARING
The LHRC took under advisement the objection and request for summary
judgment made by Mr. Veldhuis regarding Jerry Smith’s admission that he
discussed his testimony with another witness together with Ms. Frushour. The
LHRC decided that it would be in C.C.’s best interest to continue with the
hearing and give Mr. Smith’s testimony the consideration due under the
circumstances.
Mr. Gulotta objected when Ms. Frushour called both Mr. Smith and Mr. Rosa
to testify together before the committee. The LHRC sustained this objection.
Mr. Gulotta objected when Ms. Frushour called Mr. Smith to testify after he
had already testified and had been excused. The LHRC sustained this
objection.
Mr. Gulotta objected twice during Ms. Frushour’s closing statement when he
accused her of introducing facts on staff injuries associated with C.C.’s case
not previously presented in evidence during the hearing. The LHRC
overruled these objections in the exercise of its discretion. The LHRC was
cognizant that statements made by both Ms. Frushour and Mr. Gulotta were
not evidence but arguments and would be considered as such.
Page 6 – OPINION IN THE MATTER OF C.C. v. WSH
V. RECOMMENDATIONS
Therefore the WSH LHRC recommendations:
1. That C.C. be transferred to a facility operated by DMHMRSAS
that is closer in proximity to the family so that they may be
involved with his treatment on a weekly basis.
2. That C.C. be treated by a Spanish speaking psychiatrist and/or
psychologist.
3. That Spanish speaking staff be present not only on first shift, but
second and third shift at WSH.
4. That a treatment plan be developed that includes increasing
increments of time out of the locked containment area while at
WSH.
5. That WSH follows all guidelines and laws pertaining to
seclusion.
6. That WSH provide documentation of approval for the use of the
locked containment area.
7. If the family wishes for C.C. to have dentures they may make
such appointment and C. C. will be given a day/over night pass
for the family to take him to the appointment.
Approved by Western State Hospital Local Human Rights Committee
Members: Deborah Harris, Chair, Linda Thumma, Karen Cochran,
& Lyskoski Washington on May 30, 2008.
June 5, 2008 at 11:10 pm
It’s nice they can keep him locked in a room and never explain anything to him in a language he can understand without violating his “dignity.” I’ve a feeling I don’t want to know what depths they have to plumb to “violate that section of the regulations.”
I’m glad something is being done. I don’t know who’s calling the shots over at Western, but FUCK THEM.