More than 250 mental patients at Western State Hospital have been held improperly for several years without legally required court hearings -- a fact that hospital officials and the Virginia attorney general's office knew three years ago but took no action to correct.
The patients, all of whom had been involuntarily committed to the state-operated facility here, had their legal status altered to "administrative voluntary" after major changes in state law in 1974 made it more difficult to confine patients against their will. But officials ignored a requirement in the law that patients whose status was switched must "make application for treatment on a voluntary basis."
Hospitals records show that at least 254 such patients -- nearly one-quarter of the hospital's population -- never signed papers agreeing to remain voluntarily at the hospital and staff members say many were never told that their legal status had been changed. Instead, officials simple stamped "revert to voluntary status" on the records of those patients, who remained at Western State under a legal status that C. William Brett, the deputy commissioner in charge of state mental hospitals, now acknowledge was "inapporpriate if not illegal."
For some of the patients, those too old or too disabled to leave the hospital, officials may have committed only a technical violation. But for many others, hospital staff members say, the violation denied patients the right to decide for themselves whether to remain at the institution or move to less restrictive environments closer to home.
"For the most part, these are elderly people with no resources who are in bad shape physically," said Brendan Buschi, Western State's social work director. "Many of them should be in nursing homes instead of being held here under a status that doesn't even exist."
Had they been classified as "voluntary," these patients would have received a court hearing every six months to determine whether they still should be confined at Western State. Because they were listed as voluntary, the patients were denied those hearings.
Most of the 254 -- some of whom have been confined at the hospital for as long as 50 years -- are still at the hospital, living behind the locked doors of geriatric wards where most pass their days watching television or wandering aimlessly through the corridors with little or no supervision. Staff members say that because these patients are among the hospital's oldest and most chronically ill, many receive no psychiatric treatment beyond the tranquilizers that are dispensed daily.
The "administrative voluntary" issue was brought to the attention of Gloria DeCuir, then the hospital's social services director, and Assistant Attorney General Paul Sinclair in 1978 by a social worker in a geriatric ward. The social worker, Donald Vessey, said he was told by Decuir, now the state's official patient-rights advocate, to drop the subject, which he did. DeCuir said she does not recall the conversation.
Last month, after the American Civil Liberties Union threatened to file a lawsuit, state mental health officials ordered that patients on administrative voluntary status either sign voluntary admission papers or be recommitted to the hospital by a local court. Presided over by a local court-appointed lawyer designated as a "special justice," the court has held a series of quick hearings, many lasting about 15 minutes. To date, 47 patients have been given these hearings, and all have been recommitted.
The perfunctory sessions, according to critics, have merely compounded the legal wrong done the patients.
"Somebody who's been confined in the hospital for 20 years or more deserves more than 15-minute hearing," said Virginia ACLU director Chan Kendrick. "This is a fundamental issue affecting a group of people who have no power to fight for themselves and that's why they're ignored.
Triggered by sweeping federal court decisions, the 1974 reforms in Virginia's commitment laws were designed to bring legal rights and proper psychiatric treatment to patients in the darkest and most obsure corners of the state's mental health system. Under the new law, a person could be committed to a state hospital only if proved to be "an imminent danger" to himself or others or too sick to care for himself, and also only if it were shown that no less restrictive alternative was available.
To make sure those conditions were honored, the law also gave the person the right to a legal hearing before a judge, with an independent physician to advise the court and, if needed, a free lawyer. And it stipulated that commitments could last only six months, after which the person was entitled to another hearing or release.
"We wanted to ensure that people weren't just locked up for being eccentric with the key thrown away," said Arlington Del. Mary A. Marshall, one of the new law's authors.
While some of the reforms have had a major impact on the hospital, others -- such as the required commitment hearings -- have been largely an empty exercise. And for the administrative voluntaries, the reforms were simply ignored. What follows is the story of how laws that looked good on paper often prove meaningless in the real world of Western State Hospital. Reclassification
When the new law took effect in September 1974, about 75 percent of the state's 12,000 mental patients were being confined against their will. By the end of the year, more than two-thirds had been reclassified as voluntary patients. But at Western State, some of the patients or their legal guardians never signed papers showing they had been informed of the change.
In a 1974 memo, then hospital director Hobart G. Hansen suggested that voluntary admission forms be rubber-stamped "revert to voluntary status" by hospital staff members. "Wherever possible, the patient should sign this form and someone should witness his signature," Hansen wrote. "This is not necessary, however."
Hansen, who now heads a local mental health clinic in Harrisonburg, Va., said in a recent interview that he could not recall the memo but said he believed he had authorization from departmental superiors for his interpretation. But officials in Richmond say that they can find no written authorization, and they say no other state hospital used a similar procedure.
In any case, the rubber stamp was used on the records of more than 250 patients. While some of the patients later died or were released, 254 of the geriatric center's 401 patients remained "on this voluntary status but had not signed their own voluntary papers," according to a report last year by Philip Denton, the center's director.
Some hospital officials, including current acting director William Burns, say the procedure was used because "it's more humanitarian [and] less restrictive" to hold patients on voluntary status. Others say there were more practical reasons. "Apparently it evolved as a way to save money because recommitting patients every six months is expensive," said Glenn Yank, the hospital's medical director.
Vessey, a social work supervisor in the geriatric center, says he alerted Sinclair, an assistant attorney general responsible for mental health issues, to the administrative voluntary procedure three years ago and followed up with a letter dated Nov. 21, 1978. He says Sinclair never gave a written reply but called him a week later to confirm that the procedure was "not in accord with the intent of the law."
Sinclair says he recalls that the issue was "informally addressed" to him but cannot remember what position he took. He says he took no other action because he was asked only for "an informal opinion."
Vessey says that after writing the letter he was called into DeCuir's office. He says DeCuir told him "if you pursue it, you'll be in trouble" with other hospital officials. Vessey says, "She sufficiently scared me so I didn't pursue it."
DeCuir says she cannot remember the conversation but does recall criticizing Vessey for being "antagonistic to Paul." She adds, "It was my understanding from Paul that he did not feel it [administrative voluntary] was illegal." After that, she says, the subject was dropped. Her reasoning: "In a facility like Western State and a bureaucracy like we're in, you have to set priorities on what you're going to work on."
Last year, after Denton's report, the hospital began reviewing some of the administrative voluntary cases. But the process was halted after fewer than 10 percent of the cases were reviewed because, according to some staff members, it was too time-consuming. It began again last month, after a Washington Post reporter questioned officials about the issue and after the ACLU threatened legal action.
State officials say the fact that the patients are now being granted court hearings is not an admission that the past procedure was illegal. "To be perfectly honest with you, I don't know if it's legal or not," said Brett. "I felt it was inappropriate.
It's illegal and they knew it's illegal," contended the ACLU's Kendrick. "They're moving in the right direction now simply because of the media and because of pressure from outside organizations."
Whatever the motivation, patients who for seven years were held without court hearings are now getting them. The only catch is that even the judge who presides over the recommitment hearings contends that while legally necessary, most are a waste of time. 15-Minute Hearings
The judge, the lawyer and the doctor, all dressed in overcoats, hover over 90-year-old Charles, who snores peacefully in his wheelchair in the lobby of the hospital ward, unaware that he is the subject of a brief legal hearing that will recommit him to Western State for the next six months.
The Supreme Court has called involuntary a "massive curtailment of liberty" and state law requires that a person must be informed of his legal rights and be allowed to hear the evidence in hearings such as the one Charles is undergoing. But though a hospital aide tugs at his arm and shouts in his ear, Charles cannot be jarred from his afternoon nap. Special Justice J. Forester Taylor, Dr. Alex Mizzi, a general practitioner, and attorney Charles Kelly decide to hold the hearing anyway.
Ten minutes later, after the men take turns turns filling out the four-page yellow commitment form, it is over. They pile back into Taylor's car, having concluded their afternoon's work -- three hearings, none of which took more than 20 minutes, recommitting three patients.
The three men say they handle more than 500 such cases a year, for which the state pays each of them $50 per case for the combined preliminary and regular hearing. Among the cases are newly detained patients, who under law must each be granted a full legal hearing within 48 hours of detention. Taylor estimates that he orders about 75 percent of them committed, most for the full six months.
When it comes to patients up for recommitment, Taylor says, almost all are recertified for the full period.
"I won't say it's a complete waste of time, but it is a little unnecessary because for the great majority it's pretty obvious they need to stay here," Taylor said. "Of course, it [the hearing process] does entail a good bit of expense for the state."
Critics contend that the hearings are costly in other ways as well. In a suit pending in Richmond's federal district court, Legal Air lawyers have charged all of Virginia's special justices with "substantial deprivation" of patients' constitutional rights. They contend that the hearings are perfunctory and held without adequate legal notice, that defense lawyers seldom confer with their clients beforehand and that rules of evidence are seldom followed. The net result, they say, is that the hearings have rendered useless the legal protections built into state law.
"A lot of people may be held for many years based on a very dubious hearing," said Legal Aid lawyer Eugene Murphy. "Practically speaking, the 180-day limit, which is designed to protect people from endless hospitalization, is meaningless. Once you're committed, you're committed for as long as they want to keep you."
Some patient advocates say the fault lies with lawyers, such as Kelly, who they say don't spend the time to prepare a case properly for their clients. "It's a fairly typical pattern but one that certainly at least skirts ethical requirements, and I would argue it violates the American Bar Association's standard of full representation," said John Parry, director of the ABA's Commission on the Mentally Disabled.
But others say the sheer numbers of patients and lack of mental health facilities outside the hospitals make the perfunctory hearings inevitable. Kelly himself says he believes that in many if not most cases there is simply no other safe place for the patients to go. 'Empty Formality'
The state law on commitment hearings is designed to ensure patients an unbiased hearing from officials independent of the hospital and the mental health system. But Taylor, Mizzi and Kelly acknowledge that they rely almost totally on the advice and direction of the hospital's staff in deciding a patient's fate.
The same holds true throughout most of the country, according to Samuel Jan Brakel, a research attorney who studied the subject for the American Bar Foundation in Chicago. "Many judges and attorneys see their role as not to second-guess doctors too much if at all," said Brakel. He added that the hearings often become "an empty formality."
Some at Western State argue that the net effect has been harmful. In a letter last year to then hospital director Coen Plasburg, Nancy Ehrenreich, supervising attorney for Western State's Legal Aid Society, accused Taylor, Mizzi and Kelly of demonstrating "devastating, though probably unintentional insensitivity to the feelings and fears of patients," as well as often ignoring legal issues such as other alternatives to involuntary hospitalization.
Ehrenreich also faulted the hospital for not providing a staff member to testify or witness most of the hearings. Her conclusion: "The current means of conducting commitment hearings . . . are so detrimental to the health and rights of patients at the hospital that it is imperative that they be substantially altered as soon as possible."
Not much has changed since that time, hospital staff members say. A recent series of hearings held over a two-day period substantiated their claims. Few of the patients seen during that time knew in advance they were about to have a court hearing. And some still did not realize what had happened when the hearing was over.
In only one case did lawyer Kelly confer with a client outside the hearing room. No witnesses were summoned except the patients themselves, and no evidence was entered beyond the medical records supplied by the hospital. Yet in all 10 cases, the judge ordered the patient committed and in all but one case, the commitment was for the full 180 days.
There was 71-year-old Pearl, a Lynchburg widow whose condition was diagnosed as paranoid schizophrenia. Institutionalized on and off for the last 27 years, she insists she is ready to leave the hospital.
A slim, fragile-looing woman dressed in a housecoat and slippers, Pearl angrily confronted Taylor, Mizzi and Kelly in the hallway of her geriatric ward, telling them she was unaware of the hearing that afternoon and ordering them to return an hour later, "after my bath."
But a hospital aide enticed Pearl into the ward's television room with a promise of a cigarette. A dozen women in bathrobes, watching soap operas on a color television, were ordered out and, with the TV still on, the trio dispensed with Pearl's hearing in 20 minutes. She was recommitted even though she kept telling the judge that she wanted to live with her daughter in Roanoke and there was no staff member present to testify on whether that was possible.
Ruby, 62, also from Lynchburg, who has been in Western State since 1955, also was recommitted for six months, although she told Taylor: "I'm ready to leave. I get worse every day I live. I'd go home and cook me some beans."
Taylor gave Ruby a chance to confer with Kelly. He told her that Kelly is her lawyer, but she said she didn't know what she would say to him. They did not confer. Ruby's hearing was over in 10 minutes.
The hearing for Jim, a 55-year-old black man from Arlington wearing a bright red cardigan and sneakers, took only seven minutes. Jim, who was found six months ago wandering naked through an exclusive McLean neighborhood, shook his head and mumbled incoherently throughout the session.
The hearing for Eva, a Staunton resident in her 70s who was picked up on a detention order after a fight with a neighbor, took nearly 20 minutes. "He doesn't know anything about me," she snarled, when Taylor asked if she wanted to talk to Kelly.
"You're just confusing me," she complained at another point, then bolted for the door, where she was stopped by Mizzi. "Please leave me alone." But Eva, who had been released from the hospital a year before, was ordered to spend six more months at Western State.