Fashionable Londoners paid a penny apiece during medieval times to visit the horrific Bethlem Royal Hospital (“Bedlam”), where they gawked and laughed at the mentally ill and retarded unfortunates imprisoned there. We’ve come far since the time when such cruel “entertainment” was in vogue, but the pendulum may have swung too far in the other direction. Now we just assume that the government takes good care of our mentally disabled fellow citizens.
Two suspicious deaths in Virginia challenge that assumption. The legal issue is whether one state agency can sue another in federal court for withholding records. The moral issue is whether we as a society have abdicated our obligation to make sure that government agencies treat these exceedingly vulnerable individuals with care and compassion. Without transparency, there’s no way to know.
In order to qualify for federal funds for the disabled, the Virginia General Assembly created the Office for Protection and Advocacy in 2002 as an independent state watchdog agency with the authority to investigate allegations of abuse and/or neglect of the disabled.
In 2006, VOPA opened an investigation of the deaths of two mentally retarded individuals in state-operated institutions. Unfortunately, the state Department of Behavioral Health and Developmental Services, which runs the two facilities, refused to cooperate.
In the first case, a mentally retarded resident of Central Virginia Training Center in Lynchburg died eight days after two latex gloves were surgically removed from his intestines.
VOPA asked for all records pertaining to the death, including a customary analysis and review. But BHDS said no.
When VOPA made the same request in the case of a mentally ill patient who, after being placed in restraints for 33 hours, died shortly after attendants tried to restore the restraints at Central State Hospital in Petersburg. That request was denied, too.
In a third case, CVTC staff members saw a mentally retarded patient running out of his room, where they found “multiple pieces of human ear tissue and a large amount of blood on the floor.” But BHDS again refused to release a copy of its internal review.
“We went as far as we could get, but we were not able to complete our investigations,” VOPA executive director Colleen Miller told The Washington Examiner. “We were created by the legislative branch to investigate allegations of abuse and neglect, but the state executive branch is preventing us from doing our job. Disabled citizens in state custody are at risk because there is very limited oversight of these incidents.”
Since VOPA operates under eight different federal programs, it decided to sue. A federal judge ruled in VOPA’s favor, but the commonwealth appealed. The Fourth Circuit Court of Appeals in Richmond threw out the lawsuit, ruling that under the doctrine of sovereign immunity, one state agency cannot sue another state agency in federal court — even in an attempt to enforce federal law.
The ruling was in direct conflict with Indiana’s Seventh Circuit Court of Appeals, which found that states receiving federal funds cannot shield their state-run hospitals from congressionally created oversight of those funds. The U.S. Supreme Court agreed to take the case, and oral arguments were heard Dec. 1. A final ruling is expected in a few months.
“The 11th Amendment’s sovereign immunity is one of the most complicated legal analysis the Supreme Court does,” Miller explained. “I’m not making any predictions.”
Regardless of what the high court decides, however, nothing is stopping members of the General Assembly from demanding a much higher level of transparency and accountability from all tax-supported institutions responsible for the care of the mentally disabled.
Barbara F. Hollingsworth is The Examiner’s local opinion editor.
