Oregon Law Review : Vol. 89, No. 1, p. 133-174 : Lawyers Who Break the Law: What Congress Can Do to Prevent Mental Health Patient Advocates from Violating Federal Legislation
The Protection and Advocacy for Individuals with Mental Illness Act of 1986 created a federally funded, national system of patient advocacy that gave lawyers, known as “patient advocates,” the authority to investigate patient allegations of neglect, abuse, and civil rights violations. PAIMI was also designed to protect individuals with mental illness who live and receive treatment outside inpatient treatment facilities. It is a wide-reaching Act that has protected countless individuals who are unable to defend themselves due to their circumstances or who might otherwise have died or suffered abuse in secret. Patient advocates have a demanding job. In 2008, patient advocates investigated nearly 19,000 allegations of abuse, neglect, or rights violations on behalf of their clients.6 In 2009, Congress allotted $35.8 million to patient advocacy groups to carry out these investigations. It is projected that Congress will review PAIMI next year. Despite the additional funding and PAIMI’s simple mandate, several problems exist with the patient advocacy system. In the past decade alone, the Department of Justice investigated and uncovered numerous incidents of widespread neglect and abuse in hospitals and institutions throughout the United States. What was said during congressional hearings twenty-five years ago—that “[p]rotection for these frailest of our society exists largely on paper”10—is unfortunately still true today, despite PAIMI’s enactment. The federal investigations raise concerns about why PAIMI’s patient advocacy system has been unable to stop the abuse, neglect, and civil rights violations it was created to prevent. One reason is that patient advocates have taken on additional and legally impermissible responsibilities that Congress never envisioned or authorized. These activities have taken them away from their core mission. The purpose of this Article is to examine these prohibited activities and suggest changes to PAIMI that Congress should consider when it revises and reenacts the Act next year. This Article begins by examining the genesis of modern-day patient advocacy and the conflicting legal theories that underlie the field of mental health law. It then explores relevant provisions of PAIMI and its legislative intent. Finally, this Article examines the legally impermissible activities in which patient advocates have engaged, the problems these activities present, and potential solutions to these problems. In the end, the author hopes that patient advocates will be held accountable to PAIMI, which governs their role as advocates and protectors of individuals with mental illness.