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
Date
2010
Authors
Journal Title
Journal ISSN
Volume Title
Publisher
University of Oregon Law School
Abstract
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.
Description
42 p.
Keywords
Patient advocacy -- Law and legislation, Mental health laws, People with mental disabilities
Citation
89 Or. L. Rev. 133 (2010)