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Patients getting stuck in state psychiatric hospitals because of coronavirus obstacles | COMMENTARY

The closure of courts in Maryland because of COVID-19 means patients can't go before judges to get released from psychiatric hospitals even if they are eligible, according to a disability attorney.
The closure of courts in Maryland because of COVID-19 means patients can't go before judges to get released from psychiatric hospitals even if they are eligible, according to a disability attorney.(Getty Images)

Maryland’s response to curb the spread of COVID-19 has been admirable. Gov. Larry Hogan has courageously ordered the closure of schools, child care programs and nonessential businesses. The Court of Appeals has ordered the closure of Maryland courts, permitting only designated emergency proceedings to continue and for those proceedings to be conducted remotely when possible.

However, the closure of the courts complicates the plight of some people with mental illness, because the majority of patients in state psychiatric hospitals require court action in order to be discharged. Without access to the courts, patients eligible for discharge remain stuck at these facilities, which, as congregate settings, present favorable conditions for rapid spread of the virus.

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The virus has already begun to spread throughout state psychiatric hospitals. On some units, so many individuals have become sick that the hospital has halted further testing, assuming everyone sick has COVID-19, according to one of our clients and a family member of a patient at one of the hospitals. Hospital space is limited and, therefore, once a patient tests positive, rather than completely isolating the patient from all other patients, facilities quarantine all patients on the unit. Consequently, patients’ treatment is not only compromised due to limitations of services during the pandemic, but the placement puts many at risk of substantial harm.

Every effort should be made to discharge patients so they are safe and so remaining residents may be housed more safely. Releasing patients from state facilities requires coordination of several moving parts. State facilities must first evaluate patients to determine whether they are eligible for discharge. Once a patient is deemed ready for discharge, under most circumstances, courts must review and approve the release and or any conditions associated with the release. State facilities are also required to create aftercare plans — some of which require court approval, which often depend on continued care in the community.

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Discharge from state hospitals and residential centers becomes virtually impossible when facilities stop evaluating patients, courts no longer conduct proceedings necessary to effectuate discharge, and community providers stop accepting patients. This is the dilemma many patients at state hospitals currently face. These problems are urgent and need to be addressed to protect patients from the inevitable spread of the virus.

Rather than limiting evaluations of patients during the pandemic, state facilities should review the mental status of all patients in order to identify those who are eligible for discharge. As the first step toward discharge, such evaluations are medically necessary. Certain patients committed to state hospitals who face low-level and non-violent criminal charges, including trespass, disorderly conduct, drug possession and certain traffic offenses, should be presumed not dangerous and ready for release. Any follow-up evaluations can be conducted on an outpatient basis.

Patients must also have access to courts to proceed with hearings required for their discharge. Some courts have stopped conducting competency status hearings, which forces patients, who are now competent and not dangerous, and thus ready for discharge, to remain in the hospital. Instead, courts should opt to conduct such proceedings remotely or remain flexible in conducting hearings for those patients state facilities deem eligible for release. Competency status hearings, like bail review hearings, allow patients the opportunity to demonstrate to the court that they are ready for release.

Community providers should be more willing to accept patients from state facilities during the pandemic, but until they are, state facilities must explore other options. The law provides for the temporary release of patients, which allows patients to be temporarily released to family members willing to accept them until they are able to safely transition to their community program. Families should be informed of this opportunity and supported to design safe home-care plans. It is important to remember that patients are committed to state facilities for treatment — not punishment, and they should not be forgotten.

Discharging patients from state hospitals is essential to protect them from the spread of the virus. Although releasing patients requires coordination and cooperation from different agencies and branches of government, it is exactly what is required by emergency management in the face of a pandemic.

Emily Datnoff (EmilyD@DisabilityRightsMD.org) is an attorney with Disability Rights Maryland.

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