- Report Published -
|The Need for Additional Authority for Criminal Prosecution of Suspected Abuse in Facilities for the Mentally Disabled|
|Department of Mental Health; Mental Retardation and Substance Abuse Services|
|SJR 52 (Regular Session, 1988)|
|Senate Joint Resolution No. 52 requests that the Department of Mental Health, Mental Retardation and Substance Abuse Services (DMHMRSAS) study, in conjunction with other appropriate state Agencies and Associations, the need for additional authority to facilitate the criminal prosecution of those individuals accused of the abuse of patients or residents in facilities for the mentally ill and mentally retarded. A Work Group composed of representatives from seven agencies and associations met to consider the issues and a1ternatives. The Work Group also held open meetings in five locations around the state to solicit comments from consumers, professionals and families of the mentally disabled.|
The Work Group finds that:
• The clients' vulnerability arises not from the severity of the handicapping condition, but from the clients' dependence on the caretakers who may also be the abusers.
• DMHMRSAS employers must take seriously their duty to report abuse and that reporting must be encouraged.
• The current definition of abuse used by DMHMRSAS is so broad that it may serve as a deterrent to reporting and thus to an effective system of protection.
• The role of the DMHMRSAS Advocates in monitoring the administrative implementation of a program to prevent and/or respond to abuse should be expanded and reinforced.
• Staff must be well trained and must substantially agree that the sanctions for abuse are reasonable given the act committed.
• Staff are discouraged from reporting if personnel actions are not upheld in the appeal process.
• Despite the statutory reference to "written policy" as a basis for upholding termination, a number of circuit courts appear to be unwilling to uphold terminations based solely on the Departmental Instruction.
• The alleged lack of competency of some patients or residents to testify and subject themselves to cross examination, limits the practicality and value of additional criminal legislation.
• The current criminal statutes provide the necessary degree of punishment for those convicted of physically abusing clients.
Acting on the Work Group's recommendations, DMHMRSAS will:
• Adopt a modified definition of abuse.
• Revise the related Departmental Instructions.
• Recommend inclusion of the definition of abuse in the Regulations promulgated under 37 .1-84.1 of the Code.
• Update the Interdepartmental Agreement with the Department of Social Services.
• Recommend the addition of specific reference to the right to be free from abuse to 37.1-84.1 of the Code.
• Recommend that no additional Code authority be established for the criminal prosecution of abuse.