Patient Prosecution: Protection or Persecution?

To the Editor: The New Freedom Commission report, on which both of us consulted, condemns criminalization of people with mental illness (1). However, despite both the report and new HIPAA (Health Insurance Portability and Accountability Act) penalties for violating confidentiality, hospital staff members are increasingly filing criminal complaints against patients for assault.

The targets of these prosecutions may be patients with a diagnosis of a personality disorder, many of whom are disliked by staff members before any assault occurs. Sometimes the "assaults" result from poorly executed restraints. Shockingly, a nurse who brought a criminal complaint in Massachusetts (against a female patient whom one of us treated and the other represented) granted interviews with the press in violation of confidentiality, while the nurses' association Web site published court dates, encouraging nurses to show up to influence the proceedings.

Such scenarios hardly encourage patients who are losing control to seek help or to view hospitals as safe settings with genuinely caring staff. The argument that prosecuting patients teaches them to accept normal responsibility for their actions ignores the fact that hospitals are not normal community settings in which responsibilities and rights are balanced. The fact that an individual is in the hospital reflects a judgment that the person has a mental condition of sufficient severity to require institutional care to ensure safety. The hospital assumes a responsibility to protect the patient and treat—not punish—the symptoms. In fact, the patient's acknowledgment of a risk of violence may be the reason for admission, which may create an untenable situation in which displaying symptoms of the illness for which one is being treated results in one's prosecution.

Prosecution of patients is often a signal that staff members feel unsafe, untrained, or unsupported by hospital administrators. However, prosecution may promote an adversarial mentality that increases rather than decreases the risk of assault. Sometimes prosecution reflects a lack of clinical leadership in providing help to staff who experience frustration with challenging patients. Some prosecuted patients are sexually abused females who became panic-stricken during restraint procedures in which men were involved. For these women to be dragged into court, often when their own abusers escaped unpunished, does untold damage.

This is not to say that prosecution of patients for crimes committed in mental health settings is never justified, nor that staff should remain unprotected. The point is that prosecutions by staff signal a staff in trouble, and administrators should get at the root of the problem, which includes working to eliminate restraints, training sufficient staff in trauma-sensitive approaches to deescalation, and providing clinical supervision and active treatment. Most important, it must be recognized that prosecution should be a last resort and should occur only in the presence of careful due process that emphasizes the protection of the human rights of all parties. Institutions that criminally prosecute patients should be prepared to use similar due process to determine whether to prosecute staff who abuse patients.

We strongly recommend that states develop patient protection procedures to evaluate any proposed prosecution of institutionalized individuals to ensure that vulnerable patients are not subjected to the further trauma of being iatrogenically criminalized by virtue of having sought treatment.