From the Portland Tribune, September 18 2008
Law’s intent debated as DHS declines to show data on specific facilities
When Oregon mental health advocates successfully lobbied for a bill last legislative session that would require hospitals to report to state officials how often they forcibly restrained and secluded psychiatric patients, the advocates thought they had won a major victory.
Finally, they said, they would be able to compare hospitals’ use of these controversial practices.
But state Department of Human Services officials have decided not to release the hospital-by-hospital data. And even the chairwoman of the Oregon Senate committee that passed the bill says DHS isn’t complying with the Legislature’s wishes.
In about three weeks, DHS is scheduled to release the restraint and seclusion numbers sent in to the agency by hospitals around the state.
But DHS officials have decided to collect all the hospitals’ restraint and seclusion data and release it as one number covering all hospitals. Mike Morris, who has overseen the bill’s implementation for DHS, says that’s how the agency reads the new law.
“We were trying to be true to the legislative directive in the bill,” he says.
But Ginny Burdick, D-Portland, chairwoman of the Senate Judiciary Committee, which passed the bill onto the full Legislature for approval, said keeping hospital-specific data from the public is definitely not being true to the Legislature’s intent.
“I don’t think anybody ever interpreted this as something the hospitals could hide behind,” Burdick says. “What use is the information to the public if it doesn’t name the hospitals?”
Restraint and seclusion are controversial but occasionally necessary methods for hospital workers to deal with out-of-control patients, most of whom are psychiatric patients.
Restraint can involve physical force such as hospital workers holding a patient down to the ground, or using leather or plastic cuffs that tie a patient to a bed. Seclusion usually refers to putting a patient in an isolated, locked room, often for long periods.
In August 2007, 50-year-old psychiatric patient Glenn Shipman Jr. died at Legacy Emanuel Hospital & Health Center in Northeast Portland while being restrained by health care workers who held him face down against the floor for at least 10 minutes.
After Shipman’s death, local mental health activists called for hospitals to reveal how frequently they restrained and secluded patients. Senate Bill 265 instructs DHS to collect restraint and seclusion data from each hospital and make it publicly available.
Transparency spurs change
National experts on mental health say that in other states where hospital-by-hospital restraint and seclusion data has been released, the numbers of restraints and seclusions dropped. Hospitals, they say, become more conscious of the public and state officials comparing their rates, and that awareness changes hospital policy.
But even after the Senate bill was passed, hospitals continued to lobby DHS to keep their individual restraint and seclusion numbers private, according to DHS’s Morris.
DHS officials, Morris says, did what state agencies are supposed to do before implementing new laws – they formed a committee to write the administrative rules that would guide implementation. While some mental health advocates were on the committee, it was dominated by officials from hospitals around the state. The will of that committee was clear, Morris says.
“The hospitals were adamant they wanted it to be aggregate as opposed to identifying specific hospitals,” Morris says.
The hospitals, Morris says, were concerned that the public might misinterpret the data showing how many seclusions and restraints were done at each hospital – possibly not realizing that small hospitals could appear dangerous if just one or two incidents were reported.
Bob Joondeph, executive director of Disability Rights Oregon, helped write the bill, according to Burdick. And Joondeph says the language in the bill, which says “aggregate data” would be made public, meant that individual cases would not be released. The idea, Joondeph says, was that each hospital’s data would be released in aggregate – not one number covering all the hospitals.
Data can be powerful tool
Beckie Child, president of Mental Health America of Oregon, says DHS’s unwillingness to provide hospital-by-hospital data reflects an attitude that mental health patients are second-class consumers.
“Tell me any other procedure that has the consequence of such potential abuse, that there’s not a stronger reporting mechanism than what we have,” Child says. “If they’re releasing information about heart procedures and other medical procedures, they can release information about restraint and seclusion.”
Knowing how much each hospital is using restraint and seclusion provides advocates an important tool as they serve as watchdogs of hospitals, Child says.
“If we can look at data and see there’s a hospital doing poorly, we can put pressure on administrators at that hospital, or elsewhere, to take a look at what’s going on,” Child says.
Told of Morris’ comment that DHS was trying to follow the Legislature’s wishes, Burdick said, “That’s disingenuous. It’s very clear the legislative intent was to protect the identity of the patients.”
Jason Renaud, a longtime Portland mental health activist, said that DHS’s decision was all about politics in a state where the hospital lobby is one of the strongest.
“Our voices certainly weren’t heard or respected in the committee process,” Renaud said. “That’s what lobbying is all about.”
When told of the comments by Renaud, Burdick and Joondeph, Patty Wentz, a spokeswoman for DHS, said DHS is open to reconsidering its policies.
“If the rules aren’t right and they do not meet legislative intent, we’ll change them,” Wentz said.