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EQUIP FOR EQUALITY, INC. v. INGALLS MEMORIAL HOSPITAL

August 5, 2004.

EQUIP FOR EQUALITY, INC., Plaintiff,
v.
INGALLS MEMORIAL HOSPITAL, Defendant.



The opinion of the court was delivered by: MORTON DENLOW, Magistrate Judge

MEMORANDUM OPINION AND ORDER

The parties are before this Court on a continuation of this Court's summary judgment decision in order to design a protocol to govern the access to which this Court found the plaintiff is entitled. Plaintiff Equip for Equality, Inc., ("EFE" or "Plaintiff") is the governor-designated, federally-funded Protection and Advocacy System for persons with mental illnesses in Illinois, and is entitled to reasonable unaccompanied access to facilities, patients, and programs within mental health facilities. This Court already has ruled that Defendant Ingalls Memorial Hospital ("Ingalls" or "Defendant") is among those mental health facilities to which EFE is entitled to reasonable unaccompanied access. The primary issue now before the Court is what constitutes "reasonable unaccompanied access." However, the Court also will adopt and impose upon the parties a protocol governing EFE's access to Ingalls for the purposes of monitoring and educating patients and staff at Ingalls, which will incorporate aspects of two competing protocols that the parties have proposed. I. BACKGROUND

This Court's opinion in Equip for Equality, Inc. v. Ingalls Memorial Hospital, 292 F. Supp. 2d 1086 (N.D. Ill. 2003), recites in great detail the background of this case. Therefore, what follows are the facts and principles materially pertinent to a decision on the issues now before the Court.

  EFE demands access to the two inpatient units at Ingalls, which are locked at all times and located on the second floor of the hospital because of the unstable and potentially dangerous nature of the patients housed in those units. These patients receive intensive, highly structured therapy for a duration of twenty-four hours a day for five to ten days at a time. This type of therapy requires a safe, therapeutic environment, with a minimum amount of visitors. Access to these patients is strictly monitored and regulated. Any disruption to a patient's routine and environment could be detrimental to the patient's well-being.

  Although both parties have the well-being of the patients in mind, this case arose when the parties were at extreme polar opposites: EFE demanded broad access to the inpatient facilities, residents, and employees at Ingalls, while Ingalls responded with an absolute denial of access. Upon the Plaintiff's motion for summary judgment, this Court held: (1) as a matter of law, Ingalls's complete refusal to allow EFE direct physical access to its inpatient units is in violation of both the United States Protection and Advocacy for Individuals with Mental Illness Act, 42 U.S.C. § 10801, et seq., and the Illinois Protection and Advocacy for Mentally Ill Persons Act, 405 ILCS 45/1, et seq.; (2) as a matter of law, EFE is entitled to reasonable unaccompanied access to the inpatient units and the outpatient units at Ingalls, as well as to the patients and the programs therein, during, at a minimum, normal working hours and visiting hours; and (3) EFE is not entitled to judgment as a matter of law on the issue of whether it is entitled to unaccompanied and unannounced twenty-four hour access to the inpatient units and the outpatient units at Ingalls, as well as to the patients and the programs therein, absent a complaint or probable cause.

  The Court's decision was the result of an extensive study of the codes, acts, and regulations that govern the Protection and Advocacy ("P&A) System in Illinois. In Illinois, a P&A system has three primary functions: to investigate, to educate, and to monitor. The scope of EFE's right to access facilities, residents, and employees is different under each one of these circumstances, with the scope being broadest while a P&A system performs its investigatory function, which is not at issue in this case. Likewise, there is a distinction between the right of access for monitoring purposes versus the right of access for educational purposes. When a P&A system is exercising its monitoring function, it is reasonable for it to be more intrusive and invasive than when it is exercising its educational function.

  There also exists a distinction between the right of access to facilities versus the right of access to patients. Thus, EFE is allowed unannounced and unaccompanied access to the inpatient units at Ingalls only where such visits will not substantially interfere with the treatment of the patients, who are extremely unstable, sometimes volatile, sensitive to the slightest change in their environments, and subject to intensive, highly structured, continuous care for days at a time. EFE ordinarily is not entitled to unannounced and unaccompanied twenty-four hour access to the inpatients at Ingalls, unless such access becomes necessary to accomplish its functions of monitoring or educating.

  After outlining these legislatively created guidelines, the Court ordered the parties to meet and to develop a protocol within thirty-five days, consistent with this Court's decision. Eight months later, the parties have made substantial progress and have reached agreement on most issues, but not all. A controversy still exists as to the extent of access to which EFE is entitled. As a result, the parties have submitted to the Court two separate protocols, from which the Court has crafted a single protocol that is binding upon the parties.

  II. JURISDICTION

  This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 because this action arises under the federal United States Protection and Advocacy for Individuals with Mental Illness Act.

  III. DISCUSSION

  Each party has submitted its own proposed protocol for consideration by this Court. Consequently, there are several disagreements remaining between the parties. Those disagreements include the following:

  1. The greatest point of contention is whether EFE is entitled to unaccompanied and unannounced interviews with patients or whether Ingalls is entitled to a twenty-four hour evaluation period of a patient prior to EFE meeting with that patient. Related is whether EFE should commit to some specific hours of access, as opposed to retaining discretion to conduct twenty-four hour access as it deems necessary;

  2. Whether EFE should refrain from entering Ingalls's nursing stations;

  3. Whether EFE should specially agree to refrain from photographing patients absent the patient's consent or EFE's probable cause to suspect abuse or neglect, rather than leaving the protocol silent on photography of patients;

  4. Whether EFE should acknowledge its assumption of the risk inherent in entering Ingalls's locked inpatient psychiatric units, as well as its own duty of care during access; and

  5. Whether the access protocol should be a matter of public record or should remain confidential.

  Oral argument on these issues was held on July 19, 2004. The Court now will address each issue in turn.

  A. ACCESS TO PATIENTS

  EFE proposes that its staff may speak with patients and patients may engage in conversation with EFE staff who may be in the process of monitoring the facility or educating the staff and patients. Furthermore, if it is necessary to meet subsequently with a patient as a result of a conversation, then EFE will work with the unit staff at Ingalls to arrange the meeting. EFE's concern is that if a patient expresses a dire and immediate need to talk to an EFE representative, that representative should be able to speak with that patient as soon as possible and should not have to walk away and risk alienating that patient. Both parties expect and accept the fact that there will be naturally occurring interaction between EFE representatives and patients, but EFE demands the leeway to have detailed, meaningful conversations with patients despite the absence of probable cause, which otherwise would trigger EFE's broad investigatory authority. For example, without triggering probable cause, a patient could say to an EFE representative: "I need to talk to you right away because I am having problems with the staff." In such an instance, EFE claims the need to discover, for example, whether the problem is that the staff is not giving the patient bubble gum or that the staff is giving the patient beatings. Additionally, EFE claims that immediate attention to patients is necessary because patients tend to change their minds and to shy away from talking, either because they no longer feel comfortable speaking to EFE representatives or they feel intimidated by Ingalls staff.

  The specific language that EFE proposes is as follows:
In the event that a patient requests to immediately meet privately with EFE staff during a monitoring visit, EFE will work with unit staff to ensure that such a meeting can take place without adversely affecting the patient's treatment or resulting in any immediate danger to the patient or EFE or Ingalls staff.
EFE employs substantially ...

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