The commission ruled on Aug. 24 that the Department of Mental Health, the Department of Corrections, and their umbrella Agency of Human Services, all discriminated against the woman.
Disability rights advocates say this is the latest case in an ongoing, well-documented problem in which Vermonters in psychiatric crisis wait days in emergency rooms or other inappropriate settings before they receive inpatient psychiatric care.
The case says the woman, identified only by the initials WM, has a psychiatric disability. In January 2016, she stopped taking her medication for bipolar disorder and experienced an episode of “extreme mania” that led to a confrontation with police, the case says.
Police took WM into custody and she was found to be “a person in need of treatment,” a term that refers to an inmate who has limited self-control, judgment, or discretion as a result of a mental health disorder, according to the case.
A court ordered WM placed in the custody of the Department of Mental Health, and that she be held at the Vermont Psychiatric Care Hospital in Berlin or a similar facility while professionals evaluate her competency and sanity with regard to the corrections process.
Instead, the case says WM was sent to Chittenden Regional Correctional Facility, a women’s jail in the Burlington area. When she arrived, the Department of Corrections placed her in solitary confinement in the so-called Alpha Unit, and her mental condition began rapidly deteriorating.
WM received placement in a Level 1 bed—beds that the state funds in Berlin, Rutland, and Brattleboro that are designed for people in psychiatric crisis who may be suicidal or homicidal—about one week later, according to the case.
While her mental state improved when she started receiving psychiatric care, the commission ruled that she was discriminated against when she was placed in the correctional facility, and discriminated against based on the treatment she received at the facility.
Al Gobeille, the secretary of the Agency of Human Services, did not respond to a voicemail or email seeking comment on Friday. Lisa Menard, the commissioner of the Department of Corrections, did not respond to an email inquiry. Melissa Bailey, the commissioner of the Department of Mental Health, was out of the office Friday.
“The State offered no legal defense on behalf of any of the respondents,” the case said. “It simply denied W.M.’s claims.”
Use of force, prejudicial assumptions
The case said WM’s deteriorating mental condition “was documented by the mental health and nursing staff at (Chittenden Regional Correctional Facility) and relayed to the placement coordinator at the (Department of Mental Health),” and staff urged the coordinator “to move her to a psychiatric facility as soon as possible.”
“The indications of her mental deterioration included her inability to hold a ‘logical’ conversation with staff, as well as statements that seemed delusional and hallucinatory,” the case reads.
“She refused to wear clothes and flooded her cell by running the water in the sink and stopping up the drain. She urinated and defecated in the water and engaged in fecal smearing. This created a significant health and safety risks to her, staff and other inmates using the hallway in the unit.”
“She was assaultive to staff and was non-compliant with a medication regimen. She was verbally abusive and insulting towards staff and engaged in other extreme behaviors,” the case reads.
The commission said men dressed in full protective gear, including raincoats, would use force to extract WM from the cell at various times during her stay in order to clean the cell. “The extractions were resource intensive and the videos are disturbing to view,” the case said.
The commission said the staff used a strategy of making “simple and reasonable” requests to WM to get her to leave her cell. However, the commission says employing that strategy was prejudicial to WM because of the mania resulting from her psychiatric disability.
“The problem with the ‘rational request’ approach is that it presumes rationality – that is, that a highly manic and/or psychotic person can suspend their mental state to accommodate breakthrough moments of lucidity that allow them to comply with logical requests,” the decision reads.
“This assumption reflects a prejudice towards those who have mental illnesses – that the person refuses to comply not because they cannot, but because they are willful or ‘faking it,’ or exaggerating their mental state,” the case says.
A well-documented problem
Karen Richards, the executive director of the Human Rights Commission, said these kinds of incidents are a trend in Vermont.
In 2016, the Human Rights Commission found discrimination in a similar case against a patient identified as DC. The commission then sued the state of Vermont, but had to drop the case when DC died,” Richards said.
“What we’ve been primarily concerned about here at the commission is the fact that because of the lack of sufficient Level 1 beds in the state, there are folks like WM who are ending up at a correctional facility instead of a psychiatric bed,” Richards said.
She said the state needs to put more money into the mental health system to help solve this problem. She said the Department of Corrections should also “have a better ability to deal with these people in a manner that is more appropriate to their actual needs and that meets the needs of the law.”
Richards expects that the commission will see more cases as time goes on “because the system remains broken and right now correctional facilities are often the only place for these folks to end up going. … The problem hasn’t been solved, and it’s really going to take a lot of work to get it to a point where it’s solved.”
AJ Ruben, a lawyer for Disability Rights Vermont, said the problems WM experienced are part of years-long underfunding of mental health services. He said the state needs to spend more money on community mental health care to solve the problem.
“Today, I think right now, there are a lot of people who are being detained in emergency departments because there are no inpatient beds and there are people in inpatient beds because there’s no room in the community,” Ruben said.
“The answers to fix the problem seem to be quite obvious, he said. “They’ve been reported on … and everyone who’s looked at it understand that what’s needed is to increase funding for community mental health programs, especially voluntary programs.
Other solutions include “staff-supported short-term beds, residential programs, alternatives to emergency departments for people who are in crisis, a lot more mobile crisis workers so that the police don’t have to respond to people who are ill,” he said.
While the Legislature increased funding for mental health workers during the 2017 legislative session, he said that only helped to slow the deterioration of existing programs. No new programs were added.
It’s an open question whether the state will take further action, he said.
“Is the state going to dig in their heels and require that HRC file another lawsuit, or is there going to be some response that says ‘We’re going to prevent this from happening in the future?” Ruben asked.
