State Says Releasing Psychiatric Patients Too Risky Despite Covid

California’s Department of State Hospitals says patients are too dangerous to be released from its largest psychiatric hospital—and that the agency doesn’t have the authority to do so even if it wanted to, despite a recent surge in Covid-19 infections.

Court documents filed late Tuesday offer a preview of arguments set for Jan. 12 in a lawsuit brought on behalf of patients at Patton State Hospital in San Bernardino.

An advocacy group has asked the U.S. District Court for the Central District of California to order the release of as many as half the patients housed in Patton after a dramatic rise in Covid-19 cases, according to a court filings that allege patient protections against the virus are grossly inadequate.

The case is part of a national trend of outbreaks hitting a vulnerable and largely overlooked population: people with mental health disorders who are locked up, often in underfunded mental health facilities that are not designed to allow for social distancing to prevent the spread of infectious disease.

The Allegations

Disability Rights California initially filed the class action in August against the operators of the hospital and the director of the California Department of State Hospitals.

The group cited the rise of cumulative cases at the 1,527-bed facility from 151 on Oct. 24 to 335 by Dec. 14, according to court filings.

Since then, cumulative cases have risen to 430, and a total of 13 patients at the state’s largest psychiatric hospital have died, according to state data.

Many patients have already been evaluated as “eligible for discharge,” yet remain in custody, according to the plaintiffs’ filings.

“The extreme danger that Plaintiffs and the proposed class now face necessitates expedited relief,” according to court filings from the advocacy group.

Some 929 patients at Patton had at least one medical risk factor for Covid-19, according to a November survey conducted by DSH.

Of those, 272 were recommended to the committing court as being “clinically and forensically appropriate for discharge,” according to the state’s filings.

DSH officials did not immediately respond to questions about how many of those 272 patients have been released.

In the meantime, vulnerable patients are “fighting for their lives,” and the vaccination of “some” patients and staff is insufficient, Disability Rights of California said in court filings.

Lawyers for the plaintiffs contend the state is violating patients’ due process rights, guaranteed under the Fourteenth Amendment, as well as Title II of the Americans with Disabilities Act.

California’s Case

DSH said in new motions that patients and staff are being vaccinated on an “ongoing” basis. They did not immediately respond to a request for precise numbers.

The court filings emphasized the violence committed by the plaintiffs bringing the case—including a stabbing, multiple assaults, attempted murder, and a seven-hour violent crime spree that left one man dead and multiple people injured.

Granting Disability Rights of California’s request for a 50% reduction in population would result “in the release, to the streets, of roughly 600 of the seriously mentally-ill patients currently undergoing court-ordered treatment at DSH-Patton,” according to the state’s Tuesday filings.

DSH also urged the court to deny plaintiffs’ requests to certify a provisional class of patients at Patton.

“Every class-member would have to be separately evaluated to determine whether he is clinically and forensically able to be released or transferred (and many will not be), under different standards applicable to different patients, all subject to individually tailored treatment plans,” according to filings.

In other words, the proposed class lacks the “commonality” required by law.

The process of releasing patients deemed not guilty by reasons of insanity is a long one, and DSH contends it “lacks the authority to transfer or release anyone from Patton, that determination, generally, must be made at an evidentiary hearing, or by means of a jury trial, in the committing court.”

The agency also disputed that plaintiffs would be able to show a “causal link between their disability and any alleged discriminatory actions.”

Lawyers for Patton patients contend that California Gov. Gavin Newsom’s March executive order gave the Department of State Hospitals the authority to take necessary steps—including discharge and transfer to less restrictive settings—to keep patients safe.

In addition, the agency wrote to the Office of the Public Guardian in 12 state counties, asking officials to collaborate to discharge patients “who have worked hard with their treatment team to return to the community” because they “should be timely discharged to a less restrictive environment.”

Advocates say that never happened.

The case is Hart v. Clendenin, C.D. Cal., No. 5:20-cv-01559, Filings 1/5/21