Section 10 Abuse or Neglect

• Library: Mental Health 2006

Patients in mental health facilities and programs are entitled to be free from verbal and physical abuse. Section 630.115.1(15), RSMo 2000. “[A]buse or neglect” includes any of the following:

• Beating, striking, or injuring a patient

• Mistreating or maltreating a patient, or handling or treating a patient in a brutal or inhuman manner

• Using any more force than is reasonably necessary for the proper control, treatment, or management of a patient

• Failing to provide services that are reasonable and necessary to maintain the physical and mental health of a patient when the failure presents either an imminent danger to the health, safety, or welfare of the patient or a substantial probability that death or serious harm will result

Section 630.155, RSMo 2000.

If there is reasonable cause to believe that a patient has been abused or neglected, the following persons shall immediately report or cause a report to be made to the Department of Mental Health or the Department of Health and Senior Services: “physician, dentist, chiropractor, optometrist, podiatrist, intern, nurse, medical examiner, social worker, psychologist, minister, Christian Science practitioner, police officer, pharmacist, physical therapist, facility administrator, nurse’s aide or orderly.” Section 630.165.1, RSMo Supp. 2005. “The report shall contain the name and address of the residential facility, day program or specialized service; the name of the patient . . .; information regarding the nature of the abuse or neglect; the name of the complainant; and any other information which might be helpful in an investigation.” Section 630.165.2.

If it is alleged or suspected that a patient who has been admitted to or is currently in a facility or program has been subjected to abuse that results in physical injury or is sexual abuse, the head of the facility or program “shall promptly notify local law enforcement authorities and cooperate fully with any investigation by them.” Section 630.168, RSMo 2000.

(§5.11) Immunities and Defenses

There are various immunities and defenses afforded for implementing measures to protect patients from harming themselves or others.

Missouri has statutorily provided qualified immunity related to civil detention actions. Section 632.440, RSMo 2000, provides the following immunity:

No officer of a public or private agency, mental health facility or mental health program; no head, attending staff or consultant of any such agency, facility or mental health program; no mental health coordinator, registered professional nurse, licensed physician, mental health professional nor any other public official performing functions necessary for the administration of this chapter [Comprehensive Psychiatric Services]; no peace officer responsible for detaining a person pursuant to this chapter; and no peace officer responsible for detaining or transporting, or both, any person upon the request of any mental health coordinator . . . or acting pursuant to the request of a guardian . . . or upon the request of the head of any supervisory mental health program . . . , regardless of whether such peace officer is outside the jurisdiction for which he serves as a peace officer during the course of such detention or transportation, or both, shall be civilly liable for detaining, transporting, conditionally releasing or discharging a person pursuant to this chapter or chapter 475, RSMo [Probate Code—Guardianship], at or before the end of the period for which the person was admitted or detained for evaluation or treatment so long as such duties were performed in good faith and without gross negligence.

To prove that a person acted with “bad faith” requires evidence that the person acted with “a dishonest purpose, moral obliquity, conscious wrongdoing, breach of a known duty through some ulterior motive or ill will partaking of the nature of fraud.” State ex rel. Twiehaus v. Adolf, 706 S.W.2d 443, 447 (Mo. banc 1986). “Gross negligence” is “reckless conduct done with knowledge that there is a strong probability of harm and indifference as to that likely harm” or a “willful and wanton abrogation of professional responsibility . . . conduct so egregious as to warrant an inference of a mental state unacceptable in a professional.” Boyer v. Tilzer, 831 S.W.2d 695, 698 (Mo. App. E.D. 1992).

Several cases have upheld the...