Section 3 Nondiscrimination

• Library: Mental Health 2006

All persons within Missouri are “entitled to the full and equal use and enjoyment . . . of any place of public accommodation . . . without discrimination or segregation on the grounds of race, color, religion, national origin, sex, ancestry, or disability.” Section 213.065.1, RSMo 2000. “Places of public accommodation” include “[a]ny public facility owned, operated, or managed by or on behalf of this state or any agency or subdivision thereof, or any public corporation; and any such facility supported in whole or in part by public funds.” Section 213.010(15)(e), RSMo 2000. Hospitals would, therefore, be considered “places of public accommodation.” More specifically:

[N]o mental health facility or mental health program in which people may be civilly detained . . ., and no residential facility, day program or specialized service operated, funded or licensed by the department [of Health] shall deny admission or other services to any person because of his race, sex, creed, marital status, national origin, disability or age.

Section 630.200, RSMo 2000.

Under Title VI of the Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241: “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 42 U.S.C. § 2000d. “Program” and “activity” are broadly defined such that if a corporation provides health care services and receives federal financial assistance, the entire corporation is covered by the Civil Rights Act of 1964, not just the division receiving federal funds. Most hospitals and other health-related institutions are the recipients of federal financial assistance through the Hospital Survey and Construction Act (Hill-Burton Act), 60 Stat. 1040, and the Medicare and Medicaid programs, and thus are required to comply with the anti-discrimination provisions of Title VI.

Two other federal laws, § 504 (29 U.S.C. § 794) of the Rehabilitation Act of 1973, Pub. L. No. 93-112, 87 Stat. 355, and the Americans with Disabilities Act of 1990 (ADA), Pub. L. No. 101-336, 104 Stat. 327, prohibit discrimination against persons who are handicapped or disabled. While the Rehabilitation Act of 1973 applies only to facilities receiving federal funds, the ADA applies to public accommodations operated by private entities. Both the Rehabilitation Act of 1973 and the ADA have an exception to the duty to provide services if the person presents a direct threat to the health and safety of others. “Direct threat” is defined as “a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures, or by the provision of auxiliary aids or services.” 28 C.F.R. § 36.208(b). The determination of whether the person poses a direct threat must be the result of an individualized assessment, based on a reasonable judgment that relies on current medical knowledge or on the best available objective evidence. The assessment is to ascertain:

• the nature, duration, and severity of the risk
• the probability that the potential injury will actually occur; and
• whether reasonable modifications will mitigate the risks

Patients who are human immunodeficiency virus (HIV) positive are included in these protections against discrimination by both the Missouri and federal laws. Institutions are required to treat such patients if the institution has the capability and available resources to provide the necessary treatment. The Interpretive Guidelines issued by the Department of Justice for the ADA specifically include asymptomatic HIV among the types of diseases that constitute disabilities. 28 C.F.R. § 36.104.

Any health care professional who discriminates against a patient known to be HIV positive on the basis of that HIV infection, or who, before knowing a patient’s HIV status, makes HIV testing a condition of treatment is subject to disciplinary action by the applicable licensing board for violation of a professional trust or confidence or the commission of unprofessional conduct. Section 191.699, RSMo 2000.

(§5.4) Least Restrictive Environment

Patients are entitled to be placed in a treatment program that is the least restrictive environment required for that patient. “Least restrictive environment” is defined as:

[A] reasonably available setting or mental health program where care, treatment, habilitation or rehabilitation is particularly suited to the level and quality of services necessary to implement a person’s individualized treatment, habilitation or rehabilitation plan and to enable the person to maximize his functioning potential to participate as freely as feasible in normal living activities, giving due consideration to potentially harmful effects on the person and the safety of other facility or program clients and public safety.

Section 630.005(21), RSMo 2000.

The least restrictive environment doctrine was first applied in a mental health case in 1966. In Lake v. Cameron, 364 F.2d 657, 660 (D.C. Cir. 1966), a case in which a patient involuntarily committed to a hospital argued that she should be treated in a setting less restrictive than total confinement, the court held that “[d]eprivations of liberty solely because of dangers to the ill persons themselves should not go beyond what is necessary for their protection.” The least restrictive environment is the combination of therapeutic and preventative interventions that are conducive to the most effective and appropriate treatment that will give the mentally disordered person a realistic opportunity to improve their level of functioning. A person’s physical, social, or biological liberties should only be restricted as necessary to achieve legitimate purposes of protecting society and providing mental health treatment and care for the person. Ingo Keilitz et al., Least Restrictive Treatment of Involuntary Patients: Translating Concepts Into Practice, 29 St. Louis U. L.J. 691, 695–96 (1985). And when courts are called on to analyze a patient’s claim that their liberty interests are being violated, judgments made by professionals will be presumptively valid unless a decision is clearly inconsistent with accepted professional judgment, practice, or standards. Youngberg v. Romeo, 457 U.S. 307, 323 (1982).

This principle also applies if a patient is found to be in some degree incapacitated; the court must apply the least restrictive environment principle in determining the degree of supervision the patient requires. Section 475.075.10, RSMo 2000. “[T]here shall be imposed on the personal liberty of the ward only such restraint as is necessary to prevent him from injuring himself and others and to provide him with such care, habilitation and treatment as are appropriate for him considering his physical and mental condition and financial means.” Section 475.010.10, RSMo 2000. The guardian must “[a]ssure that the ward resides in the best and least restrictive setting reasonably available.” Section 475.120.3(1), RSMo 2000.

The least restrictive environment standard is also imposed in the context of involuntary commitments. After the initial 96 hours, a petition may be filed for additional inpatient detention and treatment or for outpatient detention and treatment. If the court finds that the patient, as a result of mental illness, presents a likelihood of serious harm to the patient or to others, the court shall order either that the patient be detained for inpatient involuntary treatment in the least restrictive environment for a period not to exceed 21 days or that the patient be detained for outpatient detention and treatment in the least restrictive environment for a period not to exceed 180 days. Section 632.335.4, RSMo 2000.

Duty to Protect

(§5.5) Use of Restraints

The duty to protect an individual from self-harm or harm to others may require the use of mechanical or chemical restraints. While the use of restraints is disfavored, they may be necessary for a health care facility or provider to meet its duty to control the conduct of the patient or to protect a foreseeable victim from a patient’s conduct. Bradley v. Ray, 904 S.W.2d 302, 311 (Mo. App. W.D. 1995); see also Restatement (Second) of Torts § 314 (1965). This duty to restrain arises from the special relationship between the health care facility or provider and the patient. By entering into the relationship, the health care facility or provider assumes responsibility for the safety of the patient as well as for any third person known to be threatened by the patient. Tarasoff v. Regents of Univ. of Cal., 551 P.2d 334, 344 (Cal. 1976).

The expectation is that a health care provider or facility will exercise reasonable care toward a patient as the patient’s mental and physical conditions require. When the health care provider or facility has notice or knowledge of facts that reasonably indicate a patient would be likely to commit self-harm or harm others, the health care provider or facility must use reasonable care based on the circumstances to prevent such harm. Klein v. Bia Hotel Corp., 49 Cal. Rptr. 2d 60, 65 (Cal. Ct. App. 1996).

The imposition of restraints must be balanced against the patient’s right to be free from restraints. “[L]iberty from bodily restraint always has been recognized as the core of the liberty protected by the Due Process Clause from arbitrary governmental action.” Youngberg v. Romeo, 457 U.S. 307, 316 (1982). But as the United States Supreme Court noted in that decision, “these interests are not absolute; indeed to some extent they are in conflict. . . . [T]here are occasions in which it is necessary . . . to restrain the movement of residents—for example, to protect them as well as others from violence.” Id. at 319–20.

In determining whether a patient’s constitutional right has been violated by the use of restraints, the patient’s...