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Disability Rights New Jersey, Inc v. Jennifer Velez

July 19, 2011

DISABILITY RIGHTS NEW JERSEY, INC., PLAINTIFF,
v.
JENNIFER VELEZ, IN HER OFFICIAL CAPACITY AS COMMISSIONER, STATE OF NEW JERSEY DEPARTMENT OF HUMAN SERVICE, AND MARY O'DOWD, IN HER CAPACITY AS THE ACTING COMMISSIONER OF THE STATE OF NEW JERSEY, DEPARTMENT OF HEALTH AND SENIOR SERVICES, DEFENDANTS.



The opinion of the court was delivered by: Debevoise, Senior District Judge

NOT FOR PUBLICATION

OPINION

Plaintiff, Disability Rights New Jersey ("DRNJ") brings this action against Defendants Jennifer Velez and Mary O'Dowd in their capacities as Commissioners of the New Jersey Department of Human Services ("DHS") and New Jersey Department of Health and Senior Services ("DHSS") respectively. Plaintiff represents psychiatric patients who either are or will be treated at psychiatric hospitals in the state of New Jersey. Plaintiff alleges that Administrative Bulletin A.B. 5:04, governing the involuntary administration of psychotropic drugs, is routinely violated in New Jersey hospitals. As a result, psychiatric patients are forced to consume psychotropic drugs against their will in violation of New Jersey law, the New Jersey and Federal Constitutions, and the regular and prudent practice of medicine. Plaintiff also alleges that the "Three Step" process by which patients are involuntarily medicated is constitutionally infirm even if followed, as it denies patients the ability to meaningfully challenge this dangerous violation of their bodies and minds.

Plaintiff now brings this emergency motion for a protective order, claiming that agents of the Defendants have engaged in efforts to harass, intimidate, and threaten potential witnesses who have cooperated with Plaintiff. For the reasons set forth below, Plaintiff's motion is DENIED.

I.BACKGROUND

DRNJ is a not-for-profit corporation that engages in advocacy on behalf of individuals with disabilities. Plaintiff is under contract with New Jersey to provide services as authorized under the Protection and Advocacy for Individuals with Mental Illness Act. 42 U.S.C. § 10801 et seq. Pursuant to statute, DRNJ has been allocated federal funds to "investigate incidents of abuse and neglect of individuals with mental illness", "pursue administrative, legal, and other appropriate remedies to ensure the protection of individuals with mental illness", and initiate legal action "to ensure the protection of individuals with mental illness who are receiving care or treatment in the State.." Id.

Defendant DHS is a state agency that provides medical care and assistance programs for economically disadvantaged or disabled residents of New Jersey. As part of its role in caring for individuals suffering from mental illness, DHS operates five inpatient psychiatric hospitals. DHS also funds most of the cost of indigent inpatient care at six other psychiatric units and hospitals that are independently operated. Defendant DHSS is a state agency charged with overseeing the delivery of medical care in New Jersey. DHSS does not operate any hospitals, but instead acts as a licensing body for all hospitals in the state, public and private.

Plaintiff brings this case as a broad challenge to the current rules and practices surrounding the involuntary administration of psychotropic drugs in New Jersey. Specifically, Plaintiff questions the application of Administrative Bulletin A.B. 5:04, published by the New Jersey Division of Mental Health and Hospitals and entitled "The Administration of Psychotropic Medication to Adult Voluntary and Involuntary Patients." A.B. 5:04 codifies procedures designed to protect the constitutional and statutory rights of patients receiving treatment for mental illness. Plaintiff claims that the procedures set forth in A.B. 5:04 are constitutionally infirm as written and rarely followed in practice. Plaintiff sues for an order compelling Defendants to reform their regulations, procedures, and practices to appropriately protect the rights of psychiatric patients as guaranteed by the United States and New Jersey constitutions and applicable laws.

Plaintiff's complaint contains numerous accounts of anonymous patients who have suffered mistreatment while under the care of doctors at psychiatric hospitals in New Jersey.

(Complaint ¶¶ 121-138). After this case was filed, Defendants filed a motion for a more definite statement, seeking to uncover the identities of the eight anonymous patients. (Doc. No. 14). Plaintiff initially resisted turning over this information without a protective order. (Complaint ¶ 4 at n.1). However in its papers, Defendants claimed that there was no need for this Court to issue a protective order, writing that:

[T]here is no valid basis for Plaintiff's hiding the complainants' identities from Defendants in the absence of a protective order and confidentiality agreement because Defendants are already required to keep this information confidential. Indeed, all records identifying any individual receiving services in a State psychiatric hospital are required to be kept confidential by State agencies. (Def. Defin. St. Br. 5).

Apparently satisfied with Defendants' assurances that they would properly handle the information, Plaintiff revealed the identities of the eight patients described in the Complaint. (Doc. No. 16). Defendant subsequently filed a motion to dismiss the Complaint, which is still pending. (Doc. No. 21).

During the pendency of the motion to dismiss, two of the patients whose names were revealed to Defendants complained of retaliation by staff members at the hospitals where they are currently confined. Patient S.L. had a news article describing this lawsuit placed in his chart, apparently to inform anyone with access to the chart that he was one of the patients named. In correspondence with Plaintiff, counsel for Defendants admits that this was done, and further admits that the improperly placed article was deliberately destroyed after Plaintiff's counsel learned about it. (Reisman Dec. Ex. B). Alarmingly, Defendant destroyed the document even though it had no other evidence of who might have placed the article in the patient's chart or the motivation for this act. Id.

Another patient, A.R., complained that three of Defendants' agents, Dr. Jacqueline McFarlane, Dr. Renee Wilson, and social worker Denise Chadwick threatened him after learning that he was cooperating with Plaintiff's lawsuit. Specifically, A.R. claimed that Dr. McFarlane had told him that she believed that he was suing her and that she would keep him hospitalized for as long as she could because of the lawsuit. (Reisman Dec. ¶ 3) (Lukens Dec. ¶¶ 3-4). An employee of Plaintiff, Louan Lukens, confirmed that A.R.'s chart contained an entry indicating that Dr. McFarlane was aware of the lawsuit and had discussed it with the ...


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