Judge dismisses yearslong case after state psychiatric hospitals change policies, ‘culture,’ hire more staff

A five-year court battle over how psychiatric hospitals in Washington treat patients who have been ruled not guilty by reason of insanity came to an end Wednesday when Chief U.S. District Judge Thomas Rice dismissed the case after determining significant improvements agreed to in a 2016 settlement had been made.

State attorneys and Spokane lawyer Andrew Biviano asked for a joint dismissal in late July after the Department of Social and Health Services, which runs Western and Eastern state hospitals, changed its policies, hired more staff and granted more patients grounds privileges in order to meet the requirements of the 2016 settlement agreement in the case.

In 2014, Ketema Ross and five other patients from Eastern and Western sued DSHS for limiting their ability to go outside, strip searching and restraining patients at unnecessary times, and not speedily releasing patients when they were stabilized.

Staff at Eastern State Hospital were conducting strip searches in 2018 and earlier this year, but the hospital has changed its policy to only allow strip searches with prior authorization from the hospital CEO and chief medical officer, according to the motion for dismissal.

“I also visited ESH on May 28, 2019, to meet with administrators, clinical supervisors, line staff, and patients to discuss this issue and settlement compliance generally,” Dr. Thomas Kinlen, director of DSHS’s forensic mental health services office, wrote in a July 24 declaration.

DSHS noted in a news release that patients were receiving treatment and were able to be out in the community, with release planning, before 2010.

When state law changed in 2010, the hospitals clamped down on their security and patients were rarely, if ever, allowed to leave without a court order.

The law change was spurred by Phillip Paul, a patient who walked away from his field trip group in 2009.

Before the 2016 settlement agreement, patients who were adjudicated as not guilty by reason of insanity were released at lower rates. Biviano said the policy change pendulum swung too far as a result of the 2010 law.

“Even though they had been doing it successfully for decades, they started being way overly cautious,” he said.

Now, he said, with the settlement agreement requirements met, there is a better balance.

“Yes, you have to think about public safety, but it’s OK to advocate for patients,” he said. “If they are stable and able to become members of our community safely again, they should.”

Biviano said he initially thought the settlement agreement could be implemented in a year, but it took a lot longer to turn policy into a reality.

“The No. 1 obstacle was changing the culture of the hospitals and their treatment approach,” he said.

But three years after the settlement agreement was approved, both state hospitals are hiring more forensic evaluators and the waiting list for forensic risk assessments has declined significantly. In 2017, Eastern State Hospital had 40 people on its wait list. As of May, there were four on the wait list. Since the settlement agreement was signed, 35 patients have been fully discharged from both state hospitals, which does not include those patients who are conditionally released.

To hire more staff at both hospitals, DSHS admitted that it needed more funding or lacked resources, court records show. Biviano filed a motion in what’s known as the Trueblood case, which also addresses the state’s mental health care system and last year secured some funding for the hospitals to hire more staff.

The Ross case also led to the hiring of an ombudsman, who will specifically advocate for patients’ rights to release and representation at Western and Eastern state hospitals.

State law only allows the hospitals to hold someone involuntarily if they are dangerous, but if a patient passes the risk assessment, the ombudsman can now monitor that process to ensure a patient is on track for release.

DSHS also created new forms for patients to use, including applications for releases and petitions for counsel.

With a new focus on release for patients not guilty by reason of insanity, the Ross settlement also assures that every patient gets an individualized treatment and care plan. Every three months, patients are re-evaluated for grounds privileges and release with a new form that clinicians will use. Biviano said the new form addresses questions like “Why is this person here?” and “What do they need to do to get out?”

Ultimately, Biviano said it comes down to a simple question for those treating people who are not morally culpable for the crimes they have committed, due to their mental health at the time of the incident.

“Are we healers or jailers?” he said.