Transfer of patient at heart of case


	Edward M. Stern, J.D., has a private law practice in Newtonville, Mass. Stern serves as assistant dean for pre-law advising at Boston University and is a visiting lecturer for the University of Massachusetts/Boston Department of Sociology.

By Edward Stern, J.D.

A recent case involved the transfer of a person from one Massachusetts group home to another setting. The person involved is a 37-year-old woman who is described in a press release by the Coalition of Families and Advocates for the Retarded (www.cofar.org).

To summarize, Kristine Medeiros has mental retardation and autistic tendencies and developed retinal detachment in one eye since moving to the Woburn home five years ago. Kristine is verbal and friendly, although she can self-injure when frustrated or confused. She can write notes to her parents and house staff describing what happens to her. After a year of arguments with her parents about face guards and medication errors, Nexus (a nonprofit organization that operates housing programs for persons with developmental disabilities) notified DMR that it was canceling the contract regarding Kristine's services effective Aug. 28, 2007 and would evict her from her home of five years. Nexus and DMR gave no notice and no hearing as mandated by M.G.L. 123B, and the proposed new home, with lower-functioning (non-verbal) residents, does not meet Kristine's needs.

The press release continues with a presentation of M.G.L. Chapter 123B, Section 3: Chapter 123B Section 3 (http://www.mass.gov/legis/laws/mgl/123b-3.htm). It guarantees that transfers of people with mental retardation require 45 days written notice to guardians. The notice has to include a statement of how the transfer will result in improved services and quality of life for the retarded ward and the right of the guardian to examine the new facility. Individuals and guardians may appeal and no transfer can be made while the appeal is in progress.

In addition to deciding the case above, a number of competing social forces are at work.

Questions include:

1) which individuals need to care for themselves?
2) which individuals should be mainstreamed in regard to participation in society?
3) who should pay for care for those who are unable to care for themselves?
4) is age a factor when these decisions are made?
5) is there a limit to the disruption allowed by one person in a group setting?
6) who gets to decide which decisions are made for which people?

Pertinent to this case is that there is a statute that seems to cover the procedure in this matter. This fact is important because when questions arise, it shows that the legislature thought about the issue ahead of time and gave the world notice as to what all parties involved should be doing.

The legislature has provided a Department of Retardation and funded that department and also enacted legislation with some procedural safeguards. The legislature has the power to enact new legislation and can also change the rules in the future.

The next point to consider is the court's position. In this case, the trial court made a decision. A trial court finds fact, and did so here and then applies these facts to the law. Part of that analysis is interpreting the law, (i.e. the judge decides what the legislature meant when it enacted the law). However, in our system of law, the trial court (here it was the Superior Court in Massachusetts) does not have the final say regarding either the defining of the law or the application of the facts to the law.

The trial court does have the final say regarding what the facts are. In this case, there has been an appeal to a higher court, which can affirm the lower court decision or overrule the lower court decision. This higher court will then be setting precedent for courts to use as guidance in the future. The higher (appellate) court will decide the case with this understanding. However, the court could limit the result to the facts of this case. To ponder, is the same question being asked when the courts decide what is the proper result in this case or what is the proper result for all people similarly situated to the person in this case?

This case has other twists to consider. The care given in this case had a contract with the Department of Retardation. The question might be whether this company is actually covered by the statute or whether a group home is a "facility" as described in the statute. So far, one trial court has decided both these questions in the affirmative, resulting in allowing the person to presently remain in the group setting. Additionally, this facility may or may not be the proper place for this person. It is possible in these situations to lose sight of the real result or the real goals.

Transfer of patient at heart of case (March 2008 Issue)

By Edward Stern, J.D.

Transfer of patient at heart
of case
(March 2008 Issue)