The Right to Know

A committee sues for access to the records of mentally ill patients who died in state care

Every year, about 100,000 mentally ill patients get their care from state-contracted facilities. Some of these patients are rehabilitated, while others suffer silently in their own private hell.

A small percentage die, and with little reason given. But the Pima County Human Rights Committee filed a lawsuit Aug. 29 that could change that--or maintain the status quo at the Arizona Department of Health Services.

The suit seeks access to hundreds--and possibly thousands--of mortality reports that detail how patients of the state's behavioral health office died. The committee is asking Pima County Superior Court Judge Leslie Miller to intervene.

The case could set a precedent for public oversight in Arizona. It tests two conflicting statutes: One that allows public agencies to withhold records it deems part of its "peer review" process, and another that allows state-created citizen committees access to agency records for better public oversight.

So will the committee, created by the Legislature, win a battle for the public's right to know? Or will the public agency, which has constitutional powers to protect some information it uses for "quality control," keep the public's nose out of its business?

"It's been an interesting voyage so far," said committee member John O'Dowd, a Tucson lawyer.

The group receives incident reports from the state on mentally ill patients. Personal information is blacked out.

O'Dowd is one of the committee members who reviews these reports regularly. He says they are often more than two months behind schedule and rarely give more than the most basic details.

About a year ago, he noticed that a handful of young diabetics had died under the state's care during a two-month period. O'Dowd, a Type II diabetic at age 69, was alarmed and wanted to know more. He said he asked the department for an investigation, but was told that, based on the information at hand, the deaths weren't suspicious enough to investigate. O'Dowd laughed at the obvious absurdity.

"I didn't know enough information to show I needed an investigation," he said. "And that's why I needed an investigation."

So the committee formally requested all of the agency's mortality records--with any personal information blacked out--in January, according to their four-page complaint. The department turned them down two weeks later.

The committee appealed that decision in March and won. Administrative Law Judge Grant Winston ruled in favor of the group and recommended that the agency turn over the reports.

But since Winston's ruling is only a recommendation, DHS Director Susan Gerard was free to reject it. And she did, according to the complaint.

DHS spokesman Michael Murphy deferred comment to Kevin Ray, a lawyer for the agency. He did not return phone calls seeking comment.

Michele G. Thompson, a lawyer for the committee, said the agency is blocking the group from doing its job.

"In order to oversee and ensure the rights of these mentally ill clients are being taken care of, (the committee) needs access to those records," she said.

Two assistant attorneys general representing the department say the case is "very rare." If the committee wins access, they said it would have a chilling effect on future employees coming forward to report problems, if mortality reports become public knowledge.

"If those reports were a public record, nobody in their right mind would come forward and say, 'Yeah I did it; I screwed up' or 'I gave him the wrong medication,'" Assistant Attorney General Bob Sorce said.

Sorce and Assistant Attorney General Kevin Ray said the reports should be kept private for "quality control" purposes.

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