Panel studying violence in health care settings focuses on lack of resources

AUGUSTA — The dire need for additional behavioral health care resources was again the focus of a legislative task force’s second meeting Tuesday studying the process for bringing criminal cases against perpetrators of violence in health care settings.

Members of the task force and invited speakers painted a picture of Maine’s behavioral health care system in which hospitals, residential and outpatient facilities and jails are understaffed and lack the proper resources to handle individuals who become violent and who may have mental illness.

The issue then becomes finding the right place for those people — if there is one available — and whether they should be held accountable through the criminal justice system.

The task force needs to “tread very carefully about not criminalizing mental health,” Malory Shaughnessy, executive director of the Alliance for Addiction and Mental Health Services, said.

Health care facilities cannot use a mental or behavioral health diagnosis to screen for violent acts nor is it indicative that a person will act violently, Dr. Michael Melia, the chief of emergency medicine at Eastern Maine Medical Center in Bangor, said.

At the same time, “we can’t expect the staff of these facilities to take these assaults just because they have a diagnosis.”

But as Shaughnessy and others pointed out, many organizations do not have the staffing and ability to make certain capital investments that would make facilities safer for patients and staff.

“I feel like this is being set up as a problem between hospitals and behavioral health facilities, and then we call in the police when we can’t deal with it. And it really is a problem of resources,” said Betsy Sweet, an advocate with the Behavioral Health Community Collaborative, which represents mental health agencies.

“If we can manage people and their behaviors with resources being added (and) without criminalizing it, that is really critical for this committee,” Shaughnessy said.

As it stands, law enforcement is “the default social service provider after hours and on weekends,” Cumberland County Sheriff Kevin Joyce said.

“The reality is that we’re using the jails to kind of compensate” for what’s missing in Maine’s mental health system.

“We’re out there trying to mitigate mental health crises,” Joyce said. “And really up until February, at least in Cumberland County, there were no other options than an emergency department.”

Joyce said Spurwink’s living room crisis center in Portland is taking some of the pressure off law enforcement agencies in the area, “but my colleagues in other parts of the state do not have that luxury.”

Dr. Michael Kelley, the behavioral health chief for St. Mary’s Health, said when it comes to individuals with some sort of mental disability who get violent with staff, said he agrees that “we don’t want to criminalize mental health.”

However, “if we don’t draw the line somewhere it sends the message unfortunately that people can do whatever they want,” and as a mental health provider, he said it sends the message to these individuals that they’re not the same kind of person as anyone else.

It also sends a message to staff that they are not worthy of protection, he said.

As a physician, he thinks about a patient’s mental capacity to understand the choices they are making, the consequences of those choices and if they know right from wrong.

When it comes to deciding what that patient’s capacity was and whether to get law enforcement involved, “it is not an easy decision,” Kelley said. “We as providers feel very strongly about protecting our patients … but we have to protect people.”

But when it comes to the judicial system, the burden is on the state to prove beyond a reasonable doubt that a person acted with full capacity, Maine District Court Judge Andrew Robinson said.

“All of these protections and standards reflect the significance of the consequences of being convicted of a crime,” he said.

The high burden of proof and other factors, such as an individual’s mental state, makes filing charges in these cases difficult — or at least incredibly complicated.

Robinson said he wanted to outline this process because it is “important for people to know what challenges exist to a prosecutor making these decisions.”

Frayla Tarpinian, an assistant district attorney for Kennebec and Somerset counties and a member of the task force, said she understands why health care providers or employers, who are “thoughtful and careful about the cases they’ve brought forward,” feel frustrated.

“When they’re not prosecuted, it looks like to them and it feels like to them that we don’t care about them,” she said.

Prosecutorial decisions are unique and vary case-to-case, office-to-office.

“When we talk about prosecution, you’re in a very interesting territory because it is really up to a DA about whether to charge,” Tarpinian said.

As she did in the first task force meeting in August, the assistant DA questioned the “efficacy” of using the criminal justice system to deter violence in health care settings.

“I would really like to fight with the idea that if we prosecute these folks more, that we’re going to stop the violence,” she said.

The task force is scheduled to meet at 9 a.m. Sept. 27. The hybrid meeting will be held in-person at the State House in Augusta and streamed online. This is the first time the task force will be hearing public testimony.

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