The District Attorney says he Plans to Seek Indictments Against the Other Employees who Restrained a Greensboro Teen Before his Death
A Guilford County grand jury charged a former Greensboro Charter psychiatric hospital worker with involuntary manslaughter Monday in the asphyxiation death of 16-year-old Tristan Sovern on March 4.
The grand jury accused Megan Duffany, one of seven Charter mental health workers and nurses who restrained the youth, of causing Sovern's death by placing a bed sheet and towel over his mouth and nose. Guilford District Attorney Jim Kimel said he probably will seek indictments against the six other mental health workers and nurses who struggled with Sovern as they tried to move the troubled teenager to a more secluded room.
Those additional indictments could come within 30 days, Kimel said.
At a news conference Monday afternoon, Kimel said he moved against Duffany first because she placed and held the towel and folded bed sheet over Sovern's head. "We wanted to see what the grand jurors would do with this one before moving to the others," Kimel said. "We are evaluating the others now."
Duffany, who worked for Charter for about a year and a half, could not be reached for comment Monday. Her Greensboro attorney, David Smith, declined to comment on the indictment.
Tristan Sovern's adoptive parents, Jean and Richard Allen of Greensboro, could not be contacted Monday. Telephone messages left at their home were unanswered.
The Allens have indicated they plan to sue Charter. Richard Allen said the state investigation and the autopsy show their son "was smothered."
The official cause of Sovern's death was listed as asphyxiation due to external airway obstruction. At the time of his death, Charter staffers held Sovern face-down on the floor of his room with his arms crossed beneath him and a towel and bed sheet held over his mouth, according to state investigators.
The private, for-profit Charter hospital, part of the nation's largest psychiatric hospital chain, reacted to the indictment with what a spokeswoman described as "extreme disappointment."
"The involuntary manslaughter charges are unwarranted and will only serve to have a chilling and detrimental effect on all other professional care-givers who are called upon to deal with deeply disturbed and violent patients," said Ann Gainey, hospital spokeswoman.
Sovern's death was tragic, Gainey said. "But those who risked severe injury in an attempt to restrain and subdue him should not be the subject of criminal proceedings. All those involved did the very best they could to bring about a more positive outcome in extremely difficult circumstances."
Kimel said Duffany will be allowed to surrender to authorities within the next few days. He said she will be asked, through attorney Smith, to appear before a state magistrate, who will set bail and a trial date. Duffany's first appearance in court, for administrative purposes, is scheduled for July 31.
If Duffany is convicted, the maximum amount of prison time she could receive would be four years and one month.
Duffany and four of the other Charter workers who restrained Sovern were fired by Charter as part of an agreement with the state that allowed the hospital to retain its license to operate in North Carolina. Charter also agreed to replace its director of nursing and to require its chief executive officer, Nancy Reaves, to take a leave of absence and require her to undergo training and re-evaluation at another Charter facility.
Kimel declined to say whether he might seek indictments against Charter administrators who may have known about or authorized the practice of wrapping a patient's head with a towel and bed sheet as a means of restraint.
Investigators said, in a lengthy report after Sovern's death, that Charter mental health staffers told them that mouth coverings were used at least 80 percent of the time in the hospital's adolescent wing when staffers transported problem youths to a seclusion room.
Kimel said he sought an involuntary manslaughter indictment against Duffany, rather than a more serious charge, because there was no evidence that malice was involved in the Sovern's death. A charge such as voluntary manslaughter or murder "would not have been appropriate," he said.
As it stands, the state must prove that Duffany acted with criminal negligence to such a degree that her "gross recklessness or carelessness amounted to a heedless indifference to the safety and rights" of Sovern, Kimel said.
Most involuntary manslaughter cases involve a weapon or an automobile, not a towel and a bed sheet, Kimel said.
Nevertheless, the towel and bed sheet were sufficient to prevent Sovern from breathing and to cause his death, according to local and state investigators.
Sovern, who had a history of emotional problems, was admitted to Charter on Feb. 26 severely depressed and talking of suicide. His parents said he also had a cold and had difficulty breathing through his nose.
On the evening of March 4, Charter staffers became concerned when Sovern began crying in group therapy. Their concern was amplified when another patient told them that Sovern had a fish hook and intended to harm himself.
Charter workers decided to move him to a "seclusion room" where he could be more closely monitored. A report of the incident by investigators with the state Department of Health and Human Services shows that staffers placed Sovern on the floor of his room in a "therapeutic" hold with his feet and arms secured.
The report states that Duffany told investigators she placed a small towel over Sovern's mouth to prevent him from biting. A nurse then handed her a "larger and longer towel" which she placed over Sovern's face. But that was not large enough, Duffany said, and she asked for something larger. A nursing supervisor then handed her a folded sheet, which Duffany placed over the towel, the report states.
According to the state report, Duffany told investigators that Sovern "kept screaming and hollering, 'I can't breathe,' and 'You're choking me.'"
Duffany told investigators that the folded sheet and towel remained over Sovern's mouth as the workers carried Sovern to the seclusion room. Only when he reached that room were the sheet and towel removed. But it was too late, the report states. Sovern had stopped breathing.
Staff writer Michele D. Snipe contributed to this report.
Swofford, Stan. "The District Attorney says he Plans to Seek Indictments Against the Other Employees who Restrained a Greensboro Teen Before his Death." News and Record, 6 June 1998.
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DA Ends Probe of Charter Patients Death\No Further Charges Will be Filed in the Investigation into Tristan Sovern's Death at a Greensboro Psychiatric Facility
Prosecutors have closed the investigation into Tristan Sovern's 1998 death at Charter Behavioral Health Systems, Guilford County District Attorney Jim Kimel said Friday.
The district attorney's office decided not to pursue additional criminal charges against other Charter employees after a jury found a Greensboro health care worker not guilty last month in Sovern's death.Sovern, 16, died after Megan Duffany and six other health care workers at the Greensboro Charter hospital restrained the teen by placing a bed sheet and towel over his mouth and nose on March 4, 1998.
Duffany, 23, was the first health care worker in the state to be charged with involuntary manslaughter in the death of a patient. She was working as a mental health aide at Charter at the time of Sovern's death.
The medical examiner ruled that Sovern, who had a bad cold at the time, died from asphyxiation by an external airway blockage. Duffany's attorneys argued during her trial that Sovern died of other causes.
Prosecutors sought an indictment against Duffany because she placed and held the towel and folded bed sheet over Sovern's head, Kimel said.
But prosecutors decided that if a jury wouldn't find her guilty of Sovern's death, then they would have an even more difficult time proving the other workers were responsible for his death, Kimel said.
"We felt we could not prove it beyond a reasonable doubt," Kimel said. "It could be that jurors had some doubt that the asphyxiation was the proximate cause of death."
To prove involuntary manslaughter in Sovern's death, prosecutors had to prove that Duffany acted with criminal negligence to such a degree that her gross recklessness or carelessness amounted to a heedless indifference to Sovern's safety and rights.
Charter officials would say little Friday about the district attorney's decision.
"We're very pleased with the district attorney's decision not to pursue further charges," said Nancy Reaves, CEO of Charter. Reaves would not comment further.
Charter's 90 mental health facilities across the country were the subject of a "60 Minutes II" investigation that aired during Duffany's trial.
The TV report pointed out that Charter admits about 120,000 patients each year, half of them juveniles, and last year took in $730 million, half of that taxpayer money in the form of Medicare or Medicaid payments.
CBS investigators found public records showing that Sovern had been the third patient in four months to die while being restrained in a Charter hospital. "60 Minutes II" said it had documented 32 patients who died while being restrained in mental health facilities other than Charter's.
CBS said its investigation found untrained staffs, unsafe wards and patients getting hurt inside Charter hospitals.
Sovern's parents checked him into Charter psychiatric hospital in Greensboro because he was suffering from depression and suicidal thoughts. Sovern had a history of emotional disorders and behavioral problems. According to testimony from Charter workers, Sovern threatened to rape teenage girls and kill staffers, and he said his goal was to commit suicide.
Since his death, Jean Allen, Sovern's adoptive mother, has become a vocal advocate for reforms in mental health and mental retardation facilities.
Although the district attorney's office wasn't able to gain a conviction in Sovern's death, Kimel described the process as a positive process that raised awareness of the use of restraints in mental facilities.
"I think it raised the public's awareness of what was going on there," Kimel said. "I think it was a deterrent effect in that it shows prosecutors aren't afraid to bring criminal charges."
Bolstad, Erika. "DA Ends Probe of Charter Patients Death\No Further Charges Will be Filed in the Investigation into Tristan Sovern's Death at a Greensboro Psychiatric Facility." News and Record, 28 May 1999.
*****
CBS Exposé Blurs Treatment, Privacy and Ethics Issues Network Risks Criminal, Civil Charges To Air Story
Even the threat of criminal prosecution didn't dissuade CBS from broadcasting a "60 Minutes II" investigation called "Unsafe Haven," an hour-long report that chronicled alleged abuses committed "in more than 20 Charter Hospitals." A last-minute effort by Charter Behavioral Health Systems, the nation's largest provider of inpatient mental health services, to obtain an injunction against the April airing failed, but not without the judge in the case taking some legal swipes at CBS.
U.S. District Judge Graham C. Mullen told lawyers in a North Carolina federal court that he could not stop the broadcast because "the Supreme Court has elevated press powers to a point that prior restraint is all but impossible even where, as in this case, it appears that the press may well have set out to and committed a federal crime in order to obtain the information." Saying that he was "very sympathetic with [Charter's] position," the judge added that he would ask the U.S. attorney to investigate whether any felonies were committed by CBS. "Certainly the press is not free to commit crime nor to send people out on its behalf to commit crime," he said.
Meanwhile, officials at Charter said that they were "considering all of their legal options," an indication that the company may take civil action against CBS and others associated with the broadcast.
The most controversial aspect of the program was footage obtained by Terrance Johnson, a licensed, master's degree-level social worker, who spent eight weeks working at a lower level job at Charter Pines, a facility in Greensboro, N.C. At CBS' behest, Johnson taped patients when he thought he saw "evidence of wrongdoing or dangerous conditions," using a video camera hidden in his glasses and operated from a switch in his pants pocket.
Sequences revealed workers altering vital signs on medical records, using psychiatric terms they did not understand, and describing patients and making chart entries to substantiate insurance payments rather than to accurately record medical conditions. In segments on seclusion and restraint, a running commentary by a committee for the American Psychiatric Association and other experts confirmed that apparently untrained Charter staff used dangerous and unnecessary efforts to gain control over children. A psychiatrist is shown visiting the facility late at night after the children have gone to sleep, pausing long enough to chart a visit.
In all, CBS charged that, after a year-long investigation, they uncovered "unsafe conditions, deaths and coverups" at Charter hospitals "from Massachusetts to California." Profiling the case of Tristan Sovern, a 16-year-old who died during a restraint and seclusion episode, the program reported allegations that the teen died as the result of asphyxiation when a staff member wrapped a towel and sheet around his face. Coincidentally, a week after the broadcast, Megan Duffany, 23, the hospital worker charged with manslaughter after the death, was acquitted by a jury in Greensboro, N.C.
In the aftermath of the CBS report Charter officials called the program "sensationalized, and filled with half-truths, innuendo and some gross inaccuracies." In a telephone interview with Psychiatric Times following the broadcast, Mike French, Charter president and CEO, and Gary Henschen, M.D., senior vice president and chief medical officer, said that while the undercover taping exposed some deficiencies the company would need to investigate, it also posed a severe threat to patient privacy, and failed to record the full context of the situations involving their patients. Denying the program had any adverse impact on Charter, they said that the negative depictions could nevertheless deter some individuals from seeking mental health care, particularly at a time when school shootings have heightened public concerns about adolescent growth and development.
"Our concern was not about Charter Behavioral Health Systems, but about our patients and their confidentiality," French said. "When we became aware they had engaged a hidden camera in our facility and had engaged one of our former employees to use a hidden camera we were incensed...The whole basis of psychiatric and mental health services is patient confidentiality, and to have an organization that would potentially breach that patient confidentiality was significant to us and to the industry."
All of Charter's facilities are accredited by the Joint Commission on Accreditation of Health Care Organizations, 30% of them with commendation, said French. "To have a story come out that would insinuate because of one isolated situation that 91 hospitals aren't the highest quality-a fact that has been demonstrated by review after review, patient after patient-is very disturbing."
Calling their corporate compliance and internal audit programs the best in the industry, Henschen said that "the second most disturbing thing" was that Johnson failed to invoke the very procedures Charter developed to deal with problems on the units.
"We receive corporate compliance calls on a regular basis, and we take every one seriously and we review every one," said Henschen. "I do not know the circumstances of Johnson's relationship with CBS News...all I know is that if he observed those things, why didn't he avail himself of the corporate compliance program, or go to a supervisor? There has never been an employee reprimanded for using the corporate compliance line." Henschen did acknowledge that the company was investigating why Johnson didn't "appear to receive training in a timely fashion," but added that the system is also based on "clinicians reporting such violations."
None of the tapes were made available to Charter prior to the broadcast, a sticking point for French who said they would have offered to respond in an "open and direct" way. But CBS was not hesitant to show the tapes to a covey of government officials and others, establishing the credibility of the charges leveled by the network by using their highly critical commentary during the broadcast. One of those commentators was David Fassler, M.D., a child and adolescent psychiatrist from New Hampshire, who is the chair of the APA council on children, adolescents and their families.
In an ironic twist, days before the broadcast, the APA's medical director Steven Mirin, M.D., in a joint statement with the National Association of Psychiatric Health Systems, criticized CBS' use of hidden camera footage. "Our patients expect, deserve, and are guaranteed by law the right to confidentiality when seeking and receiving help for psychiatric and addictive disorders," he said. "Any violation of confidentiality is serious, potentially damaging to the fabric of patient care, and should be dealt with to the full extent of the law."
Fassler said he was one of dozens of psychiatrists at both the APA and the American Academy of Child & Adolescent Psychiatry that CBS talked to while preparing its report. "My goal through participating was to try to convey the message that there are kids with serious psychiatric problems and that at times some of these kids will need to be in the hospital," Fassler said. "During those hospitalizations the use of seclusion and restraint may be appropriate and clinically indicated." Conceding that this message was not as clearly expressed as he would have preferred, Fassler added that, "it's also important to know that I said many things in the course of my interview and discussions with '60 Minutes [II]' that may not have been shown in the final program."
Nevertheless, Fassler does not regret his involvement. "I hope and believe that my involvement with the show enhanced the clinical sensitivity and awareness of the producers, and although I had no control over the final decisions or what parts of my interview were utilized, overall the program contributed to the debate on this important topic."
Although he wouldn't comment directly on Fassler's involvement until "I've talked to him about it," Charter's Henschen questioned whether the appearance on the program violated ethical standards. "I wonder if he knew the circumstances under which this tape was obtained-it was obtained illegally, violating both federal and state law. I also wonder how Fassler explains making comments about patients he has never examined...If I were asked to do something like that, I would want to know the circumstances under which such a tape was obtained, and whether it was in violation of APA code of ethics on confidentiality, and [of] federal and state law."
Nada Stotland, M.D., chair of the APA's joint commission on public affairs, said she saw no conflict between the organization's statement on confidentiality and Fassler's participation. "I don't think the APA gave its imprimatur to the show or to the kinds of care [depicted]. A member of the APA lent some expertise and made it clear to the public that our experts in the area did not condone these practices, and found them beyond the pale," she said.
"I also have deep concerns about programs like that feeding into the age-old fear that people have of seeking psychiatric care. That is a great shame."
Clarke Ross, the deputy director of the National Alliance for the Mentally Ill (NAMI), an organization at the forefront of lobbying Congress to regulate the use of restraint and seclusion, said the CBS report, "was helpful in that it affirmed in a graphic way practices that many consumers and family members of NAMI have experienced."
Meanwhile, he did not believe the CBS expos would affect mental health policy negatively.
"We are advocating for more appropriate legally based monitoring and reporting systems so that the press does not have to resort to these kinds of interventions," said Ross. In addition, NAMI is advocating that policy-makers fill the "treatment gap" in order to assure that programs that actually work are reproduced nationally, while those that don't are eliminated.
"CBS Exposé Blurs Treatment, Privacy and Ethics Issues Network Risks Criminal, Civil Charges To Air Story." Psychiatric Times, 1 June 1999.
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Tristan's Quest
Jean and Richard Allen have turned the death of their adopted son into a way to help children like him who have emotional or behavioral problems. Tristan Sovern, an emotionally challenged 16-year-old, suffocated in 1998 while being restrained by workers at Greensboro's Charter Behavioral Health System Hospital. Tristan's case drew widespread attention and national investigations were launched into child-restraint deaths in several states. One Charter worker was charged with manslaughter but acquitted at trial. Charter subsequently closed its local hospital and a number of others across the nation. The Allens settled a lawsuit with Charter for an undisclosed amount of money and used the cash to start Tristan's Quest, a foundation to help children with problems similar to Tristan's. "I think Tristan would be really pleased," Jean Allen said. Tristan's Quest has supplied books and other materials for teachers of behaviorally or emotionally disturbed, or BED, students in Guilford County Schools.It has created a network of sorts for the county's BED teachers by hosting dinners four times a year. And it has created enrichment programs, such as photography projects and field trips. "They play a huge role in the education of kids with behavioral or emotional problems," said Tina Diffenbacher, BED teacher at Alamance Elementary School. Tristan's Quest has also trained teachers to use therapeutic restraint on children physically out of control, Diffenbacher said. Allen's quest has been a personal one. She has been the adoptive parent of five special-needs children and holds a Ph.D. in child development from the University of North Carolina at Greensboro. At first, she ran the foundation out of her house. Now, it occupies a building on Battleground Avenue. She has hired a full-time staffer, Debbie York, and uses interns from local colleges and volunteers. She has also created two clubs for BED students who are taught the concepts of caring and giving. One project for the clubs involved the anonymous pasting of smiley-face stickers throughout their school. "Most BED kids don't get to join a club," Allen said. "They're just not accepted. Often, these children are written off as not being interested in doing something kind." She also organized an ambitious photography project for students, providing cameras, expert advice from a photographer, a field trip for shooting photos and even a gallery exhibit of their work. "They've brought an incredible positiveness to the kids," said Jan Meier, BED teacher at Peck. "The best day was when we took the pictures. Every kid had an adult with them, and our kids crave that kind of attention."
"Tristan's Quest." WFMY-TV, 29 Dec. 2002.
A Guilford County grand jury charged a former Greensboro Charter psychiatric hospital worker with involuntary manslaughter Monday in the asphyxiation death of 16-year-old Tristan Sovern on March 4.
The grand jury accused Megan Duffany, one of seven Charter mental health workers and nurses who restrained the youth, of causing Sovern's death by placing a bed sheet and towel over his mouth and nose. Guilford District Attorney Jim Kimel said he probably will seek indictments against the six other mental health workers and nurses who struggled with Sovern as they tried to move the troubled teenager to a more secluded room.
Those additional indictments could come within 30 days, Kimel said.
At a news conference Monday afternoon, Kimel said he moved against Duffany first because she placed and held the towel and folded bed sheet over Sovern's head. "We wanted to see what the grand jurors would do with this one before moving to the others," Kimel said. "We are evaluating the others now."
Duffany, who worked for Charter for about a year and a half, could not be reached for comment Monday. Her Greensboro attorney, David Smith, declined to comment on the indictment.
Tristan Sovern's adoptive parents, Jean and Richard Allen of Greensboro, could not be contacted Monday. Telephone messages left at their home were unanswered.
The Allens have indicated they plan to sue Charter. Richard Allen said the state investigation and the autopsy show their son "was smothered."
The official cause of Sovern's death was listed as asphyxiation due to external airway obstruction. At the time of his death, Charter staffers held Sovern face-down on the floor of his room with his arms crossed beneath him and a towel and bed sheet held over his mouth, according to state investigators.
The private, for-profit Charter hospital, part of the nation's largest psychiatric hospital chain, reacted to the indictment with what a spokeswoman described as "extreme disappointment."
"The involuntary manslaughter charges are unwarranted and will only serve to have a chilling and detrimental effect on all other professional care-givers who are called upon to deal with deeply disturbed and violent patients," said Ann Gainey, hospital spokeswoman.
Sovern's death was tragic, Gainey said. "But those who risked severe injury in an attempt to restrain and subdue him should not be the subject of criminal proceedings. All those involved did the very best they could to bring about a more positive outcome in extremely difficult circumstances."
Kimel said Duffany will be allowed to surrender to authorities within the next few days. He said she will be asked, through attorney Smith, to appear before a state magistrate, who will set bail and a trial date. Duffany's first appearance in court, for administrative purposes, is scheduled for July 31.
If Duffany is convicted, the maximum amount of prison time she could receive would be four years and one month.
Duffany and four of the other Charter workers who restrained Sovern were fired by Charter as part of an agreement with the state that allowed the hospital to retain its license to operate in North Carolina. Charter also agreed to replace its director of nursing and to require its chief executive officer, Nancy Reaves, to take a leave of absence and require her to undergo training and re-evaluation at another Charter facility.
Kimel declined to say whether he might seek indictments against Charter administrators who may have known about or authorized the practice of wrapping a patient's head with a towel and bed sheet as a means of restraint.
Investigators said, in a lengthy report after Sovern's death, that Charter mental health staffers told them that mouth coverings were used at least 80 percent of the time in the hospital's adolescent wing when staffers transported problem youths to a seclusion room.
Kimel said he sought an involuntary manslaughter indictment against Duffany, rather than a more serious charge, because there was no evidence that malice was involved in the Sovern's death. A charge such as voluntary manslaughter or murder "would not have been appropriate," he said.
As it stands, the state must prove that Duffany acted with criminal negligence to such a degree that her "gross recklessness or carelessness amounted to a heedless indifference to the safety and rights" of Sovern, Kimel said.
Most involuntary manslaughter cases involve a weapon or an automobile, not a towel and a bed sheet, Kimel said.
Nevertheless, the towel and bed sheet were sufficient to prevent Sovern from breathing and to cause his death, according to local and state investigators.
Sovern, who had a history of emotional problems, was admitted to Charter on Feb. 26 severely depressed and talking of suicide. His parents said he also had a cold and had difficulty breathing through his nose.
On the evening of March 4, Charter staffers became concerned when Sovern began crying in group therapy. Their concern was amplified when another patient told them that Sovern had a fish hook and intended to harm himself.
Charter workers decided to move him to a "seclusion room" where he could be more closely monitored. A report of the incident by investigators with the state Department of Health and Human Services shows that staffers placed Sovern on the floor of his room in a "therapeutic" hold with his feet and arms secured.
The report states that Duffany told investigators she placed a small towel over Sovern's mouth to prevent him from biting. A nurse then handed her a "larger and longer towel" which she placed over Sovern's face. But that was not large enough, Duffany said, and she asked for something larger. A nursing supervisor then handed her a folded sheet, which Duffany placed over the towel, the report states.
According to the state report, Duffany told investigators that Sovern "kept screaming and hollering, 'I can't breathe,' and 'You're choking me.'"
Duffany told investigators that the folded sheet and towel remained over Sovern's mouth as the workers carried Sovern to the seclusion room. Only when he reached that room were the sheet and towel removed. But it was too late, the report states. Sovern had stopped breathing.
Staff writer Michele D. Snipe contributed to this report.
Swofford, Stan. "The District Attorney says he Plans to Seek Indictments Against the Other Employees who Restrained a Greensboro Teen Before his Death." News and Record, 6 June 1998.
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DA Ends Probe of Charter Patients Death\No Further Charges Will be Filed in the Investigation into Tristan Sovern's Death at a Greensboro Psychiatric Facility
Prosecutors have closed the investigation into Tristan Sovern's 1998 death at Charter Behavioral Health Systems, Guilford County District Attorney Jim Kimel said Friday.
The district attorney's office decided not to pursue additional criminal charges against other Charter employees after a jury found a Greensboro health care worker not guilty last month in Sovern's death.Sovern, 16, died after Megan Duffany and six other health care workers at the Greensboro Charter hospital restrained the teen by placing a bed sheet and towel over his mouth and nose on March 4, 1998.
Duffany, 23, was the first health care worker in the state to be charged with involuntary manslaughter in the death of a patient. She was working as a mental health aide at Charter at the time of Sovern's death.
The medical examiner ruled that Sovern, who had a bad cold at the time, died from asphyxiation by an external airway blockage. Duffany's attorneys argued during her trial that Sovern died of other causes.
Prosecutors sought an indictment against Duffany because she placed and held the towel and folded bed sheet over Sovern's head, Kimel said.
But prosecutors decided that if a jury wouldn't find her guilty of Sovern's death, then they would have an even more difficult time proving the other workers were responsible for his death, Kimel said.
"We felt we could not prove it beyond a reasonable doubt," Kimel said. "It could be that jurors had some doubt that the asphyxiation was the proximate cause of death."
To prove involuntary manslaughter in Sovern's death, prosecutors had to prove that Duffany acted with criminal negligence to such a degree that her gross recklessness or carelessness amounted to a heedless indifference to Sovern's safety and rights.
Charter officials would say little Friday about the district attorney's decision.
"We're very pleased with the district attorney's decision not to pursue further charges," said Nancy Reaves, CEO of Charter. Reaves would not comment further.
Charter's 90 mental health facilities across the country were the subject of a "60 Minutes II" investigation that aired during Duffany's trial.
The TV report pointed out that Charter admits about 120,000 patients each year, half of them juveniles, and last year took in $730 million, half of that taxpayer money in the form of Medicare or Medicaid payments.
CBS investigators found public records showing that Sovern had been the third patient in four months to die while being restrained in a Charter hospital. "60 Minutes II" said it had documented 32 patients who died while being restrained in mental health facilities other than Charter's.
CBS said its investigation found untrained staffs, unsafe wards and patients getting hurt inside Charter hospitals.
Sovern's parents checked him into Charter psychiatric hospital in Greensboro because he was suffering from depression and suicidal thoughts. Sovern had a history of emotional disorders and behavioral problems. According to testimony from Charter workers, Sovern threatened to rape teenage girls and kill staffers, and he said his goal was to commit suicide.
Since his death, Jean Allen, Sovern's adoptive mother, has become a vocal advocate for reforms in mental health and mental retardation facilities.
Although the district attorney's office wasn't able to gain a conviction in Sovern's death, Kimel described the process as a positive process that raised awareness of the use of restraints in mental facilities.
"I think it raised the public's awareness of what was going on there," Kimel said. "I think it was a deterrent effect in that it shows prosecutors aren't afraid to bring criminal charges."
Bolstad, Erika. "DA Ends Probe of Charter Patients Death\No Further Charges Will be Filed in the Investigation into Tristan Sovern's Death at a Greensboro Psychiatric Facility." News and Record, 28 May 1999.
*****
CBS Exposé Blurs Treatment, Privacy and Ethics Issues Network Risks Criminal, Civil Charges To Air Story
Even the threat of criminal prosecution didn't dissuade CBS from broadcasting a "60 Minutes II" investigation called "Unsafe Haven," an hour-long report that chronicled alleged abuses committed "in more than 20 Charter Hospitals." A last-minute effort by Charter Behavioral Health Systems, the nation's largest provider of inpatient mental health services, to obtain an injunction against the April airing failed, but not without the judge in the case taking some legal swipes at CBS.
U.S. District Judge Graham C. Mullen told lawyers in a North Carolina federal court that he could not stop the broadcast because "the Supreme Court has elevated press powers to a point that prior restraint is all but impossible even where, as in this case, it appears that the press may well have set out to and committed a federal crime in order to obtain the information." Saying that he was "very sympathetic with [Charter's] position," the judge added that he would ask the U.S. attorney to investigate whether any felonies were committed by CBS. "Certainly the press is not free to commit crime nor to send people out on its behalf to commit crime," he said.
Meanwhile, officials at Charter said that they were "considering all of their legal options," an indication that the company may take civil action against CBS and others associated with the broadcast.
The most controversial aspect of the program was footage obtained by Terrance Johnson, a licensed, master's degree-level social worker, who spent eight weeks working at a lower level job at Charter Pines, a facility in Greensboro, N.C. At CBS' behest, Johnson taped patients when he thought he saw "evidence of wrongdoing or dangerous conditions," using a video camera hidden in his glasses and operated from a switch in his pants pocket.
Sequences revealed workers altering vital signs on medical records, using psychiatric terms they did not understand, and describing patients and making chart entries to substantiate insurance payments rather than to accurately record medical conditions. In segments on seclusion and restraint, a running commentary by a committee for the American Psychiatric Association and other experts confirmed that apparently untrained Charter staff used dangerous and unnecessary efforts to gain control over children. A psychiatrist is shown visiting the facility late at night after the children have gone to sleep, pausing long enough to chart a visit.
In all, CBS charged that, after a year-long investigation, they uncovered "unsafe conditions, deaths and coverups" at Charter hospitals "from Massachusetts to California." Profiling the case of Tristan Sovern, a 16-year-old who died during a restraint and seclusion episode, the program reported allegations that the teen died as the result of asphyxiation when a staff member wrapped a towel and sheet around his face. Coincidentally, a week after the broadcast, Megan Duffany, 23, the hospital worker charged with manslaughter after the death, was acquitted by a jury in Greensboro, N.C.
In the aftermath of the CBS report Charter officials called the program "sensationalized, and filled with half-truths, innuendo and some gross inaccuracies." In a telephone interview with Psychiatric Times following the broadcast, Mike French, Charter president and CEO, and Gary Henschen, M.D., senior vice president and chief medical officer, said that while the undercover taping exposed some deficiencies the company would need to investigate, it also posed a severe threat to patient privacy, and failed to record the full context of the situations involving their patients. Denying the program had any adverse impact on Charter, they said that the negative depictions could nevertheless deter some individuals from seeking mental health care, particularly at a time when school shootings have heightened public concerns about adolescent growth and development.
"Our concern was not about Charter Behavioral Health Systems, but about our patients and their confidentiality," French said. "When we became aware they had engaged a hidden camera in our facility and had engaged one of our former employees to use a hidden camera we were incensed...The whole basis of psychiatric and mental health services is patient confidentiality, and to have an organization that would potentially breach that patient confidentiality was significant to us and to the industry."
All of Charter's facilities are accredited by the Joint Commission on Accreditation of Health Care Organizations, 30% of them with commendation, said French. "To have a story come out that would insinuate because of one isolated situation that 91 hospitals aren't the highest quality-a fact that has been demonstrated by review after review, patient after patient-is very disturbing."
Calling their corporate compliance and internal audit programs the best in the industry, Henschen said that "the second most disturbing thing" was that Johnson failed to invoke the very procedures Charter developed to deal with problems on the units.
"We receive corporate compliance calls on a regular basis, and we take every one seriously and we review every one," said Henschen. "I do not know the circumstances of Johnson's relationship with CBS News...all I know is that if he observed those things, why didn't he avail himself of the corporate compliance program, or go to a supervisor? There has never been an employee reprimanded for using the corporate compliance line." Henschen did acknowledge that the company was investigating why Johnson didn't "appear to receive training in a timely fashion," but added that the system is also based on "clinicians reporting such violations."
None of the tapes were made available to Charter prior to the broadcast, a sticking point for French who said they would have offered to respond in an "open and direct" way. But CBS was not hesitant to show the tapes to a covey of government officials and others, establishing the credibility of the charges leveled by the network by using their highly critical commentary during the broadcast. One of those commentators was David Fassler, M.D., a child and adolescent psychiatrist from New Hampshire, who is the chair of the APA council on children, adolescents and their families.
In an ironic twist, days before the broadcast, the APA's medical director Steven Mirin, M.D., in a joint statement with the National Association of Psychiatric Health Systems, criticized CBS' use of hidden camera footage. "Our patients expect, deserve, and are guaranteed by law the right to confidentiality when seeking and receiving help for psychiatric and addictive disorders," he said. "Any violation of confidentiality is serious, potentially damaging to the fabric of patient care, and should be dealt with to the full extent of the law."
Fassler said he was one of dozens of psychiatrists at both the APA and the American Academy of Child & Adolescent Psychiatry that CBS talked to while preparing its report. "My goal through participating was to try to convey the message that there are kids with serious psychiatric problems and that at times some of these kids will need to be in the hospital," Fassler said. "During those hospitalizations the use of seclusion and restraint may be appropriate and clinically indicated." Conceding that this message was not as clearly expressed as he would have preferred, Fassler added that, "it's also important to know that I said many things in the course of my interview and discussions with '60 Minutes [II]' that may not have been shown in the final program."
Nevertheless, Fassler does not regret his involvement. "I hope and believe that my involvement with the show enhanced the clinical sensitivity and awareness of the producers, and although I had no control over the final decisions or what parts of my interview were utilized, overall the program contributed to the debate on this important topic."
Although he wouldn't comment directly on Fassler's involvement until "I've talked to him about it," Charter's Henschen questioned whether the appearance on the program violated ethical standards. "I wonder if he knew the circumstances under which this tape was obtained-it was obtained illegally, violating both federal and state law. I also wonder how Fassler explains making comments about patients he has never examined...If I were asked to do something like that, I would want to know the circumstances under which such a tape was obtained, and whether it was in violation of APA code of ethics on confidentiality, and [of] federal and state law."
Nada Stotland, M.D., chair of the APA's joint commission on public affairs, said she saw no conflict between the organization's statement on confidentiality and Fassler's participation. "I don't think the APA gave its imprimatur to the show or to the kinds of care [depicted]. A member of the APA lent some expertise and made it clear to the public that our experts in the area did not condone these practices, and found them beyond the pale," she said.
"I also have deep concerns about programs like that feeding into the age-old fear that people have of seeking psychiatric care. That is a great shame."
Clarke Ross, the deputy director of the National Alliance for the Mentally Ill (NAMI), an organization at the forefront of lobbying Congress to regulate the use of restraint and seclusion, said the CBS report, "was helpful in that it affirmed in a graphic way practices that many consumers and family members of NAMI have experienced."
Meanwhile, he did not believe the CBS expos would affect mental health policy negatively.
"We are advocating for more appropriate legally based monitoring and reporting systems so that the press does not have to resort to these kinds of interventions," said Ross. In addition, NAMI is advocating that policy-makers fill the "treatment gap" in order to assure that programs that actually work are reproduced nationally, while those that don't are eliminated.
"CBS Exposé Blurs Treatment, Privacy and Ethics Issues Network Risks Criminal, Civil Charges To Air Story." Psychiatric Times, 1 June 1999.
*****
Tristan's Quest
Jean and Richard Allen have turned the death of their adopted son into a way to help children like him who have emotional or behavioral problems. Tristan Sovern, an emotionally challenged 16-year-old, suffocated in 1998 while being restrained by workers at Greensboro's Charter Behavioral Health System Hospital. Tristan's case drew widespread attention and national investigations were launched into child-restraint deaths in several states. One Charter worker was charged with manslaughter but acquitted at trial. Charter subsequently closed its local hospital and a number of others across the nation. The Allens settled a lawsuit with Charter for an undisclosed amount of money and used the cash to start Tristan's Quest, a foundation to help children with problems similar to Tristan's. "I think Tristan would be really pleased," Jean Allen said. Tristan's Quest has supplied books and other materials for teachers of behaviorally or emotionally disturbed, or BED, students in Guilford County Schools.It has created a network of sorts for the county's BED teachers by hosting dinners four times a year. And it has created enrichment programs, such as photography projects and field trips. "They play a huge role in the education of kids with behavioral or emotional problems," said Tina Diffenbacher, BED teacher at Alamance Elementary School. Tristan's Quest has also trained teachers to use therapeutic restraint on children physically out of control, Diffenbacher said. Allen's quest has been a personal one. She has been the adoptive parent of five special-needs children and holds a Ph.D. in child development from the University of North Carolina at Greensboro. At first, she ran the foundation out of her house. Now, it occupies a building on Battleground Avenue. She has hired a full-time staffer, Debbie York, and uses interns from local colleges and volunteers. She has also created two clubs for BED students who are taught the concepts of caring and giving. One project for the clubs involved the anonymous pasting of smiley-face stickers throughout their school. "Most BED kids don't get to join a club," Allen said. "They're just not accepted. Often, these children are written off as not being interested in doing something kind." She also organized an ambitious photography project for students, providing cameras, expert advice from a photographer, a field trip for shooting photos and even a gallery exhibit of their work. "They've brought an incredible positiveness to the kids," said Jan Meier, BED teacher at Peck. "The best day was when we took the pictures. Every kid had an adult with them, and our kids crave that kind of attention."
"Tristan's Quest." WFMY-TV, 29 Dec. 2002.
The District Attorney says he Plans to Seek Indictments Against the Other Employees who Restrained a Greensboro Teen Before his Death
A Guilford County grand jury charged a former Greensboro Charter psychiatric hospital worker with involuntary manslaughter Monday in the asphyxiation death of 16-year-old Tristan Sovern on March 4.
The grand jury accused Megan Duffany, one of seven Charter mental health workers and nurses who restrained the youth, of causing Sovern's death by placing a bed sheet and towel over his mouth and nose. Guilford District Attorney Jim Kimel said he probably will seek indictments against the six other mental health workers and nurses who struggled with Sovern as they tried to move the troubled teenager to a more secluded room.
Those additional indictments could come within 30 days, Kimel said.
At a news conference Monday afternoon, Kimel said he moved against Duffany first because she placed and held the towel and folded bed sheet over Sovern's head. "We wanted to see what the grand jurors would do with this one before moving to the others," Kimel said. "We are evaluating the others now."
Duffany, who worked for Charter for about a year and a half, could not be reached for comment Monday. Her Greensboro attorney, David Smith, declined to comment on the indictment.
Tristan Sovern's adoptive parents, Jean and Richard Allen of Greensboro, could not be contacted Monday. Telephone messages left at their home were unanswered.
The Allens have indicated they plan to sue Charter. Richard Allen said the state investigation and the autopsy show their son "was smothered."
The official cause of Sovern's death was listed as asphyxiation due to external airway obstruction. At the time of his death, Charter staffers held Sovern face-down on the floor of his room with his arms crossed beneath him and a towel and bed sheet held over his mouth, according to state investigators.
The private, for-profit Charter hospital, part of the nation's largest psychiatric hospital chain, reacted to the indictment with what a spokeswoman described as "extreme disappointment."
"The involuntary manslaughter charges are unwarranted and will only serve to have a chilling and detrimental effect on all other professional care-givers who are called upon to deal with deeply disturbed and violent patients," said Ann Gainey, hospital spokeswoman.
Sovern's death was tragic, Gainey said. "But those who risked severe injury in an attempt to restrain and subdue him should not be the subject of criminal proceedings. All those involved did the very best they could to bring about a more positive outcome in extremely difficult circumstances."
Kimel said Duffany will be allowed to surrender to authorities within the next few days. He said she will be asked, through attorney Smith, to appear before a state magistrate, who will set bail and a trial date. Duffany's first appearance in court, for administrative purposes, is scheduled for July 31.
If Duffany is convicted, the maximum amount of prison time she could receive would be four years and one month.
Duffany and four of the other Charter workers who restrained Sovern were fired by Charter as part of an agreement with the state that allowed the hospital to retain its license to operate in North Carolina. Charter also agreed to replace its director of nursing and to require its chief executive officer, Nancy Reaves, to take a leave of absence and require her to undergo training and re-evaluation at another Charter facility.
Kimel declined to say whether he might seek indictments against Charter administrators who may have known about or authorized the practice of wrapping a patient's head with a towel and bed sheet as a means of restraint.
Investigators said, in a lengthy report after Sovern's death, that Charter mental health staffers told them that mouth coverings were used at least 80 percent of the time in the hospital's adolescent wing when staffers transported problem youths to a seclusion room.
Kimel said he sought an involuntary manslaughter indictment against Duffany, rather than a more serious charge, because there was no evidence that malice was involved in the Sovern's death. A charge such as voluntary manslaughter or murder "would not have been appropriate," he said.
As it stands, the state must prove that Duffany acted with criminal negligence to such a degree that her "gross recklessness or carelessness amounted to a heedless indifference to the safety and rights" of Sovern, Kimel said.
Most involuntary manslaughter cases involve a weapon or an automobile, not a towel and a bed sheet, Kimel said.
Nevertheless, the towel and bed sheet were sufficient to prevent Sovern from breathing and to cause his death, according to local and state investigators.
Sovern, who had a history of emotional problems, was admitted to Charter on Feb. 26 severely depressed and talking of suicide. His parents said he also had a cold and had difficulty breathing through his nose.
On the evening of March 4, Charter staffers became concerned when Sovern began crying in group therapy. Their concern was amplified when another patient told them that Sovern had a fish hook and intended to harm himself.
Charter workers decided to move him to a "seclusion room" where he could be more closely monitored. A report of the incident by investigators with the state Department of Health and Human Services shows that staffers placed Sovern on the floor of his room in a "therapeutic" hold with his feet and arms secured.
The report states that Duffany told investigators she placed a small towel over Sovern's mouth to prevent him from biting. A nurse then handed her a "larger and longer towel" which she placed over Sovern's face. But that was not large enough, Duffany said, and she asked for something larger. A nursing supervisor then handed her a folded sheet, which Duffany placed over the towel, the report states.
According to the state report, Duffany told investigators that Sovern "kept screaming and hollering, 'I can't breathe,' and 'You're choking me.'"
Duffany told investigators that the folded sheet and towel remained over Sovern's mouth as the workers carried Sovern to the seclusion room. Only when he reached that room were the sheet and towel removed. But it was too late, the report states. Sovern had stopped breathing.
Staff writer Michele D. Snipe contributed to this report.
Swofford, Stan. "The District Attorney says he Plans to Seek Indictments Against the Other Employees who Restrained a Greensboro Teen Before his Death." News and Record, 6 June 1998.
*****
DA Ends Probe of Charter Patients Death\No Further Charges Will be Filed in the Investigation into Tristan Sovern's Death at a Greensboro Psychiatric Facility
Prosecutors have closed the investigation into Tristan Sovern's 1998 death at Charter Behavioral Health Systems, Guilford County District Attorney Jim Kimel said Friday.
The district attorney's office decided not to pursue additional criminal charges against other Charter employees after a jury found a Greensboro health care worker not guilty last month in Sovern's death.Sovern, 16, died after Megan Duffany and six other health care workers at the Greensboro Charter hospital restrained the teen by placing a bed sheet and towel over his mouth and nose on March 4, 1998.
Duffany, 23, was the first health care worker in the state to be charged with involuntary manslaughter in the death of a patient. She was working as a mental health aide at Charter at the time of Sovern's death.
The medical examiner ruled that Sovern, who had a bad cold at the time, died from asphyxiation by an external airway blockage. Duffany's attorneys argued during her trial that Sovern died of other causes.
Prosecutors sought an indictment against Duffany because she placed and held the towel and folded bed sheet over Sovern's head, Kimel said.
But prosecutors decided that if a jury wouldn't find her guilty of Sovern's death, then they would have an even more difficult time proving the other workers were responsible for his death, Kimel said.
"We felt we could not prove it beyond a reasonable doubt," Kimel said. "It could be that jurors had some doubt that the asphyxiation was the proximate cause of death."
To prove involuntary manslaughter in Sovern's death, prosecutors had to prove that Duffany acted with criminal negligence to such a degree that her gross recklessness or carelessness amounted to a heedless indifference to Sovern's safety and rights.
Charter officials would say little Friday about the district attorney's decision.
"We're very pleased with the district attorney's decision not to pursue further charges," said Nancy Reaves, CEO of Charter. Reaves would not comment further.
Charter's 90 mental health facilities across the country were the subject of a "60 Minutes II" investigation that aired during Duffany's trial.
The TV report pointed out that Charter admits about 120,000 patients each year, half of them juveniles, and last year took in $730 million, half of that taxpayer money in the form of Medicare or Medicaid payments.
CBS investigators found public records showing that Sovern had been the third patient in four months to die while being restrained in a Charter hospital. "60 Minutes II" said it had documented 32 patients who died while being restrained in mental health facilities other than Charter's.
CBS said its investigation found untrained staffs, unsafe wards and patients getting hurt inside Charter hospitals.
Sovern's parents checked him into Charter psychiatric hospital in Greensboro because he was suffering from depression and suicidal thoughts. Sovern had a history of emotional disorders and behavioral problems. According to testimony from Charter workers, Sovern threatened to rape teenage girls and kill staffers, and he said his goal was to commit suicide.
Since his death, Jean Allen, Sovern's adoptive mother, has become a vocal advocate for reforms in mental health and mental retardation facilities.
Although the district attorney's office wasn't able to gain a conviction in Sovern's death, Kimel described the process as a positive process that raised awareness of the use of restraints in mental facilities.
"I think it raised the public's awareness of what was going on there," Kimel said. "I think it was a deterrent effect in that it shows prosecutors aren't afraid to bring criminal charges."
Bolstad, Erika. "DA Ends Probe of Charter Patients Death\No Further Charges Will be Filed in the Investigation into Tristan Sovern's Death at a Greensboro Psychiatric Facility." News and Record, 28 May 1999.
*****
CBS Exposé Blurs Treatment, Privacy and Ethics Issues Network Risks Criminal, Civil Charges To Air Story
Even the threat of criminal prosecution didn't dissuade CBS from broadcasting a "60 Minutes II" investigation called "Unsafe Haven," an hour-long report that chronicled alleged abuses committed "in more than 20 Charter Hospitals." A last-minute effort by Charter Behavioral Health Systems, the nation's largest provider of inpatient mental health services, to obtain an injunction against the April airing failed, but not without the judge in the case taking some legal swipes at CBS.
U.S. District Judge Graham C. Mullen told lawyers in a North Carolina federal court that he could not stop the broadcast because "the Supreme Court has elevated press powers to a point that prior restraint is all but impossible even where, as in this case, it appears that the press may well have set out to and committed a federal crime in order to obtain the information." Saying that he was "very sympathetic with [Charter's] position," the judge added that he would ask the U.S. attorney to investigate whether any felonies were committed by CBS. "Certainly the press is not free to commit crime nor to send people out on its behalf to commit crime," he said.
Meanwhile, officials at Charter said that they were "considering all of their legal options," an indication that the company may take civil action against CBS and others associated with the broadcast.
The most controversial aspect of the program was footage obtained by Terrance Johnson, a licensed, master's degree-level social worker, who spent eight weeks working at a lower level job at Charter Pines, a facility in Greensboro, N.C. At CBS' behest, Johnson taped patients when he thought he saw "evidence of wrongdoing or dangerous conditions," using a video camera hidden in his glasses and operated from a switch in his pants pocket.
Sequences revealed workers altering vital signs on medical records, using psychiatric terms they did not understand, and describing patients and making chart entries to substantiate insurance payments rather than to accurately record medical conditions. In segments on seclusion and restraint, a running commentary by a committee for the American Psychiatric Association and other experts confirmed that apparently untrained Charter staff used dangerous and unnecessary efforts to gain control over children. A psychiatrist is shown visiting the facility late at night after the children have gone to sleep, pausing long enough to chart a visit.
In all, CBS charged that, after a year-long investigation, they uncovered "unsafe conditions, deaths and coverups" at Charter hospitals "from Massachusetts to California." Profiling the case of Tristan Sovern, a 16-year-old who died during a restraint and seclusion episode, the program reported allegations that the teen died as the result of asphyxiation when a staff member wrapped a towel and sheet around his face. Coincidentally, a week after the broadcast, Megan Duffany, 23, the hospital worker charged with manslaughter after the death, was acquitted by a jury in Greensboro, N.C.
In the aftermath of the CBS report Charter officials called the program "sensationalized, and filled with half-truths, innuendo and some gross inaccuracies." In a telephone interview with Psychiatric Times following the broadcast, Mike French, Charter president and CEO, and Gary Henschen, M.D., senior vice president and chief medical officer, said that while the undercover taping exposed some deficiencies the company would need to investigate, it also posed a severe threat to patient privacy, and failed to record the full context of the situations involving their patients. Denying the program had any adverse impact on Charter, they said that the negative depictions could nevertheless deter some individuals from seeking mental health care, particularly at a time when school shootings have heightened public concerns about adolescent growth and development.
"Our concern was not about Charter Behavioral Health Systems, but about our patients and their confidentiality," French said. "When we became aware they had engaged a hidden camera in our facility and had engaged one of our former employees to use a hidden camera we were incensed...The whole basis of psychiatric and mental health services is patient confidentiality, and to have an organization that would potentially breach that patient confidentiality was significant to us and to the industry."
All of Charter's facilities are accredited by the Joint Commission on Accreditation of Health Care Organizations, 30% of them with commendation, said French. "To have a story come out that would insinuate because of one isolated situation that 91 hospitals aren't the highest quality-a fact that has been demonstrated by review after review, patient after patient-is very disturbing."
Calling their corporate compliance and internal audit programs the best in the industry, Henschen said that "the second most disturbing thing" was that Johnson failed to invoke the very procedures Charter developed to deal with problems on the units.
"We receive corporate compliance calls on a regular basis, and we take every one seriously and we review every one," said Henschen. "I do not know the circumstances of Johnson's relationship with CBS News...all I know is that if he observed those things, why didn't he avail himself of the corporate compliance program, or go to a supervisor? There has never been an employee reprimanded for using the corporate compliance line." Henschen did acknowledge that the company was investigating why Johnson didn't "appear to receive training in a timely fashion," but added that the system is also based on "clinicians reporting such violations."
None of the tapes were made available to Charter prior to the broadcast, a sticking point for French who said they would have offered to respond in an "open and direct" way. But CBS was not hesitant to show the tapes to a covey of government officials and others, establishing the credibility of the charges leveled by the network by using their highly critical commentary during the broadcast. One of those commentators was David Fassler, M.D., a child and adolescent psychiatrist from New Hampshire, who is the chair of the APA council on children, adolescents and their families.
In an ironic twist, days before the broadcast, the APA's medical director Steven Mirin, M.D., in a joint statement with the National Association of Psychiatric Health Systems, criticized CBS' use of hidden camera footage. "Our patients expect, deserve, and are guaranteed by law the right to confidentiality when seeking and receiving help for psychiatric and addictive disorders," he said. "Any violation of confidentiality is serious, potentially damaging to the fabric of patient care, and should be dealt with to the full extent of the law."
Fassler said he was one of dozens of psychiatrists at both the APA and the American Academy of Child & Adolescent Psychiatry that CBS talked to while preparing its report. "My goal through participating was to try to convey the message that there are kids with serious psychiatric problems and that at times some of these kids will need to be in the hospital," Fassler said. "During those hospitalizations the use of seclusion and restraint may be appropriate and clinically indicated." Conceding that this message was not as clearly expressed as he would have preferred, Fassler added that, "it's also important to know that I said many things in the course of my interview and discussions with '60 Minutes [II]' that may not have been shown in the final program."
Nevertheless, Fassler does not regret his involvement. "I hope and believe that my involvement with the show enhanced the clinical sensitivity and awareness of the producers, and although I had no control over the final decisions or what parts of my interview were utilized, overall the program contributed to the debate on this important topic."
Although he wouldn't comment directly on Fassler's involvement until "I've talked to him about it," Charter's Henschen questioned whether the appearance on the program violated ethical standards. "I wonder if he knew the circumstances under which this tape was obtained-it was obtained illegally, violating both federal and state law. I also wonder how Fassler explains making comments about patients he has never examined...If I were asked to do something like that, I would want to know the circumstances under which such a tape was obtained, and whether it was in violation of APA code of ethics on confidentiality, and [of] federal and state law."
Nada Stotland, M.D., chair of the APA's joint commission on public affairs, said she saw no conflict between the organization's statement on confidentiality and Fassler's participation. "I don't think the APA gave its imprimatur to the show or to the kinds of care [depicted]. A member of the APA lent some expertise and made it clear to the public that our experts in the area did not condone these practices, and found them beyond the pale," she said.
"I also have deep concerns about programs like that feeding into the age-old fear that people have of seeking psychiatric care. That is a great shame."
Clarke Ross, the deputy director of the National Alliance for the Mentally Ill (NAMI), an organization at the forefront of lobbying Congress to regulate the use of restraint and seclusion, said the CBS report, "was helpful in that it affirmed in a graphic way practices that many consumers and family members of NAMI have experienced."
Meanwhile, he did not believe the CBS expos would affect mental health policy negatively.
"We are advocating for more appropriate legally based monitoring and reporting systems so that the press does not have to resort to these kinds of interventions," said Ross. In addition, NAMI is advocating that policy-makers fill the "treatment gap" in order to assure that programs that actually work are reproduced nationally, while those that don't are eliminated.
"CBS Exposé Blurs Treatment, Privacy and Ethics Issues Network Risks Criminal, Civil Charges To Air Story." Psychiatric Times, 1 June 1999.
*****
Tristan's Quest
Jean and Richard Allen have turned the death of their adopted son into a way to help children like him who have emotional or behavioral problems. Tristan Sovern, an emotionally challenged 16-year-old, suffocated in 1998 while being restrained by workers at Greensboro's Charter Behavioral Health System Hospital. Tristan's case drew widespread attention and national investigations were launched into child-restraint deaths in several states. One Charter worker was charged with manslaughter but acquitted at trial. Charter subsequently closed its local hospital and a number of others across the nation. The Allens settled a lawsuit with Charter for an undisclosed amount of money and used the cash to start Tristan's Quest, a foundation to help children with problems similar to Tristan's. "I think Tristan would be really pleased," Jean Allen said. Tristan's Quest has supplied books and other materials for teachers of behaviorally or emotionally disturbed, or BED, students in Guilford County Schools.It has created a network of sorts for the county's BED teachers by hosting dinners four times a year. And it has created enrichment programs, such as photography projects and field trips. "They play a huge role in the education of kids with behavioral or emotional problems," said Tina Diffenbacher, BED teacher at Alamance Elementary School. Tristan's Quest has also trained teachers to use therapeutic restraint on children physically out of control, Diffenbacher said. Allen's quest has been a personal one. She has been the adoptive parent of five special-needs children and holds a Ph.D. in child development from the University of North Carolina at Greensboro. At first, she ran the foundation out of her house. Now, it occupies a building on Battleground Avenue. She has hired a full-time staffer, Debbie York, and uses interns from local colleges and volunteers. She has also created two clubs for BED students who are taught the concepts of caring and giving. One project for the clubs involved the anonymous pasting of smiley-face stickers throughout their school. "Most BED kids don't get to join a club," Allen said. "They're just not accepted. Often, these children are written off as not being interested in doing something kind." She also organized an ambitious photography project for students, providing cameras, expert advice from a photographer, a field trip for shooting photos and even a gallery exhibit of their work. "They've brought an incredible positiveness to the kids," said Jan Meier, BED teacher at Peck. "The best day was when we took the pictures. Every kid had an adult with them, and our kids crave that kind of attention."
"Tristan's Quest." WFMY-TV, 29 Dec. 2002.
A Guilford County grand jury charged a former Greensboro Charter psychiatric hospital worker with involuntary manslaughter Monday in the asphyxiation death of 16-year-old Tristan Sovern on March 4.
The grand jury accused Megan Duffany, one of seven Charter mental health workers and nurses who restrained the youth, of causing Sovern's death by placing a bed sheet and towel over his mouth and nose. Guilford District Attorney Jim Kimel said he probably will seek indictments against the six other mental health workers and nurses who struggled with Sovern as they tried to move the troubled teenager to a more secluded room.
Those additional indictments could come within 30 days, Kimel said.
At a news conference Monday afternoon, Kimel said he moved against Duffany first because she placed and held the towel and folded bed sheet over Sovern's head. "We wanted to see what the grand jurors would do with this one before moving to the others," Kimel said. "We are evaluating the others now."
Duffany, who worked for Charter for about a year and a half, could not be reached for comment Monday. Her Greensboro attorney, David Smith, declined to comment on the indictment.
Tristan Sovern's adoptive parents, Jean and Richard Allen of Greensboro, could not be contacted Monday. Telephone messages left at their home were unanswered.
The Allens have indicated they plan to sue Charter. Richard Allen said the state investigation and the autopsy show their son "was smothered."
The official cause of Sovern's death was listed as asphyxiation due to external airway obstruction. At the time of his death, Charter staffers held Sovern face-down on the floor of his room with his arms crossed beneath him and a towel and bed sheet held over his mouth, according to state investigators.
The private, for-profit Charter hospital, part of the nation's largest psychiatric hospital chain, reacted to the indictment with what a spokeswoman described as "extreme disappointment."
"The involuntary manslaughter charges are unwarranted and will only serve to have a chilling and detrimental effect on all other professional care-givers who are called upon to deal with deeply disturbed and violent patients," said Ann Gainey, hospital spokeswoman.
Sovern's death was tragic, Gainey said. "But those who risked severe injury in an attempt to restrain and subdue him should not be the subject of criminal proceedings. All those involved did the very best they could to bring about a more positive outcome in extremely difficult circumstances."
Kimel said Duffany will be allowed to surrender to authorities within the next few days. He said she will be asked, through attorney Smith, to appear before a state magistrate, who will set bail and a trial date. Duffany's first appearance in court, for administrative purposes, is scheduled for July 31.
If Duffany is convicted, the maximum amount of prison time she could receive would be four years and one month.
Duffany and four of the other Charter workers who restrained Sovern were fired by Charter as part of an agreement with the state that allowed the hospital to retain its license to operate in North Carolina. Charter also agreed to replace its director of nursing and to require its chief executive officer, Nancy Reaves, to take a leave of absence and require her to undergo training and re-evaluation at another Charter facility.
Kimel declined to say whether he might seek indictments against Charter administrators who may have known about or authorized the practice of wrapping a patient's head with a towel and bed sheet as a means of restraint.
Investigators said, in a lengthy report after Sovern's death, that Charter mental health staffers told them that mouth coverings were used at least 80 percent of the time in the hospital's adolescent wing when staffers transported problem youths to a seclusion room.
Kimel said he sought an involuntary manslaughter indictment against Duffany, rather than a more serious charge, because there was no evidence that malice was involved in the Sovern's death. A charge such as voluntary manslaughter or murder "would not have been appropriate," he said.
As it stands, the state must prove that Duffany acted with criminal negligence to such a degree that her "gross recklessness or carelessness amounted to a heedless indifference to the safety and rights" of Sovern, Kimel said.
Most involuntary manslaughter cases involve a weapon or an automobile, not a towel and a bed sheet, Kimel said.
Nevertheless, the towel and bed sheet were sufficient to prevent Sovern from breathing and to cause his death, according to local and state investigators.
Sovern, who had a history of emotional problems, was admitted to Charter on Feb. 26 severely depressed and talking of suicide. His parents said he also had a cold and had difficulty breathing through his nose.
On the evening of March 4, Charter staffers became concerned when Sovern began crying in group therapy. Their concern was amplified when another patient told them that Sovern had a fish hook and intended to harm himself.
Charter workers decided to move him to a "seclusion room" where he could be more closely monitored. A report of the incident by investigators with the state Department of Health and Human Services shows that staffers placed Sovern on the floor of his room in a "therapeutic" hold with his feet and arms secured.
The report states that Duffany told investigators she placed a small towel over Sovern's mouth to prevent him from biting. A nurse then handed her a "larger and longer towel" which she placed over Sovern's face. But that was not large enough, Duffany said, and she asked for something larger. A nursing supervisor then handed her a folded sheet, which Duffany placed over the towel, the report states.
According to the state report, Duffany told investigators that Sovern "kept screaming and hollering, 'I can't breathe,' and 'You're choking me.'"
Duffany told investigators that the folded sheet and towel remained over Sovern's mouth as the workers carried Sovern to the seclusion room. Only when he reached that room were the sheet and towel removed. But it was too late, the report states. Sovern had stopped breathing.
Staff writer Michele D. Snipe contributed to this report.
Swofford, Stan. "The District Attorney says he Plans to Seek Indictments Against the Other Employees who Restrained a Greensboro Teen Before his Death." News and Record, 6 June 1998.
*****
DA Ends Probe of Charter Patients Death\No Further Charges Will be Filed in the Investigation into Tristan Sovern's Death at a Greensboro Psychiatric Facility
Prosecutors have closed the investigation into Tristan Sovern's 1998 death at Charter Behavioral Health Systems, Guilford County District Attorney Jim Kimel said Friday.
The district attorney's office decided not to pursue additional criminal charges against other Charter employees after a jury found a Greensboro health care worker not guilty last month in Sovern's death.Sovern, 16, died after Megan Duffany and six other health care workers at the Greensboro Charter hospital restrained the teen by placing a bed sheet and towel over his mouth and nose on March 4, 1998.
Duffany, 23, was the first health care worker in the state to be charged with involuntary manslaughter in the death of a patient. She was working as a mental health aide at Charter at the time of Sovern's death.
The medical examiner ruled that Sovern, who had a bad cold at the time, died from asphyxiation by an external airway blockage. Duffany's attorneys argued during her trial that Sovern died of other causes.
Prosecutors sought an indictment against Duffany because she placed and held the towel and folded bed sheet over Sovern's head, Kimel said.
But prosecutors decided that if a jury wouldn't find her guilty of Sovern's death, then they would have an even more difficult time proving the other workers were responsible for his death, Kimel said.
"We felt we could not prove it beyond a reasonable doubt," Kimel said. "It could be that jurors had some doubt that the asphyxiation was the proximate cause of death."
To prove involuntary manslaughter in Sovern's death, prosecutors had to prove that Duffany acted with criminal negligence to such a degree that her gross recklessness or carelessness amounted to a heedless indifference to Sovern's safety and rights.
Charter officials would say little Friday about the district attorney's decision.
"We're very pleased with the district attorney's decision not to pursue further charges," said Nancy Reaves, CEO of Charter. Reaves would not comment further.
Charter's 90 mental health facilities across the country were the subject of a "60 Minutes II" investigation that aired during Duffany's trial.
The TV report pointed out that Charter admits about 120,000 patients each year, half of them juveniles, and last year took in $730 million, half of that taxpayer money in the form of Medicare or Medicaid payments.
CBS investigators found public records showing that Sovern had been the third patient in four months to die while being restrained in a Charter hospital. "60 Minutes II" said it had documented 32 patients who died while being restrained in mental health facilities other than Charter's.
CBS said its investigation found untrained staffs, unsafe wards and patients getting hurt inside Charter hospitals.
Sovern's parents checked him into Charter psychiatric hospital in Greensboro because he was suffering from depression and suicidal thoughts. Sovern had a history of emotional disorders and behavioral problems. According to testimony from Charter workers, Sovern threatened to rape teenage girls and kill staffers, and he said his goal was to commit suicide.
Since his death, Jean Allen, Sovern's adoptive mother, has become a vocal advocate for reforms in mental health and mental retardation facilities.
Although the district attorney's office wasn't able to gain a conviction in Sovern's death, Kimel described the process as a positive process that raised awareness of the use of restraints in mental facilities.
"I think it raised the public's awareness of what was going on there," Kimel said. "I think it was a deterrent effect in that it shows prosecutors aren't afraid to bring criminal charges."
Bolstad, Erika. "DA Ends Probe of Charter Patients Death\No Further Charges Will be Filed in the Investigation into Tristan Sovern's Death at a Greensboro Psychiatric Facility." News and Record, 28 May 1999.
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CBS Exposé Blurs Treatment, Privacy and Ethics Issues Network Risks Criminal, Civil Charges To Air Story
Even the threat of criminal prosecution didn't dissuade CBS from broadcasting a "60 Minutes II" investigation called "Unsafe Haven," an hour-long report that chronicled alleged abuses committed "in more than 20 Charter Hospitals." A last-minute effort by Charter Behavioral Health Systems, the nation's largest provider of inpatient mental health services, to obtain an injunction against the April airing failed, but not without the judge in the case taking some legal swipes at CBS.
U.S. District Judge Graham C. Mullen told lawyers in a North Carolina federal court that he could not stop the broadcast because "the Supreme Court has elevated press powers to a point that prior restraint is all but impossible even where, as in this case, it appears that the press may well have set out to and committed a federal crime in order to obtain the information." Saying that he was "very sympathetic with [Charter's] position," the judge added that he would ask the U.S. attorney to investigate whether any felonies were committed by CBS. "Certainly the press is not free to commit crime nor to send people out on its behalf to commit crime," he said.
Meanwhile, officials at Charter said that they were "considering all of their legal options," an indication that the company may take civil action against CBS and others associated with the broadcast.
The most controversial aspect of the program was footage obtained by Terrance Johnson, a licensed, master's degree-level social worker, who spent eight weeks working at a lower level job at Charter Pines, a facility in Greensboro, N.C. At CBS' behest, Johnson taped patients when he thought he saw "evidence of wrongdoing or dangerous conditions," using a video camera hidden in his glasses and operated from a switch in his pants pocket.
Sequences revealed workers altering vital signs on medical records, using psychiatric terms they did not understand, and describing patients and making chart entries to substantiate insurance payments rather than to accurately record medical conditions. In segments on seclusion and restraint, a running commentary by a committee for the American Psychiatric Association and other experts confirmed that apparently untrained Charter staff used dangerous and unnecessary efforts to gain control over children. A psychiatrist is shown visiting the facility late at night after the children have gone to sleep, pausing long enough to chart a visit.
In all, CBS charged that, after a year-long investigation, they uncovered "unsafe conditions, deaths and coverups" at Charter hospitals "from Massachusetts to California." Profiling the case of Tristan Sovern, a 16-year-old who died during a restraint and seclusion episode, the program reported allegations that the teen died as the result of asphyxiation when a staff member wrapped a towel and sheet around his face. Coincidentally, a week after the broadcast, Megan Duffany, 23, the hospital worker charged with manslaughter after the death, was acquitted by a jury in Greensboro, N.C.
In the aftermath of the CBS report Charter officials called the program "sensationalized, and filled with half-truths, innuendo and some gross inaccuracies." In a telephone interview with Psychiatric Times following the broadcast, Mike French, Charter president and CEO, and Gary Henschen, M.D., senior vice president and chief medical officer, said that while the undercover taping exposed some deficiencies the company would need to investigate, it also posed a severe threat to patient privacy, and failed to record the full context of the situations involving their patients. Denying the program had any adverse impact on Charter, they said that the negative depictions could nevertheless deter some individuals from seeking mental health care, particularly at a time when school shootings have heightened public concerns about adolescent growth and development.
"Our concern was not about Charter Behavioral Health Systems, but about our patients and their confidentiality," French said. "When we became aware they had engaged a hidden camera in our facility and had engaged one of our former employees to use a hidden camera we were incensed...The whole basis of psychiatric and mental health services is patient confidentiality, and to have an organization that would potentially breach that patient confidentiality was significant to us and to the industry."
All of Charter's facilities are accredited by the Joint Commission on Accreditation of Health Care Organizations, 30% of them with commendation, said French. "To have a story come out that would insinuate because of one isolated situation that 91 hospitals aren't the highest quality-a fact that has been demonstrated by review after review, patient after patient-is very disturbing."
Calling their corporate compliance and internal audit programs the best in the industry, Henschen said that "the second most disturbing thing" was that Johnson failed to invoke the very procedures Charter developed to deal with problems on the units.
"We receive corporate compliance calls on a regular basis, and we take every one seriously and we review every one," said Henschen. "I do not know the circumstances of Johnson's relationship with CBS News...all I know is that if he observed those things, why didn't he avail himself of the corporate compliance program, or go to a supervisor? There has never been an employee reprimanded for using the corporate compliance line." Henschen did acknowledge that the company was investigating why Johnson didn't "appear to receive training in a timely fashion," but added that the system is also based on "clinicians reporting such violations."
None of the tapes were made available to Charter prior to the broadcast, a sticking point for French who said they would have offered to respond in an "open and direct" way. But CBS was not hesitant to show the tapes to a covey of government officials and others, establishing the credibility of the charges leveled by the network by using their highly critical commentary during the broadcast. One of those commentators was David Fassler, M.D., a child and adolescent psychiatrist from New Hampshire, who is the chair of the APA council on children, adolescents and their families.
In an ironic twist, days before the broadcast, the APA's medical director Steven Mirin, M.D., in a joint statement with the National Association of Psychiatric Health Systems, criticized CBS' use of hidden camera footage. "Our patients expect, deserve, and are guaranteed by law the right to confidentiality when seeking and receiving help for psychiatric and addictive disorders," he said. "Any violation of confidentiality is serious, potentially damaging to the fabric of patient care, and should be dealt with to the full extent of the law."
Fassler said he was one of dozens of psychiatrists at both the APA and the American Academy of Child & Adolescent Psychiatry that CBS talked to while preparing its report. "My goal through participating was to try to convey the message that there are kids with serious psychiatric problems and that at times some of these kids will need to be in the hospital," Fassler said. "During those hospitalizations the use of seclusion and restraint may be appropriate and clinically indicated." Conceding that this message was not as clearly expressed as he would have preferred, Fassler added that, "it's also important to know that I said many things in the course of my interview and discussions with '60 Minutes [II]' that may not have been shown in the final program."
Nevertheless, Fassler does not regret his involvement. "I hope and believe that my involvement with the show enhanced the clinical sensitivity and awareness of the producers, and although I had no control over the final decisions or what parts of my interview were utilized, overall the program contributed to the debate on this important topic."
Although he wouldn't comment directly on Fassler's involvement until "I've talked to him about it," Charter's Henschen questioned whether the appearance on the program violated ethical standards. "I wonder if he knew the circumstances under which this tape was obtained-it was obtained illegally, violating both federal and state law. I also wonder how Fassler explains making comments about patients he has never examined...If I were asked to do something like that, I would want to know the circumstances under which such a tape was obtained, and whether it was in violation of APA code of ethics on confidentiality, and [of] federal and state law."
Nada Stotland, M.D., chair of the APA's joint commission on public affairs, said she saw no conflict between the organization's statement on confidentiality and Fassler's participation. "I don't think the APA gave its imprimatur to the show or to the kinds of care [depicted]. A member of the APA lent some expertise and made it clear to the public that our experts in the area did not condone these practices, and found them beyond the pale," she said.
"I also have deep concerns about programs like that feeding into the age-old fear that people have of seeking psychiatric care. That is a great shame."
Clarke Ross, the deputy director of the National Alliance for the Mentally Ill (NAMI), an organization at the forefront of lobbying Congress to regulate the use of restraint and seclusion, said the CBS report, "was helpful in that it affirmed in a graphic way practices that many consumers and family members of NAMI have experienced."
Meanwhile, he did not believe the CBS expos would affect mental health policy negatively.
"We are advocating for more appropriate legally based monitoring and reporting systems so that the press does not have to resort to these kinds of interventions," said Ross. In addition, NAMI is advocating that policy-makers fill the "treatment gap" in order to assure that programs that actually work are reproduced nationally, while those that don't are eliminated.
"CBS Exposé Blurs Treatment, Privacy and Ethics Issues Network Risks Criminal, Civil Charges To Air Story." Psychiatric Times, 1 June 1999.
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Tristan's Quest
Jean and Richard Allen have turned the death of their adopted son into a way to help children like him who have emotional or behavioral problems. Tristan Sovern, an emotionally challenged 16-year-old, suffocated in 1998 while being restrained by workers at Greensboro's Charter Behavioral Health System Hospital. Tristan's case drew widespread attention and national investigations were launched into child-restraint deaths in several states. One Charter worker was charged with manslaughter but acquitted at trial. Charter subsequently closed its local hospital and a number of others across the nation. The Allens settled a lawsuit with Charter for an undisclosed amount of money and used the cash to start Tristan's Quest, a foundation to help children with problems similar to Tristan's. "I think Tristan would be really pleased," Jean Allen said. Tristan's Quest has supplied books and other materials for teachers of behaviorally or emotionally disturbed, or BED, students in Guilford County Schools.It has created a network of sorts for the county's BED teachers by hosting dinners four times a year. And it has created enrichment programs, such as photography projects and field trips. "They play a huge role in the education of kids with behavioral or emotional problems," said Tina Diffenbacher, BED teacher at Alamance Elementary School. Tristan's Quest has also trained teachers to use therapeutic restraint on children physically out of control, Diffenbacher said. Allen's quest has been a personal one. She has been the adoptive parent of five special-needs children and holds a Ph.D. in child development from the University of North Carolina at Greensboro. At first, she ran the foundation out of her house. Now, it occupies a building on Battleground Avenue. She has hired a full-time staffer, Debbie York, and uses interns from local colleges and volunteers. She has also created two clubs for BED students who are taught the concepts of caring and giving. One project for the clubs involved the anonymous pasting of smiley-face stickers throughout their school. "Most BED kids don't get to join a club," Allen said. "They're just not accepted. Often, these children are written off as not being interested in doing something kind." She also organized an ambitious photography project for students, providing cameras, expert advice from a photographer, a field trip for shooting photos and even a gallery exhibit of their work. "They've brought an incredible positiveness to the kids," said Jan Meier, BED teacher at Peck. "The best day was when we took the pictures. Every kid had an adult with them, and our kids crave that kind of attention."
"Tristan's Quest." WFMY-TV, 29 Dec. 2002.
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