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7th Circuit won't stay ruling, despite likely SCOTUS appeal

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The 7th Circuit Court of Appeals won’t stay its ruling that allows an independent state agency access to records about mentally ill inmates’ treatment, even though the Indiana government agency being sued is appealing to the Supreme Court of the United States.

In a four-page order issued Wednesday in the case of Indiana Protection and Advocacy Services v. Indiana Family and Social Services Administration, et al., No. 08-3183, Judge David F. Hamilton explained why the full appellate court wouldn’t backtrack from its April 22 ruling on the case out of the Southern District of Indiana.

In April, Judge Hamilton wrote a 63-page decision for an en banc court that found Indiana Protection and Advocacy Services has the right to sue and its case shouldn’t be dismissed. Affirming U.S. Judge Larry McKinney’s decision, the appeals court held the 11th Amendment does not bar plaintiff IPAS from seeking injunctive and declaratory relief against state officials because the federal Protection and Advocacy for Individuals with Mental Illness Act of 1986 provides that cause of action, and the plaintiff is entitled to access peer review records of treatment of covered mentally ill patients.

IPAS, a state-created agency aimed at protecting and advocating for the rights of those with disabilities, filed a lawsuit in late 2006 against Family and Social Services Administration, LaRue Carter Memorial Hospital, and several state officials in order to gain records on a mentally disabled adult patient who died while at LaRue Carter to find out if she was a victim of abuse. Judge McKinney had decided the defendants had to hand over the records because the victim was an adult and her parents weren't appointed her legal guardians, but FSSA argued that releasing the records would violate the victim's parents' privacy.

The 7th Circuit mandated that IPAS have access to the records, but the defendants in early May filed a motion to stay that mandate while it appealed to the nation’s highest court.

Standing by the 7th Circuit’s previous ruling, Judge Hamilton said FSSA’s plan to seek certiorari before the SCOTUS isn’t enough to stay the order and that it won’t be irreparably harmed by the access. The judges en banc agreed to deny the motion, with Judge Hamilton writing that there is no Circuit split nationally on two of the three issues being appealed – the plaintiff’s right to sue under the act and access to peer review records. Another certiorari request is pending on a 4th Circuit case involving the 11th Amendment issue, the court noted.

“In sum, the balance weighs against granting a stay of the mandate even if there was a reasonable possibility that certiorari may be granted,” Judge Hamilton wrote. “The disclosure of information would be to an independent government agency with its own legal obligations to maintain the confidentiality of the documents in question. The plaintiffs had to wait nearly four years after Patient 1’s death for access to the peer review documents, stymying its ability to effectively protect and advocate on behalf of the other individuals with mental illness. There will be no invasion of Patient 1’s privacy, for Patient 1 is deceased. Whatever interests the care giving entities or doctors and other individual care givers might have in the privacy of information about their treatment of Patient 1 will be adequately protected by the plaintiff’s own legal obligations of confidentiality.”

The court determined it would be adequate to issue an order granting plaintiff access to the records, but reserving the right to order the plaintiff to return all copies and derivative notes in case justices grant cert and reverse the 7th Circuit ruling.

The Indiana Attorney General’s Office is representing FSSA, and while it intends to file an appeal with the SCOTUS, the appellate court docket shows that hasn’t been done yet. Attorney General spokesman Bryan Corbin said the office on Thursday filed in the Supreme Court a 103-page application for immediate recall and stay of mandate, pending certiorari to the high court.
 

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  1. Excellent initiative on the part of the AG. Thankfully someone takes action against predators taking advantage of people who have already been through the wringer. Well done!

  2. Conour will never turn these funds over to his defrauded clients. He tearfully told the court, and his daughters dutifully pledged in interviews, that his first priority is to repay every dime of the money he stole from his clients. Judge Young bought it, much to the chagrin of Conour’s victims. Why would Conour need the $2,262 anyway? Taxpayers are now supporting him, paying for his housing, utilities, food, healthcare, and clothing. If Conour puts the money anywhere but in the restitution fund, he’s proved, once again, what a con artist he continues to be and that he has never had any intention of repaying his clients. Judge Young will be proven wrong... again; Conour has no remorse and the Judge is one of the many conned.

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