CHARLESTON – Kanawha Circuit Judge Louis Bloom has taken charge of the rights of patients at Mildred Bateman state mental hospital in Huntington with full support from the West Virginia Supreme Court of Appeals.

The Justices bestowed their power on Bloom in a Feb. 6 opinion directing him to clean out "Dickensian squalor" at the hospital.

The Justices borrowed the quote from a 28-year-old decision because Bloom borrowed his authority from that decision when he reopened the case last August.

Now he can proceed with an evidentiary hearing on potential violations of state code.

Attorney General Darrell McGraw held Bloom up for months by complaining that he encroached on executive and legislative branches.

McGraw claimed the Department of Health and Human Resources could protect rights of residents, but a report by hospital ombudsman David Sudbeck showed otherwise.

"In general, the portrait that emerges from the ombudsman's report is that of a hospital that is overcrowded with patients, most of whom are frustrated by living on top of each other, being denied privacy and not having daily access to basic grooming needs," the Justices wrote in an unsigned opinion.

The department didn't show that vestiges of past violations have ceased, they wrote.

Crowding diminishes privacy, denies access to private bathrooms, and prevents daily showering and shaving, they wrote.

Patients sustain injuries tripping over cots where three sleep in a room, they wrote.

Nursing home patients mix with dementia patients, they wrote.

They found that supervisors "freeze" workers by requiring back to back shifts and supervisors write reprimands for those who refuse the second shift.

They found that 90-day temporary workers deal with violent and aggressive patients.

"One of these 90-day temporary employees was fired for drinking on the job and the regular staff generally does not feel comfortable working with them," they wrote.

The case before Bloom began in 1981, when patients petitioned for relief and won it.

Former Justice Richard Neely wrote that the case focused attention on "Dickensian squalor of unconscionable magnitudes" in West Virginia's mental institutions.

Squalor means foul and unclean from neglect or unsanitary conditions.

The Justices in 1981 prescribed no remedy, because legislators in 1977 had set guidelines for operation of mental health facilities.

"Consequently, we are not asked to impose a new constitutional standard upon a reluctant and unwilling state; rather, we are asked only to order the executive branch to fulfill its obligation under clear and unambiguous statutory provisions," Neely wrote.

The Justices directed Kanawha Circuit Court to monitor the case consistent with the guidelines.

One guideline required "a system of custody and treatment which will reflect the competent application of current, available scientific knowledge."

Another obligated the state "to provide the resources necessary to accord inmates of mental institutions the rights which the state has granted them."

The Department of Health and Human Resources approved a plan in 1983.

In 2002, Kanawha Circuit Court removed the case from its active docket. Monitoring passed to Secretary Paul Nussbaum, who hired an ombudsman.

Current ombudsman Sudbeck received so many grievances last spring that he submitted a report on over bedding with recommendations last July.

Deputy attorney general Charlene Vaughan sent Sudbeck a rejection letter on Aug. 27, expressing gratitude for identifying problems and underscoring their urgency.

Bloom held a hearing the next day about reopening the case. He found no dispute about over bedding and "no remedy in sight."

He reopened the case so he could conduct an evidentiary hearing on over bedding and a separate hearing on traumatic brain injury services.

The department petitioned on Sept. 19 to stop Bloom.

The Justices got Bloom moving again, holding that the department failed to show how he encroached on the executive branch.

"Specifically, the circuit court has the power to ensure that patients are receiving treatment guaranteed to them," they wrote.

They found no encroachment on the Legislature either. Like the 1981 Court, they wrote that legislators recognized their responsibility in 1977.

"This reasoning applies to the present case," they wrote.

Bloom didn't halt a project or control a function reserved to other branches, they wrote.

"Rather, the proposed evidentiary hearing has come about for the same reason that a court monitor was put in place at the beginning of this case in 1981, because of the possible violations of West Virginia Code," they wrote.

Jennifer Wagner and Daniel Hedges of Mountain State Justice in Charleston represented patients.

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