Those people who, like me, have had the misfortune of having to represent themselves without a lawyer (pro se) in court, can tell by scanning through the new NYS bill purporting to ‘protect’ the “people with special needs” that it is simply more bureaucracy on top of old bureaucracy. Actually, the new bill makes it MORE DIFFICULT for these “people with special needs” to protect themselves. This NYS senate bill 7400 is basically a bill of rights FOR THE PERPETRATOR.
Again, I’m not a lawyer or anything of the sort, I’m simply expressing my opinions. But don’t take them as correct; go ahead, read the new law! That’s a challenge, my friends, literally. It’s a challenge because the bill will challenge your ulcers, so to speak.
THE MOTHER OF ALL LOOPHOLES
Loopholes are the bread and butter of those who lobby our politicians. Lobbyists either draft the bills they want for their professional gains and give them to our lawmakers to sign, or lobby to draft loopholes in the bill if it is being created to control them. Well, you tell me if this is not like the mother-of-all-loopholes:
there shall be no monetary liability on the part of, and no cause of action for damages shall arise against, any person on account of participating in good faith and with reasonable care in the communication of information in the possession of such person to an incident management committee, or on account of any recommendation or evaluation regarding the conduct or practices of any agent of a facility or provider agency.
The first loophole is in these words: good faith and reasonable care. Do you have any idea of how DIFFICULT it is for advocates (forget for the pro se!) to prove that a perpetrator, in any situation, but more so in mental health systems, acted NOT with good faith and such perpetrator was ‘unreasonable’ in his/her professional behavior? The opposite of the legal concepts of good faith and reasonable care are ‘malice‘ and ”negligence‘. Well, good luck in trying to prove that a provider’s actions of ignoring an ongoing abuse in his/her facility was nothing but ‘unreasonable care’.
According to this bill, to convince the judge to accept to take a look at your complain, you first must PROVE to the judge that the provider was reckless and negligent. Otherwise, the case will be thrown out because this law states that you have NO CAUSE OF ACTION against a provider whose ‘errors’ are expected as part of the risks of the profession. In other words, instead of having a case to prove that there was negligence, you must prove that there was negligence to have the case heard in the first place.
The second loophole is in the fact that if the provider ‘misinforms’ the ‘investigating committee’ you have to prove that it was intentional. In other words, this bill tells you that from the outset you have no cause of action for damages, and that it is YOUR duty to prove that the information that should have been in a report but isn’t (or was misleading), was intentionally unreported.
I understand that people should be ‘innocent until proven guilty’, but the problem with this bill is that it TAKES AWAY YOUR RIGHT TO TRY TO PROVE YOUR CASE. You are simply being barred from court. Before this law, you could go and try to prove that there was negligence. Now you have to prove that you have a right to try to prove that you have a case. And the parts about ‘no cause of action for damages’ and ‘no monetary liability’ guarantees that hardly any private lawyer will take your case even if s/he can prove real damages.
Yeap, the new bill is protecting someone who is not you. Guess whom it is protecting?