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

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.