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 exposé 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.