(Cross-posted from The COFAR Blog)
More than a year ago, we asked for an independent clinical evaluation of a now 47-year-old intellectually disabled man, who has not been permitted to visit his parents in their Sherborn home for the past 19 years because he has been deemed to be a danger to the community.
Finally, two state legislators are asking for the same independent evaluation of Andy McDonald. In a letter sent to the Department of Developmental Services on February 25, both Senator Richard Ross and Representative David Linsky further asked that the evaluation take into account the views of Andy’s father, Stan, and his step-mother, Ellen, who have been fighting for years for supervised visits home for him.
Not only is Andy prohibited from visiting the home he grew up in; Stan and Ellen are not even permitted to discuss the topic with him. Under the rules imposed by his DDS-funded group home, Andy, who has frequently expressed a longing to see his home again, is forbidden from mentioning his desire to do so. It seems like a violation of free speech; but then again, when you are under the control of both the DDS and probate court system, your right to self-determination becomes very limited.
That loss of self-determination may be appropriate in some cases; but the McDonald case shows how dysfunctional the system can get. The case is replete with questions about the validity of previous clinical evaluations of Andy and about a 2006 probate court ruling, which concluded that Andy was sexually dangerous and should never be allowed to return home.
In the 2006 ruling in which he denied Stan’s bid for guardianship of Andy, Middlesex County Probate Court Judge Edward Rockett stated that Andy had been arrested in 1990 for sexual assaults of three young girls who lived across the street in Sherborn. That was not true, however.
Andy was arrested in May 1990 for threatening an unidentified person during a telephone call, according to the district court record. The nature of the threats was not disclosed. In July of that year, he was arrested for disturbing the peace in downtown Sherborn and with assault for punching his stepmother, according to a police report. Both Stan and Ellen say the punch was accidental and occurred while Ellen was driving Andy to the police station after he was accused of disturbing the peace. “He was flailing his arms, not threatening me,” Ellen said in an email this week, “and his fist landed on me. It didn’t hurt me. It made a red mark that faded shortly after.”
There is no indication in the police reports that Andy ever sexually assaulted anyone.
In his ruling, Rockett also cited a statement by the clinical director of Andy’s group home that Andy had told him he had had sexual fantasies about children. But Rockett acknowledged in his ruling that there was testimony in the court case that Andy “will always say what he thinks other people want to hear. This causes his statements to be very inconsistent.”
As we noted in a previous post about this case, Andy was committed to McLean Hospital in Belmont immediately after the July 1990 threatening and disturbing-the-peace incidents. In the years following, he was subjected to a series of inappropriate residential placements and treatment, in many cases because a series of court-appointed guardians, state agencies, and providers made the wrong decisions regarding his care.
Most of the decisions about placement and treatment of Andy were made without the consent of Stan, who had agreed to the appointment of a guardian for Andy in 1986 as part of the settlement of a longstanding custody battle over him with his former wife. Andy has had a series of court-appointed guardians since, and Stan has never been able to regain that guardianship. His attempts in probate court to do so have been opposed by DDS.
Andy has not exhibited any significant behavioral problems in a decade and has been taken on community outings to many places other than his home without any behavioral incidents, according to Stan and to notations in Andy’s clinical care plan. But that record of good behavior does not appear to have changed the position of either the probate court, DDS, or Andy’s current court-appointed guardian that he must never be allowed to go back to his hometown.
That ban on visits to Andy’s boyhood home combined with his group home’s policy that he must not even discuss his desire to visit his parents there amounts to psychological abuse, Stan maintains. Moreover, the situation raises concerns in Stan’s and Ellen’s minds about Andy’s future and what will happen when they are no longer able to travel from Sherborn to visit him in his group home in Northborough. Stan is 79 years old.
In 2000, Ronald Ebert, a psychologist, recommended that the staff of Andy’s group home try a “trial visit” to the Sherborn Inn to hear Stan, an acclaimed jazz musician, play in his band if it could be demonstrated that the persons Andy was accused in 1990 of threatening no longer lived in town. In fact, Stan says, those persons had moved away as of that time. “If such visits can be managed successfully, there is no reason why they could not be built into his visit schedule…,” Ebert wrote. But Ebert’s recommendation was never heeded.
As is the case with he parents of Sara Duzan, who were denied all contact with their daughter for several months, Stan and Ellen McDonald have found themselves trapped in a Twilight-Zone-like situation imposed on them by the state’s dysfunctional human services and probate court system. It’s long past time to bring in someone with a truly independent view to take a new look at this case.
How can fair-minded, reasonable people anywhere believe that this is ok? How is it that the DDS gets to be judge and jury here?
DDS needs to be held accountable for violating these people’s civil rights. It is unconscionable that any Dept. should have this much power and to have this go on for decades is more than abusive.
but a combination of DDS and the probate court. Together, they make a system that appears to have little accountability and is not responsive to the wishes and needs of the people it is supposed to help.
What is wrong with these people?
For one thing, I bet if you look more closely you’ll find that no one at DDS has the clinical qualifications to make these types of decisions.
I do not have any detailed knowledge of this situation, however I and others should be very uncomfortable with an organization, such as COFAR, discussing in a blog, matters that are the subject of Court proceedings and confidentiality regulations. DDS cannot disclose information of a confidential manner and thus cannot and should not respond. COFAR presumes to know everyone’s perspective and motivation always suspecting the worst of the State. We have a Court process with appeals procedures to protect the rights of people; however COFAR prefers to politicize matters for its’ own reasons. This continual approach by COFAR is disturbing. While I have the greatest respect for Senator Ross and Rep. Linsky, the Court is the appropriate venue for reviewing the matters at hand in this matter and others that have landed in that jurisdiction.
Despite the treasure trove of sick leave bills filled everywhere, legislation should not just affect one person. If you can prove that this individual is affected by a systematic failure, then you can offer changes to make the system better, but you can’t simply exempt one person from the system.
So my question to you is, what are the systematic problems that led to this issue, and what laws can be implemented to make the system fairer.
Also, has this problem happened with multiple people, or is it an isolated incident?
We will be writing about H 1459, for instance, which would require family members to be given greater consideration as suitable guardians of developmentally disabled persons.
We have written about a handful of these cases and the McDonald case is one of them. The overriding problem is the unresponsiveness of the system to the wishes and needs of individuals and guardians. Hard to explain it all in a comment. Check out our blogsite I think you will see many examples there of what I’m referring to.
The problems you specified here was a misunderstanding by the probate court as to the specifics of the case. How would more heavily weighing concerns family members make sure the court has an accurate understanding of the case?
I worry there might be a case where the family does not have the best interests of the client at heart, and giving their testimony more weight might also conflict with the truth.
of a developmentally disabled individual at heart; but our experience has been that when families seek to get involved, they overwhelmingly do have the best interests of their loved ones at heart and know best what their needs are. What we have seen, however, is that despite their intimate knowledge of their loved ones’ needs, family members are too-often discounted in the DDS and probate court systems, in particular. There is a we-know-best tendency among the “experts,” who tend to view family involvement as meddling. The Pelletier case, was a well-publicizied example of this.
Justina Pelletier is not developmentally disabled, but the dynamics of her case were similar to the McDonald case and a number of other cases that we’ve monitored. In the case of care of the developmentally disabled, the federal Developmental Disabilities and Bill of Rights Act states that family members should be considered the “primary decision makers.” That federal requirement seems to be ignored all too often by the DDS and probate court system in Massachusetts.
How exactly are you proposing to give families concerns extra weight?
This case is just one illustration of the abject failure of the system that should be protecting the rights of the disabled and their families and guardians. But instead, the DDS acts in dictatorial fashion.
It is telling that what I see one poster defending is the desire of DDS to do their business behind the curtain in secrecy. This is not a privacy issue. And, it is not COFAR, as you would have others believe, but the DDS that made it public. Even when there is no reason to continue this secrecy, they still have nothing to say.
Once again, COFAR is attacked for reporting on but one failure of the system—a failure you refuse to acknowledge. What is troubling is that the court sometimes acts with a “go along” mentality. And the Justina Pelletier case is evidence of the court’s involvement.
There have been other times when it would have been easy for some of these posters or “advocates” to support the rights of the disabled, but instead they had nothing to say, no comment.
Our character is defined not only by our actions, but often by our failure to act.