The decision by administrators at Dorothea Dix Hospital last week to stop a tour of the facility by Rep. Verla Insko, the chairwoman of the state's mental health oversight committee, may have run afoul of a 161-year-old state law.
When legislators voted to create the state's first mental asylum in January 1849, the law included a provision that "The Governor, Judges of the Courts and members of the General Assembly shall be ex officio visitors of the State Hospital." That would mean that legislators such as Insko have a legal right to visit the facility.
But the issue is far from simple, said Gerry Cohen, the director of bill drafting at the state legislature. In 1985, a Mental Health Study Commission looked at the issue of legislators going into mental health facilities and reached a compromise. The compromise protected the right of legislators to visit mental health facilities, but made sure members could not review case files.
"The members of the General Assembly are ex officio visitors of all State facilities, provided that the common law right of visitation of a State facility is abrogated to the extent that it does not include the right to access to confidential information," says the newer law. "This right of access is only as granted by statute."
Therefore, Insko has a right to inspect the hospital, however administrators can place restrictions on her access to protect patient privacy, Cohen said.
But that's state law. Federal law, which supersedes all state statutes, appears to grant further rights to legislators to inspect state facilities with which they are charged for overseeing.
In 1819, the U.S. Supreme Court ruled that “To all eleemosynary corporations a visitorial power attaches as a necessary incident for these corporations, being composed of individuals; subject to human infirmities, are liable, as well as private persons, to deviate from the end of their institution. The law therefor has provided that there shall somewhere exist a power to visit, inquire into, and correct all irregularities and abuses in such corporations, and to compel the original purpose of the charity to be faithfully full filled.”
And in 1905, Supreme Court addressed the issue again: "In the United States, the legislature is the visitor of all corporations founded by it for public purposes.”