Video tribute, prepared for the memorial celebration, April 29, 2018, Berkeley, CA..
For four decades, Mort Cohen was a champion of the rights of disadvantaged and marginalized individuals - people in psychiatric institutions, in prisons and jails, and in nursing homes. Professor Cohen litigated Riese v. St. Mary's Hospital, the landmark case which vindicated the right of persons in California facilities to refuse psychiatric drugs. His efforts in a lawsuit filed by California Advocates for Nursing Home Reform resulted in the promulgation of new statewide regulations restricting the use of chemical and physical restraints on residents of nursing facilities. Cohen's dedication through decades of litigation resulted in the closure of a notorious San Francisco jail and improvements in conditions at other area jails and prisons. In the 1970s, he represented defendants prosecuted by the government following the uprisings at Attica and at Wounded Knee. The author of numerous books, manuals, and articles, Professor Cohen has taught civil procedure and criminal law at Golden Gate University School of Law for over 30 years. He also lectured and led discussions on the constitutional and statutory rights of individuals with psychiatric disabilities before the California Association of Mental Health Patients' Rights Advocates and other groups.
Cohen had prodigious energy (he still ran marathons in his 70s) and a passion for public service. The Brooklyn-born son of a truant officer, he knew early on that he wanted to work toward improving conditions for vulnerable populations---particularly the poor, the elderly, the incarcerated, and persons diagnosed with psychiatric disabilities. As a Ford Fellow at Harvard Law School, he first began representing clients pro bono. Later he served as a trial attorney with the U.S. Department of Justice and as a consultant to the California Mental Health Association and California Advocates for Nursing Home Reform. Professor Cohen directed the Constitutional Law Clinic at the School of Law, which was part of the Western Center for Constitutional Rights.
CANHR v. Chapman: Court Order Protects Nursing Home Residents
The Alameda County Superior Court has ruled nursing homes that give mind-altering drugs and withdraw life-sustaining treatment to “unrepresented” residents are violating the state constitution and must stop immediately. The case, CANHR v. Chapman, was brought by Professor Mort Cohen of Golden Gate University Law School on behalf of California Advocates for Nursing Home Reform (CANHR) and several nursing home residents against the California Department of Public Health (DPH).
Since 1992, California nursing homes have used Health and Safety Code §1418.8, a law allowing nursing homes to make routine medical decisions for residents who lack mental capacity and do not have family or other surrogate decision-makers, to drastically limit the lives and liberty of their residents. DPH has interpreted this law to permit facilities to tie residents to their beds, force them to take antipsychotic drugs as chemical restraints, and authorize the withdrawal of treatment necessary to sustain life.
The Court found Section 1418.8 facially unconstitutional for its failure to provide residents with any notice they had been determined “incapacitated” or that medical decisions were being considered without their input. The Court also held that the state constitution prohibits nursing homes from drugging residents or withdrawing life-sustaining treatment without more due process than Section 1418.8 provides.
According to Professor Cohen, “The judge understood that what is convenient for nursing homes turns out to be highly intrusive to residents. This decision recognizes that people do not lose their rights to life and liberty simply because they live in a nursing home.”
Pat McGinnis, Executive Director of CANHR stated “This is an amazing victory for nursing home residents and all Californians. The decision will ensure that residents are protected from poorly considered treatment and are given the full respect that our constitution affords.”
The Court recognized that its ruling “will likely create problems in how many skilled nursing facilities operate” but “the court has considered this burden and weighed it against due process concerns, and finds that the due process rights of these patients is more compelling.” [emphasis added]