Remedies for the abuse of children
I think it would be safe to say that abuse of children in institutions is a widespread and serious problem, using the broad definition of child abuse contained in the Child Abuse Prevention and Treatment Act. Just judging from the cases which have been or are being litigated and from our investigation of other institutions in which suits by the attorney general have been dismissed for lack of statutory authority, practices which deny children and adults in institutions of basic constitutional rights are quite widespread. It is that perception which led the department to support the passage of Public Law 96-247 so that the attorney general would have the clear authority to initiate suits where they are most needed rather than having to wait until private litigants have brought suits in which we can seek to participate.
We approach the question of remedy on a case-by-case basis, and ask the courts to take the remedial measures which are appropriate to the conditions which it has found to exist.
For example, courts have enjoined the use of medication as a punishment, for the convenience of the staff, as a substitute for programming, or in quantities that interfere with the residents' functioning. Similarly, limitations have been placed on the use of mechanical restraints so that they are used only when necessary to prevent injury to the individual resident or others or to promote physical functioning. Courts have also held that restraints may be used only upon the order of a qualified professional for a specified time and renewed only by the professional, and that the person in restraints must be checked at regular intervals to prevent harm from occurring.
Institutional officials have been ordered to take every precaution to see that the buildings in which persons reside are kept clean and conducive to good health. Wheelchairs must be provided for those residents who require them. The feeding of residents while they are lying flat has been prohibited because of the dangers of aspiration. Medical and other health-related services have been required to be provided, and increased security procedures have been required to protect residents from injury.
Children in institutions are peculiarly unable to articulate their rights and to use the courts to redress deprivations of those rights. It is unfortunate that resort to the legal system has been increasingly necessary to secure the basic rights for institutionalized persons to which all citizens are entitled. However, while that forum is needed, I believe that the United States, through the attorney general, can be an effective advocate for those unable to speak for themselves, and I believe that Congress has taken a very important step by enacting legislation which will provide a firm basis for fulfilling the commitment of the US to constitutional treatment of all in stitutionalized persons.