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Olmstead Enforcements for Moderate to Severe Brain Injury: The Pursuit of Civil Rights Through the Application of Law, Neuroscience, and Ethics
Fins, Joseph
Fins, Joseph
Abstract
Our Article considers what the legal system can do to identify and support the recovery and reintegration of persons with severe brain injury, suffering from disorders of consciousness. We explore the possibility of marshaling law to advocate for this cohort of
patients, who are currently overlooked by the medical and legal systems. Despite their potential for recovery, many of these individuals remain segregated in nursing homes, where they do not receive adequate medical care, much less the rehabilitation that might permit the restoration of functional communication, which is so central to their reintegration to the nexus of their homes and families. Deprived of these medical interventions, these patients are further isolated and segregated from civil society. We view this situation as unethical and as a violation of the American with DisabilitiesA ct. To remedy this violation of law, we explore the application of Olmstead enforcements to patients with severe brain injury. We trace the legal evolution of disability law and Olmstead enforcements, deriving from the leading United States Supreme Court case regarding deinstitutionalization and community reintegration, Olmstead v. L.C. ex rel. Zimring. Our Article highlights how Olmstead could be used in an effort to
desegregate and reintegrate those with hidden consciousness back into their communities.