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Civil Commitment and Civil Rights of Patients A Seminar on Legal Psychiatry by Henry A. Doenlen, M.D.

Topics in Today’s Presentation Voluntary Psychiatric Commitment Involuntary Psychiatric Commitment Right to Receive Treatment Right to Refuse Treatment\ Confidentiality

Objectives Use landmark cases to understand the origins of the laws regarding civil commitment and civil rights of patients. Examine Florida Statutes regarding psychiatric commitment and patient’s rights. Develop approaches to perform evaluations that comply with civil commitment laws. Comply with Florida Statutes regarding patient’s rights.

Bibliography Landmark Cases. Reprinted by American Academy of Psychiatry and the Law, 1997. Florida Statutes 1997 (Full Volume). http://www.leg.state.fl.us/ citizen/documents/statutes/1997/index.htm Resnick, P: Forensic Psychiatric Review Course Syllabus. American Academy of Psychiatry and the Law, 1997. Rosner, R: Principles and Practice of Forensic Psychiatry. Chapman and Hall, 1994. Melton, G: Psychological Evaluations for the Courts, 2nd ed. Guilford Press, 1997.

Voluntary Admission

Voluntary Admission Criteria FS 394.4625 Voluntary psychiatric admission requires: Mental illness Competent, expressed, and informed consent Suitable for treatment

Mental Illness (1) "Mental illness" means an impairment of the emotional processes that exercise conscious control of one's actions or of the ability to perceive or understand reality which impairment substantially interferes with a person's ability to meet the ordinary demands of living, regardless of etiology

Mental Illness (2) For the purposes of this part, the term does not include retardation or developmental disability as defined in chapter 393, intoxication, or conditions manifested only by antisocial behavior or substance abuse impairment.

Competent Adult Vol. Admission Age 18 or over Not adjudicated incapacitated Admitting physician documents within 24 hours after admission that voluntary patient was able to give express and informed consent for admission

Zinermon v. Burch (1) FACTS: Mr. Darnell Burch was found wandering along a Florida highway hallucinating, confused, hurt, and disoriented. He signed a voluntary admission form to a local psychiatric unit, and was transferred to a Florida State Hospital where he signed consent forms for admission.  He remained hospitalized for 5 months. Staff notes described him as having continuing confusion and overt paranoia.

Zinermon v. Burch (2) After his release, he sued under 42 U.S.C. Section 1983 arguing that he had been incompetent to consent to his own admission. U.S. Supreme Court, 1990 Holding: Claim was valid that Burch had been deprived by due process of law. Existing involuntary admission process could be extended to those unable to consent.

Child Voluntary Admission Age 17 or younger Application for admission made by guardian Hearing required to verify the voluntariness of consent

In Re Gault (1) FACTS: Gerald Gault, a 15 year old boy, was committed to an industrial school after being found delinquent because of making lewd telephone calls to a female neighbor.  He was sentenced until the age of 21, although an adult found guilty of a similar charge would face only a minor fine and imprisonment of no more than 2 months. When Gault was taken into custody, no notice was given to his family, no warrant was served, and the complainant did not appear at his hearings

In Re Gault (2) U.S. Supreme Court, 1967 Holdings: Juvenile cases require timely and adequate written notice, right of counsel, right of confrontation and cross-examination, and protection from self-incrimination. “Neither the Fourteenth Amendment nor the Bill of Rights is for adults alone.”

Parham v. J.R. (1) FACTS: J.R. and J.L. were children who had been hospitalized in a Georgia state mental hospital for years due to aggressive behaviors and disrupted placements.  This class action suit was based on 42 U.S.C. Section 1983 and sought an order placing them in a less confining environment.

Parham v. J.R. (2) U.S. Supreme Court, 1979 Holding: Georgia statutes for admitting a child for treatment in a state mental hospital were reasonable and consistent with constitutional guarantees. Parents retain a substantial, if not dominant, role in the decision, absent a finding of neglect or abuse…subject to a physician’s independent examination and judgement.”

Voluntary Admission of Seniors Age 60 or older and in nursing home, assisted living facility, adult day care center, or adult family-care home and suffering from dementia Age 60 or older in nursing home Any one whose medical decisions are made by health care surrogate or proxy Health care surrogate or proxy may not consent to mental health treatment

Voluntary Admission of Seniors Examination of ability to give express and informed consent by mobile crisis response service within 2 hours if delay, examination may be by a licensed profession authorized to initiate an involuntary examination who is not employed, contracted, or has financial interest in transferring or receiving facility Involuntary admission or transfer if refuses or unable to give informed consent

Mobile Crisis Response Service "Mobile crisis response service" means a nonresidential crisis service attached to a public receiving facility and available 24 hours a day, 7 days a week, through which immediate intensive assessments and interventions, including screening for admission into a receiving facility, take place for the purpose of identifying appropriate treatment services.

Voluntary Discharge When improved so retention in the facility is no longer desirable.

Withdrawal of Consent When consent is revoked or discharge requested either orally or in writing request can be made by a relative, friend, or attorney of the patient, but the discharge may be conditioned upon the express and informed consent of the patient Discharge must be within 24 hours may be extended 3 days (exclusive of weekends and holidays) if necessary for adequate discharge planning

Transfer to Involuntary After request for discharge Physician, clinical psychologist, or psychiatrist decides if patient meets criteria for involuntary placement Administrator must file with the court a petition for involuntary placement within 2 court working days after the request for discharge is made.

Involuntary Admission

Involuntary Exam Criteria (1) Person has mental illness, and because of mental illness Refused voluntary examination after conscientious explanation and disclosure of purpose of examination or, unable to determine for self whether examination is necessary

Involuntary Exam Criteria (2) And, without care or treatment person is likely to suffer from neglect or refuse to care for self such neglect poses a real and present threat of substantial harm to well being harm may not be avoided through the help of willing family members or friends or provision of other services or, person will cause serious bodily harm to self or others as evidenced by recent behavior

Involuntary Exam Initiation If person appears to meet criteria for involuntary examination Court enters an ex parte order based on sworn written or oral testimony Law enforcement officer written report detailing circumstances Physician, clinical psychologist, psychiatric nurse, or clinical social worker examined patient within preceding 48 hours

Involuntary Examination (1) Exam is without unnecessary delay Physician may order emergency treatment if necessary for safety of patient or others Release requires documented approval by psychiatrist or clinical psychologist No longer than 72 hours after arrival at hospital

Involuntary Examination (2) Involuntary placement requires: recommendation of the administrator of a receiving facility entered on an involuntary placement certificate supported by the opinion of a psychiatrist and second opinion of a clinical psychologist or another psychiatrist both personally examined patient within preceding 72 hours

Involuntary Placement Petition Filed on county court where patient is located Copies provided to Department, patient, patient’s guardian or representative, state attorney, and public defender

Invol. Hearing Participants (1) Public defender appointed within 1 working day has access to patient, records, witnesses represents the interest of the patient State attorney represents the state does not represent petitioning facility administrator One of the professionals who executed the involuntary placement certificate is a witness

Invol. Hearing Participants (2) Court may waive presence of the patient if consistent with the best interests of the patient and patient’s counsel does not object Patient has right to an independent expert examination independent expert’s report is confidential and not discoverable unless expert is called as a witness for the patient

Invol. Placement Criteria (1) Court finds clear and convincing evidence Person has mental illness, and because of mental illness Refused voluntary placement for treatment after conscientious explanation and disclosure of purpose of placement for treatment or, unable to determine for self whether placement is necessary

Invol. Placement Criteria (2) And, person is manifestly incapable of surviving alone or with help of willing and responsible family or friends including alternative services and, without treatment, is likely to suffer from neglect or refuse to care for self such neglect poses a real and present threat of substantial harm to well being

Invol. Placement Criteria (3) Or, substantial likelihood person will cause serious bodily harm to self or others evidenced by recent behavior causing, attempting, or threatening such harm All available less restrictive treatment alternatives which would offer an opportunity for improvement judged to be inappropriate

Burden of Proof Beyond a reasonable doubt Better to let ten guilty men go free than convict one innocent man At least 90 % certain Clear and convincing At least 70-75 % certain Preponderance of the evidence More likely than not At least 51% certain

Lessard v. Schmidt (1) FACTS: Alberta Lessard was picked up by the police who filed an emergency detention form resulting in her hospitalization. There was no notice, no right to cross-examination, no offer of independent psychiatric evaluation for her commitment. Her attorney filed a class action suit that included all persons held involuntary under the Wisconsin commitment statute

Lessard v. Schmidt (2) Federal District Court (E.D. Wis, 1972) Holding: Wisconsin law was unconstitutional. High water mark for protection of liberty rights “Criminalization” of civil commitment Maximum period of emergency detention set at 48 hours Full hearing to be held in 10-14 days

Lessard v. Schmidt (3) Standard for commitment “an extreme likelihood that if person is not confined, he will do immediate harm to himself or others” Finding of dangerousness based on recent overt acts, attempts, or threats to do substantial harm to oneself or others. Burden of proof was beyond a reasonable doubt

Lessard v. Schmidt (4) Patients should be given: advance notice of a commitment hearing and the basis of the detention right to a jury trial right to counsel privilege against self-incrimination exclusion of hearsay evidence substance of state’s proposed testimony

Addington v. Texas (1) FACTS: Mr. Frank Addington had a long history of psychiatric hospitalization. His mother filed a petition for his indefinite commitment to a state hospital after an “assault by threat” on her. At the trial level, the standard of proof used was clear and convincing, and the jury found Addington to be mentally ill and civilly committable. Addington contended that standard should have been “beyond a reasonable doubt”

Addington v. Texas (2) U.S. Supreme Court, 1979 Holding: “Clear and convincing” evidence is the constitutional minimum civil commitment is not punitive there is periodic review and release Beyond a reasonable doubt was inappropriate because of uncertainties of psychiatric diagnosis Preponderance was insufficient to protect individual from stigma and loss of liberty

Lake v. Cameron (1) FACTS: Mrs. Catherine Lake was a 60 year old woman found wondering about Washington D.C. by a policeman and taken to St. Elizabeths Hospital. A writ of habeas corpus was filed for her released. Psychiatric opinion was Lake had organic brain syndrome, would not harm herself, but was prone to wondering away and being out exposed at night.  Lake testified she as able to be at liberty.

Lake v. Cameron (2) U.S Court of Appeals, D.C., 1966 Case remanded back to District Court with instructions that trial court had to inquire about alternative less restrictive courses of treatment First mental health case that used “less restrictive alternative.”

Invol. Placement Hearing Hearing held within 5 days Court can order involuntary treatment up to 6 months if criteria for involuntary placement are met involuntary assessment for 5 days if criteria for involuntary examination are met Court can find patient incompetent to consent to treatment appoint guardian advocate

Guardian Advocate  "Guardian advocate" means a person appointed by a court to make decisions regarding mental health treatment on behalf of a patient who has been found incompetent to consent to treatment pursuant to this part. The guardian advocate may be granted specific additional powers by written order of the court, as provided in this part.

Continued Invol. Placement (1) Administrative hearing Administrator files petition requesting authorization for continued involuntary placement accompanied by statement from patient’s physician or clinical psychologist justifying the request brief statement of patient’s treatment individualized plan of continued treatment

Continued Invol. Placement (2) Administrative law judge can order continued involuntary placement up to 6 months Hearing officer may find that patient is now competent to consent to treatment

O’Connor v. Donaldson (1) FACTS: Mr. Kenneth Donaldson was confined at Chattahoochee State Hospital for 15 years.  Donaldson refused medication because he was a Christian Scientist. Literally years would go by with no progress notes. Friends of Donaldson offered to care for him on several occasions, but the hospital administration and his psychiatrist, Dr. O’Connor ignored this. Donaldson brought suit of malpractice and wrongful confinement.

O’Connor v. Donaldson (2) U.S. Supreme Court, 1975 Holding: The state cannot constitutionally confine, without more (meaning treatment) a non-dangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends. Case settled out of court. Defendants paid $20,000 to Donaldson.

Fasulo v. Arafeh FACTS: Ann Fasulo (confined for 26 years) and Marie Barbieri (confined for 13 years) alleged that they were illegally confined to the Connecticut Valley Hospital.  They had been confined indefinitely. Holding: Due Process rights require periodic judicial review, at which the state bears the burden of proving the necessity of continued confinement.

Invol. Placement of Veterans Meets criteria for involuntary placement Certificate received from federal agency that: facilities are available, and person is eligible for treatment therein Court may order placement with federal agency After placement, patient is subject to rules and regulations of the federal agency

Incompetent to Stand Trial Same criteria for involuntary placement Admitted to Forensic facility up to 6 months or until competency to stand trial is regained or until no longer meeting criteria for involuntary placement

Jackson v. Indiana (1) Facts: Theon Jackson was a mentally defective deaf mute man with a mental level of a preschool child.  At age 27, he was charged with the theft of a purse and its contents valued at $4 and another theft of $5 in money.  He was found not competent to stand trial because of his non-existent communication skills, and he was held in a hospital.

Jackson v. Indiana (2) An appeal was filed arguing that Jackson’s commitment amounted to a life sentence without his ever having been convicted of a crime. U.S. Supreme Court, 1972 Holding: Without a finding of dangerousness, one can be held only for a reasonable period of time necessary to determine whether there is a chance of attaining competency to stand trial.

Jackson v. Indiana (3) “Due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual was committed.”

Retarded defendants admitted to secure facility for retarded defendants annual court hearings to order continued placement placement may not exceed maximum sentence for crime

Not Guilty by Reason of Insanity Involuntary commitment pursuant to findings of not guilty by reason of insanity because of mental illness, manifestly dangerous to self or others Admitted to appropriate facility for treatment

NGRI Treatment report is filed pursuant to Florida Rules of Criminal Procedure within six months prior to end of extended commitment if defendant no longer meets criteria for continued placement

Baxtrom v. Herold (1) FACTS:  Johnnie Baxtrom served a sentence in a New York prison on an assault charge.  During this time, he was transferred to Dannemora state hospital as “insane.”  At the conclusion of his sentence, he was certified in need of ongoing psychiatric care, and was held a the same maximum security institution.  He did not have an attorney to represent him or an independent psychiatric examination. Daxtrom’s writ of habeas corpus and request for transfer to a civil hospital was dismissed.

Baxtrom v. Herold (2) U.S. Supreme Court, 1966 Holding: New York law allowed for a jury review of civil commitment. This should have been allowed for Baxtrom

In re Richardson (1) FACTS: Cade, Richardson, and Ellerbee were civilly committed to St. Elizabeth Hospital because of dangerousness, then released to the community after stabilization. Their commitment orders authorized the hospital to return a patient summarily to the hospital for no more than five days in the event “his condition deteriorates or he fails to comply with the outpatient therapy program.”

In re Richardson (2) Holding: Hospital must provide trial court with an affidavit within 24 hours of the patient’s return stating the recent actions of the patient and reasons for the return enabling the court to make a prompt, ex parte determination that the patent failed to abide by the treatment regimen or has suffered a deterioration

Discharge of Involuntary Patients Any time a patient is found to no longer meet the criteria for involuntary placement Patient may be: discharged transferred to voluntary status placed as an improved patient in the care of a community facility if under a criminal charge, transferred to custody of a law enforcement officer

Right to Receive Treatment

Payment Considerations Treatment cannot be denied or delayed because of inability to pay Every reasonable effort to collect appropriate reimbursement from persons able to pay, including insurance or third-party payments

Least Restrictive Treatment Least restrictive appropriate available treatment based on individual needs and best interests of patient consistent with optimum improvement of patient’s condition Physical examination within 24 hours after arrival if patient remains in facility more than 12 hours

Treatment Plans Opportunity to participate in activities to enhance self-image and beneficial effects of other treatments Individualized treatment plan in writing within 5 days after admission patient assists in preparation and review space for patient’s comments Patient has right to participate in treatment and discharge planning

Quality of Treatment services suited to patient’s needs administered skillfully, safely, and humanely with full respect for patient’s dignity and personal integrity

Seclusion and Restraint criteria, procedures, required staff training, documentation, monitoring, clinical review, and system for review of complaints (in a form understandable by patients) regarding close supervision, restraint, seclusion, isolation, emergency treatment orders, use of bodily control, and physical management. Seclusion and restraint may not be used for punishment, or to compensate for inadequate staffing

Right to Refuse Treatment

Habeas Corpus A writ of habeas corpus may be filed by patient, relative, friend, guardian, guardian advocate, representative, attorney, or the department at any time question cause and legality of detention allege that patient is being unjustly denied a right or privilege, or that a procedure is being abused

Informed Consent Right to express and informed consent if adjudicated incapacitated or found to be incompetent to consent to treatment, consent is from guardian or guardian advocate if a minor, consent is required from guardian

Special Consents ECT, procedures requiring general anesthesia if patient is not competent to consent, consent may be given by guardian or guardian advocate if expressed court authority to consent had been provided otherwise, court hearing is done to determine necessity

Expressed & Informed Consent "Express and informed consent" means consent voluntarily given in writing, by a competent person, after sufficient explanation and disclosure of the subject matter involved to enable the person to make a knowing and willful decision without any element of force, fraud, deceit, duress, or other form of constraint or coercion.

Emergency Treatment emergency treatment may be rendered in the least restrictive manner upon written order of a physician if it is determined that such treatment is necessary for the safety of the patient or others

Additional Patient Rights

Right to individual dignity Restraining devices can be used only for the protection of the patient or others Not be deprived of constitutional rights

Communication free communication unless free communication is likely to be harmful to self or others free local calls, access to long-distance service telephone is readily accessible for private and confidential use

Mail receive, send, mail sealed and unopened correspondence unless there is reason to believe that it contains items or substances harmful to patient or others

Visits immediate access by patient’s family members, guardian, guardian advocate, representative, human rights advocacy committee, or attorney unless not consented by patient or detrimental to patient restrictions reviewed at least every 7 days reasonable rules governing visitors, visiting hours, use of telephones

Additional Patient Rights Abuse Reports access to telephone to report alleged abuse Care and Custody of Personal Effects inventory effects and clothing, and return to patient Voting in Public Elections

Confidentiality Clinical record is confidential. Released by express and informed consent by patient, guardian, or guardian advocate Parents may have treatment plan summary and current physical and mental condition.

Exceptions to Confidentiality Record needed by: patient’s counsel for adequate representation court order committed or returned to Department of Corrections Patient has declared an intention to harm other persons Abstracted information may be used for statistical and research purposes