General Practice, Solo & Small Firm Division


Volume 15, Number 3
July/August 1999

Representing a Mentally Disabled Client

BY J. THOMAS DALBY

Frank slouched in the office chair, unshaven and his hair disheveled. His dirty maroon pants were apparently not selected to match the canary yellow sweatshirt that beamed out from under his tattered nylon windbreaker.

Nights of sleeping in cold alleys had not made his fragrance the most attractive. Frank is not the ideal client—a very rich man in very serious trouble. He is a poor man with schizophrenia—mentally disabled and searching for help in protecting his civil rights. Can you help him? What do you need to know to make your representation effective?

The disabled have always struggled to share comparable legal status with their nondisabled neighbors. Until the 1970s legal advances were limited and poorly implemented. Then, legal actions, behavioral research, and civil rights activism began to crack the barriers placed in the way of the disabled. The landmark Americans with Disabilities Act (ADA), enacted in 1990 and becoming effective in 1992, was a radical initiative that extended various civil rights, already generally established, to those with defined disabilities. The ADA codified equal treatment and equal opportunity under the law.

Simply, a disability was described as a physical or mental impairment that substantially limited one or more major life activities. In addition to describing current impairment, disability also means having a history of a disability, or being perceived by others as having an impairment. These latter categories attempt to protect against discrimination based on history, stereotypical notions, and false conjecture that a person is mentally impaired. Some estimates suggest that disability, as defined in the ADA, encompasses 20 percent of the American population.

Mental "disabilities" under the ADA does not include all conditions defined as "disorders" using criteria in the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), the North American diagnostic standard. The ADA includes any mental or psychological disorder such as mental retardation, organic brain syndrome or mental illness, and specific learning disabilities. Courts have repeatedly relied upon the specific symptoms for each qualified disorder as found in DSM-IV and do not routinely weigh whether the condition is under control by medication or other treatment if life limitations still persist.

The mental disorders not considered to be disabilities under the ADA include sexual behavioral disorders such as pedophilia, compulsive gambling, pyromania, kleptomania, or current illicit substance abuse. Addicts who have completed or are in treatment are protected. The rights of mentally disabled individuals are overridden if they are deemed to pose a direct threat to the health and safety of others. Clearly, many individuals who have mental disorders not covered under the ADA will still require legal guidance and clinical intervention.

The ADA and other federal statutes, including the Fair Housing Amendments Act of 1988; the Social Security Act, and the Individuals with Disabilities Education Act, make discrimination against a person with a mental disability unlawful for issues such as housing, public services, access to telecommunications, financial support, employment, and appropriate education.

The enactment of legal statute does not cause society to spring into action to assure that the spirit of such paper ideals are implemented. Case law has seen continued intrusions on the rights of the disabled, carrying preconceived moralistic positions into the courtroom. As with most law, real change in societal custom is earned slowly and sometimes painfully.

First, Assess the Client

The first thing that any lawyer needs to know about when representing a potentially mentally disabled client is information about the disorder that may impair the client. If Frank walked into your offices for help, you could clearly see that he was different, but what else would you know? What are your preconceptions? A proper assessment of his condition at an early stage of any legal action will be necessary for you to plan informed assistance and will be required under many statutes. The psychologist or psychiatrist conducting such an assessment should possess expertise not only in diagnosing the condition that your client has but also in the specific legal issue to be addressed.

Under ADA Title I (employment discrimination), the forensic professional examining your client may be asked to address whether the client meets the criteria of a mental disability; and if so, whether he is qualified for the employment position in question; whether a proposed employment accommodation is suitable, and whether the client poses a threat to others. With regard to the last issue, the layperson may consider many mentally disabled clients to be dangerous because they seem different and unpredictable. We know, however, that the risk of violence to others perpetrated by the mentally disabled as a whole is not greater than that of the general population. Forensic examiners may use objective tools to assist in the determination of dangerousness for specific clients. When an opinion on issues such as dangerousness is rendered, counsel should insist on disclosure of the empirical basis for making such conclusions.

While the information in a forensic report will offer opinions on issues germane (and hopefully helpful) to the legal action, many forensic experts stop short of reaching a decision on the ultimate issue (e.g., whether a person should receive compensation under Social Security law). Do not consider this a flaw in the report but the work of a professional who knows the boundaries of her role.

When a diagnosis is reached, you should understand the basic elements of the disorder your client has to assist both in communicating with your client and representing his legal interests. Any lawyer who has a significant client base of people with mental disabilities should own a copy of the DSM-IV manual. Information on the diagnostic categories in DSM is also available on the Internet (www.cmhc.com/disorders).

With your client Frank, you discover from the DSM that he displays two main types of symptoms of schizophrenia—positive and negative. The positive symptoms include delusions, hallucinations, odd speech, and disorganized behavior. The negative symptoms may include flat emotional presentation and reduced spontaneous speech. Frank may answer your questions in brief and concrete replies. His speech may also convey little information. Negative symptoms often are the first suggestion that a person is developing this psychotic disorder, and these symptoms sometimes persist even when the patient takes antipsychotic medication to eliminate hallucinations and delusions. Patients with schizophrenia often have cognitive difficulties such as memory or concentration difficulty; take this into consideration when scheduling meetings or court appearances.

There are also different types of schizophrenia (paranoid, disorganized, catatonic, undifferentiated, and residual). Each type carries a different prognosis for recovery and interference with life tasks. Persons with the paranoid form of schizophrenia, for example, tend to do significantly better in their ability to function in an occupation and live independently. You will also discover that the life expectancy of clients like Frank is reduced because 10 percent of individuals with this diagnosis will commit suicide. Drug abuse often accompanies this disorder as well.

Children with Mental Disabilities

Some of the mentally disabled that you may choose to represent will be children. The Individuals with Disabilities Education Act (IDEA) is founded upon the principle that children with mental disabilities are entitled to the same education as nondisabled children. The mental disabilities presented under the IDEA include mental retardation, autism, serious emotional disturbance, and learning disabilities. Serious emotional disturbance is somewhat vague but is intended to cover children with a severe condition of long-term duration that impairs learning and is not explicable by intellectual, sensory, or health factors. The IDEA now includes individuals to age 21.

Also covered under the IDEA are impairment in forming and continuing interpersonal relationships, inappropriate behavior or feelings, depression, phobias, and psychosomatic disorders. Typically excluded are conduct disorders (characterlogical childhood antisocial behavior) and problems arising from family dysfunction or general stress. However, recent federal rulings have indicated that even youth in detention must be provided a broad array of rehabilitative and educational services. The IDEA requires participating state and local educational authorities to identify, locate, and evaluate potentially disabled students. Following this evaluation, a team of specialists develops an individual education plan (IEP) with input from parents, teachers, and sometimes the child. Parents dissatisfied with the original evaluation can request an independent evaluation. Payment for this extra assessment can rest on authorities or the parents.

The evaluator under the IDEA should possess training in both developmental psychology and education and should be able to attend to the questions of (1) type and extent of disability, (2) an appropriate teaching method for that child, (3) the necessary related services to implement an IEP, and (4) whether the venue for rehabilitation should be a regular or a special classroom. Testing of current functioning is important (e.g., intelligence, academic achievement, emotional state), but additional factors such as culture must be factored into the final report.

Ambiguities in the IDEA often lead to results of assessments or treatment plans being challenged. Is the diagnosis correct? Is the educational placement sufficient to provide "some benefit" to the child? How is "satisfactory progress" monitored? Once again, the issue of danger or disruption to others in the disabled child’s environment will be addressed.

Civil Commitment

Civil commitment remains a process evoking images of nineteenth century asylums or back wards from "One Flew Over the Cuckoo’s Nest." Reformers challenged the civil commitment process during the 1970s as simply the imposition of narrow views of "normal" social behavior by the medical establishment. During the past 20 years, a repeated debate has taken place in U.S. courts about who should control the restriction of liberty of the seriously mentally ill. Lower courts have tended to see the requirement of increased due process for the mentally ill prior to involuntary hospitalization, while the appellate courts, and the Supreme Court in particular, have done the reverse. The appellate courts and the Supreme Court have reinforced the view that commitment is a paternalistic act, flowing from the state’s parens patriae prerogative and inclination; and that decision making should be placed in the hands of medical, not legal, practitioners.

The volume of civil commitments has diminished significantly (some estimates suggest by more than 70 percent) during the past 30 years due largely to the availability of antipsychotic medications and a community mental health model that had its genesis in the 1960s. Still, it seems obvious that commitment is a major attack on the civil rights of many citizens without the checks and balances afforded to those facing criminal charges. With civil commitment often comes the loss of adjunctive rights such as the right to vote, marry, serve on juries, have contractual agreements, or drive a vehicle. The occasionally cavalier way in which these tenants of citizenship are stripped has necessitated vigilance by legal advocates with regard to state civil commitment procedures.

Nearly all state laws on commitment require the diagnosis of a mental disorder, and hold that this disorder may substantially impair the person’s ability to recognize that she has a disorder, and that the disorder will require treatment. Certainly, many individuals have mental disorders that would never form the basis of an attempt to commit them. The most common forms of mental disorder to invoke civil commitment actions are the psychoses, as they can grossly impair an individual’s judgment and ability to satisfy his basic life needs. Many mental conditions are explicitly excluded from various state laws governing commitment, such as mental retardation or dementia. Some states exclude substance abusers but certain legal voices have argued that civil commitment of severely addicted citizens has many advantages over criminal procedures to deal with these persons. Commitment periods, where allowed, are inclined to be shorter for substance abusers and the venue of treatment tends to be specialized treatment centers rather than mental hospitals.

Most often the substantive criteria for civil commitment requires some judgment that the person in question is a danger to herself or others as a result of her mental condition. As mentioned previously, many individuals with severe mental disorders, like schizophrenia or major depression, are at an elevated risk for suicide. An evaluation of the risk for suicide must be made based on the individual’s condition at the time of proposed committal, not just on long-term demographic risk factors. Hopelessness is the red flag of imminent suicide. Often, lawyers do the first interview of their clients, followed by professional psychiatrists and psychologists. Direct questioning about suicide (the word should not be avoided) is a must. Evaluation of the intensity and specificity of these thoughts, lethality of method, and any actions indicating making of final plans must be properly reviewed. Objective scales for this form of assessment are available to the clinician conducting the evaluation and should be used in conjunction with information from a variety of sources. Predictive risk is always imperfect, but a thorough review of the known risk factors in any case is helpful in weighing the need for commitment. Remember, it’s OK for lawyers to ask their clients these types of questions.

Unlike suicide, dangerousness to others does not have a strong association with major mental disorders as a group. The predictive ability of the psychiatrist or psychologist is thus reduced in the civil setting, at least for long-term forecasts. In addition, the amount of information needed for a proper evaluation of dangerousness is rarely available in commitment procedures. Most of the advances in the assessment of risk for violence have been in the context of criminal detainment, not civil commitments. It may be more helpful to assess current aggressive behavior and angry thoughts in the patient in addition to whether delusions exist that may place a third party at risk. Remember, civil risk for dangerousness focuses on imminent and not long-term risk to others.

Once these criteria have been advanced, placement in the "least restrictive environment" is considered. In the majority of cases, this environment is not likely to be involuntary hospitalization, yet often the alternatives are not fully reviewed. Hospitalization will be necessary for some clients with severe mental disorders and should be considered as a short-term stabilization period. Many critics have pointed out, however, that hospitalization carries many liabilities (fostering dependency, stigmatization, low quality care) that makes placement there anything but benign. Since hospitalized patients will probably access community care upon their release, it is important to consider these resources in advance of hospitalization. A diversionary or conditional community plan of treatment is possible under most ambiguous state laws. These plans are best implemented with the monitoring of a judge (or review board) who periodically requires the attendance of the patient on specified dates to review the benefits of the treatment. These types of innovations are available in most jurisdictions and parallel in some respects parole or insanity acquitee arrangements.

Civil competencies are varied and require a legal and clinical response that reflects this reality. Mentally disordered citizens, like any other, are assumed to have the right to self-determination. This right should only be revoked upon compelling proof that the patient may cause harm to others or that he is incompetent to weigh the consequences of his behavior when making decisions and thereby harms his own interests.

Other Legal Actions

Like civil commitment, the state’s authority to remove access to one’s property arises from the ancient principal of parens patriae. Rather than a punitive sanction, it is a protection or guard of the individual’s property while she is in a vulnerable state (temporary or not). Guardianship comes in many guises and terms (trusteeship, conservatorship, committee) and references are inconsistently applied across different states. Some forms of guardianship are specifically limited. More commonly, guardianship is plenary or broad in scope.

Does a mentally disordered individual require a guardian? This is the first question to address and is usually initiated by a third (and often not disinterested) party. Hearings into competencies are often hampered by lax, ambiguous, and informal elements of the procedure. Criteria for diagnoses are often not specified and the skills asserted to be deficient are frequently not tested directly. The goal of legal counsel, then, is to introduce some demand for clearer definitions (e.g., DSM-IV criteria) of mental disorder and direct measurement of the area of competency. Often, clinical evaluations are not required under law, but insisting on an independent evaluation is frequently helpful in asserting the client’s rights.

If there is a challenge to "self-care" of an elderly person, what standards are being employed? It must constantly be kept before the court that a standard of competence is typically a minimal and not an optimal value. In gauging whether a person can prepare her own meals, we look to basic needs being met and not that expected by a five-star restaurant. The same applies to knowledge and ability to control one’s financial assets. I have observed an elderly person grilled about his extensive holdings, and because he did not know every detail, the stipulation forwarded was that he was incompetent. The law does not demand such perfection but rests on a low threshold of knowledge and a general understanding of the extent of one’s property.

In measuring testamentary capacity, a similar standard exists—the individual must know that she is making a will, generally understand what her personal property consists of, and understand how her will distributes these assets. This distribution is expected to proceed to the "natural objects" of the "bounty" and much dispute is made over this premise. If most of the estate is left to a distant relative who had little contact with the testator and no assets are provided to close and emotionally supportive children, then a challenge to capacity may be in order. Debates about "rational" and "irrational" decisions tend to abound in these venues. The best tactic is always to attempt to introduce objective standards into these highly charged actions. Eccentricity does not necessarily equal mental disorder in viewing these rights.

Some of the most challenging and satisfying cases a lawyer will handle involve clients with mental disorders. Just touching on a few of the issues that may arise with these clients shows that a lawyer must attempt to introduce rigor and standards into a hazy and nebulous atmosphere created by many civil acts. The long history in Western civilization of providing for those unfortunate citizens who have lost the use of their reason through mental disease requires increasing vigilance in defending their rights, dignity, and self-respect.

J. Thomas Dalby, Ph.D., is a forensic psychologist and trial consultant in Calgary, Alberta, Canada. He is head of the Department of Psychology at Peter Lougheed Hospital and Adjunct Professor at the University of Calgary. He can be reached by e-mail at thomas.dalby@CRHA-health.ab.ca. He is the author of more than 100 professional publications, including Applications of Psychology in the Law Practice: A Guide to Relevant Issues, Practices and Theories (ABA General Practice, Solo and Small Firm Section, 1997).

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