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May 01, 2015 Judicial Ethics

Ethics Challenges for a Mental Health Court Judge

By Marla N. Greenstein

Judges have become accustomed to the “problem-solving” court model. Originating with “drug courts,” there is widespread recognition that the traditional court model does not adequately address the problems and needs of parties now coming before the courts. While largely in the criminal context, judges are increasingly asked to explore innovative ways to address complex social issues. In a previous column, I addressed many of the ethical issues that are raised in problem-solving courts (see “Creative Judging: Ethics Issues in Problem-Solving Courts,” spring 2012). In this issue, we specifically face the challenges for judges in mental health courts.

Not only do judges in mental health courts face the same ethical quandaries as those in other problem-solving courts (relaxed rules of evidence and procedure, institutionalized ex parte communications, changing role from adjudicator to facilitator), but they also face all the complexities that mental health issues raise.

We have seen in the articles in this issue that mental health problems often are associated with homelessness, physical health issues, and compliance problems. So, too, the offenses that bring individuals into mental health court can cover a huge range. Many of the courts described in this issue handle underlying crimes ranging from manslaughter to shoplifting. The mental illnesses themselves are complex and often co-existing with substance abuse. Judges, however well studied and attuned to their programs, cannot, without reliance on experts and the special teams created to assist in these specialized courts, address these multifaceted concerns.

This complexity and reliance on outsiders fundamentally change the customary role of the judge. In addition, management of medication and compliance with medical directives may be at issue. Whether a judge can compel an individual to comply with medical protocols may differ among jurisdictions. The ethical challenges are clear.

In addition to the usual problem-solving court dilemmas, judges in mental health court often need to rely on teams of outside providers to a large extent. The complexity of issues presented is often accompanied by a lack of needed outside resources. Well-meaning judges may be tempted to solicit donated services or fund-raise for supporting not-for-profits, activities clearly not permitted under existing Codes of Judicial Conduct.

The role of the judge in mental health court needs to remain judicial. Clearly defined goals for both the program and the individual participants are essential. Without clear guidelines and protocols, the scope of judicial action can become murky and lead to inadvertent violations of Rule 2.2, requiring judges to perform duties fairly and impartially. So, too, the judge needs to be vigilant as to the limitation of a judge’s role. The judge, while assisting social workers, cannot become a social worker. What is more, a judge overseeing medical compliance reports may provide incentives for medical compliance, without improperly sanctioning noncompliance.

A judge’s role is to oversee compliance with court orders within the bounds of the law. It is to be a collaborative approach in which the judge maintains a very familiar role: to guide the court process to meet these goals of the law. In mental health court, those goals are to address the underlying reason that the person is interacting with the judicial system and reduce the chances that it will recur. In short, the judge’s goal remains to “uphold and apply the law” (Model Code of Judicial Conduct Rule 2.2.), no matter how complex the circumstances or the problem.