Focus on the Statutory Standard No matter how entertaining it may be to hear stories of your client’s implausible claims of government surveillance, the issue is not your client’s atypical or antisocial behavior; it is whether the government has sufficient reason to curtail her physical liberty. “ … [F]reedom from physical restraint ‘has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action.” Kansas v. Hendricks, 521 U.S. 346, 356 (1997) citing Foucha v. Louisiana, 504 U.S. 71, 80 (1992). The state statutory standard must balance the government’s parens patriae purposes against the individual liberty interests at stake. In recognition of the gravity of the potential deprivation of liberty facing respondents, the Supreme Court held that due process requires “clear and convincing” evidence that the commitment statute has been met, although each state may articulate the precise burden to apply. Addington v. Texas, 441 U.S. 418 (1979). Each player has a different role in the proceedings: the hospital’s expert is a treating clinician, the defense attorney represents the respondent’s interests and ensures a fair hearing, and the judge determines whether the petitioner’s evidence meets the statutory standard. Constitutional requirements notwithstanding, the judge will be reluctant to throw open the doors of the hospital and set your client free, for fear of “what could happen.” It is your job to not only emphasize how the petitioner failed to meet its burden, but also to provide the judge with assurance as to what resources await your client in the community and provide specific justifications for denial of the petition.
Look first to the statute cited in the petition and confirm everything the petitioner is able to prove. A typical involuntary commitment statute will require the petitioner to prove that the respondent currently (1) suffers from a major mental illness as defined in applicable regulations, and that (2) as a result of that illness, the respondent is a danger to him or herself or others as evinced by violent acts or placing others in reasonable fear, or his or her judgment is so affected by the illness that he/she is unable to care for himself/herself in the community, and (3) there are no less restrictive alternatives to commitment. Also note any elements that receive extra emphasis in the statute—for instance, in Massachusetts the statute requires in an inability to care for self situation that there is a very serious risk of physical harm to self as a result of impaired judgment. It is your job to keep the judge focused on how each fact in the above hypothetical relates to the standard before the court.
Keep Inappropriate or Illegal Evidence from Being Admitted Familiarity with your state’s exceptions to the prohibition of hearsay is essential in mental health cases. A major source of evidence in your case will come from your client’s medical record, which will contain documentation by scores of hospital staff. Much of the medical record will be admissible under a business record or medical records exception—if the individual record sought to be admitted is of the type routinely recorded in such records. However, where the record contains totem pole hearsay unrelated to the business purpose, such as where hospital staff records statements by your client’s family members or police officers, the evidence should be excluded. Your client’s statements made in the course of medical treatment may be admissible as an admission of a party opponent; however, because such statements are usually privileged, your client should have received a warning as to the limits of confidentiality, which should be documented in the medical record.
Preparing Your Case With the keys to success in mind, you are ready to analyze the facts and formulate your theory of the case. The medical record will be the hospital’s expert’s guidebook to the case and put you on notice as to the petitioner’s evidence. While you may require a consultant to assist you in understanding the clinical aspects of the record, admission documents and progress notes will allow you to follow daily occurrences since admission.
By analyzing the medical record in conjunction with speaking with your client (if the client is willing), you will see where your client’s version of events differs from the hospital. While hopefully you will be able to retain an independent medical expert (IME) to assist you in understanding the clinical aspects of your case, you should have an understanding of the issues in order to choose an expert with the necessary areas of expertise and discuss the focus of the issues you would like him or her to evaluate.
How did your client arrive at the hospital and why? If she responded on her own, that shows ability to seek lifesaving medical care. Was she dressed appropriately, and did she have identification and money with her, which would support your position that she is able to care for herself in the community? If she was brought by ambulance/police/family, what were the circumstances? Often, there are alternative explanations such as substance abuse, a domestic dispute, or concerned family members, which have little if any connection to mental illness or dangerousness.
Did the hospital accept your client’s signature consenting to admission? This evinces the staff’s belief that your client was competent. If they accepted the signature and now maintain that she was incompetent, it decreases their credibility.
Did the hospital accept your client’s signature regarding warnings as to the limits of confidentiality? In order to waive any applicable psychotherapist-patient privilege, your client must acknowledge understanding that her statements are not confidential and can be disclosed in court. If your client was not provided with such a warning, or if the hospital’s expert testifies that your client did not understand, you can move for her statements to be inadmissible. If the hospital’s expert testifies that your client did understand and consent, you can highlight the complicated nature of the warning to bolster evidence of your client’s sound mental state.
What has happened since admission? The petitioner must prove that the requirements of the statute are met at the time of the hearing. Even if your client was committable at the time of admission, if he or she has recompensated during hospitalization, the petition should be denied. Also, every progress note written by staff during the hospitalization can provide evidence in the case. Some questions to consider:
- Has your client been eating meals, attending groups, and/or making plans for after discharge?
- Has your client had incidents of violence or has staff employed chemical or mechanical restraint? How much time has passed since the last incident occurred?
- What alternative explanations could account for alleged incidents of violence (e.g., frustration at being held against his or her will or conflict with another individual on the unit)?
- Has staff documented your client threatening anyone? If so, has he or she acted on these threats?
- Has staff notated that your client expresses a desire to leave? This could account for rational anger that the hospital’s expert will likely attribute to mental illness.
- What entries in the record support or contradict staff’s conclusions regarding your client?
Are there alternative explanations for any antisocial behavior?Once your client is on the psychiatric unit, staff has a tendency to interpret any atypical behavior as a product of mental illness. The chart will often contain documentation that your client is irritable, keeps to herself in her room, refuses to attend group therapy, or lacks insight regarding her illness (i.e., denies being mentally ill). This may be entirely reasonable, as your client may feel unsafe in common areas and the hospital’s diagnosis may be incorrect.
What resources has your client sought outside the hospital? Even if the petitioner can show that your client meets statutory elements, you should argue that there are less-restrictive alternatives to hospitalization. What was your client’s living arrangement prior to hospitalization? Is she welcome to return? Does she have the support of family or friends in the area? Was she receiving government services through the Department of Mental Health or Social Security? Her successful navigation of complicated processes necessary to receive government benefits supports your contention that she can care for herself in the community.
Working with an Independent Medical Expert The IME has two roles: assisting you in understanding your case and testifying at the hearing if his or her opinion would help your client. The information provided by the IME is not discoverable by the petitioner until you decide to call the IME as a witness. Even if you decide not to use the IME’s testimony, be proactive in seeking his/her assistance in understanding the clinical aspects of your case. These include:
- Clinical jargon. One of the greatest obstacles for attorneys in medical litigation is understanding the shorthand medical terms clinicians use to convey complex concepts. Terms such as “psychosis,” “hallucination,” “delusion,” and “obsession” have specific clinical definitions and should not be used arbitrarily. Ask the IME to highlight places where staff has used terms without the proper foundation.
- Diagnosis. Does the IME agree with the hospital’s expert’s diagnosis? Psychiatry is a behavioral science, and as such, psychiatrists evaluate data regarding an individual’s symptoms and behaviors to reach a diagnosis, rather than in biological sciences where a more definitive test such as a blood test can confirm the existence of an illness. It is quite common for clinicians to change an individual’s diagnosis or to disagree. This is particularly true where the purported diagnosis presents in combination with another condition such as substance addiction or other impairments.
- Symptoms of mental illness. By working with mental-health clinicians, you will begin to understand the symptoms that make up the overall presentation of individuals diagnosed with given mental illnesses. For instance, certain illnesses inhibit sensory perception—hence the insistence of the client in the hypothetical to wear a winter coat and refusal to take a shower. This is where you must focus the judge’s attention on the standard—how does the fact that your client wears a winter coat in the summer and refuses to shower affect her ability to care for herself?
- Health concerns. Health conditions unrelated to a mental illness diagnosis may impact your arguments regarding your client’s ability to care for herself in the community. The IME can evaluate the medical record, particularly as to vital signs and blood levels, to inform you of any continuing health risks or those that your client may have been facing upon admission. Where the hospital’s expert hypothesizes that a behavior such as your client’s insistence upon wearing a winter coat in the summer could cause a health concern such as dehydration, elicit testimony that your client was not in medical danger upon arrival at the hospital.
- Treatment plans. The petitioner is likely to file a proposed treatment plan in anticipation of the judge granting the petition for commitment, which will include a list of antipsychotics and dosage ranges the hospital’s doctor would like the court’s authority to administer. In Massachusetts, the judge would first make a finding that your client is incompetent to make decisions about treatment and then hear evidence to determine whether your client would approve the treatment plan if competent. Evidence regarding your client’s expressed preferences and religious beliefs are relevant, as well as the accepted therapeutic dosage range for each drug, potential side effects, and any need for monitoring. The IME should apprise you of any concerns and recommendations he or she has regarding the hospital’s proposed treatment plan, and potentially testify at the hearing regarding his/her opinion.
- Facilitating negotiation. One of the great advantages of involving an IME is that he or she can negotiate with the hospital’s expert regarding the petition to commit as well as the proposed treatment plan. The hospital’s expert may be much more motivated to modify the proposed treatment plan if the IME is prepared to counter the recommendations in court. Modifications to the treatment plan may constitute a less-restrictive alternative to hospitalization. For instance, if your client can take an antipsychotic by injection once every three months to ensure medication compliance rather than taking a pill much more frequently, it may prevent the need for confinement in a residential facility.
Cross-Examination Your cross-examination of the hospital’s expert should be designed to elicit the facts that support your theory of the case. You have the advantage of notice as to what testimony to expect, in that you’ve read the medical record. If the witness testifies to anything significant that was not documented, point out that it should have been recorded.
- Undermine the expert’s credentials. Is he or she board certified in psychiatry? How many times did he or she take the boards before passing?
- Does the expert have sufficient experience in evaluating patients, specifically as to this particular illness?
- Does the expert have experience with evaluating possible alternative explanations such as substance abuse? Does the expert have experience with proposed alternative diagnoses?
- Has the expert brought out positive, or only negative, aspects in the record?
- Expose the witness’s bias. How many times has he or she testified in support of a petition to commit? What courts has he or she testified in, and does he or she always testify for the petitioner? What are his or her liability concerns if your client is discharged?
- Discredit the basis of the witness’s opinion. How many times has the witness examined the patient? Has he or she spoken with your client’s family or social workers? What less restrictive alternatives to hospitalization have been explored?
- Be specific about notes in the record in cross-examination. Inquire if the witness has read an individual entry on a specific date if it counters the testimony.
In Closing When concluding your case, follow the outline of the statute to impress upon the judge that the petitioner failed to meet its burden. Using the introductory hypothetical, the evidence may support a closing statement as follows:
The stronger your client’s case, the more likely the petitioner will try to distract the judge from the facts in favor of generalized speculation as to what might happen if the judge denies the petition. By refocusing the judge’s attention on how the evidence fails to meet the standard before the court, you not only highlight the lack of basis for the petitioner’s conclusions, you reframe the issue properly: the lack of government interest in curtailing your client’s liberty. While prevailing is always a challenge where your client’s mental health is in issue, emphasizing how the facts support your client’s ability to remain at liberty in the community creates the highest likelihood that the judge will decide the case on the merits.
Keywords: woman advocate, litigation, mental health, independent medical expert, cross-examination, hearsay, statutory standard, medical record