M ENTAL H EALTH P ROCEEDI NGS January 29, 2019 Professor Brian Shannon Texas Tech University School of Law
Topics • Serious mental illnesses • Emergency Detention • Civil Commitment Process • Medication Hearings • Overlap with Criminal Law – • Diversion • Competency • Insanity
Hypothetical Scenarios Ann Ann II Ann III Etc.
H&S Code Definition “Mental illness” means an illness, disease, or condition, other than epilepsy, dementia, substance abuse, or intellectual disability, that: (A) substantially impairs a person’s thoughts, perception of reality, emotional process, or judgment; or (B) grossly impairs behavior as demonstrated by recent disturbed behavior.
H&S Code Definition “Mental illness” means an illness, disease, or condition, other than epilepsy, dementia, substance abuse, or intellectual disability, that: (A) substantially impairs a person’s thoughts, perception of reality, emotional process, or judgment; or (B) grossly impairs behavior as demonstrated by recent disturbed behavior.
H&S Code Definition “Mental illness” means an illness … that: (A) substantially impairs a person’s thoughts, perception of reality, emotional process, or judgment; or (B) grossly impairs behavior as demonstrated by recent disturbed behavior.
Serious Mental Illness: Typical Diagnoses Schizophrenia Bipolar Disorder Major depressive illness Schizoaffective Disorder Note – other psychological disorders
Schizophrenia A brain disease that affects a person’s thinking and judgment, sensory perception and the ability to interpret and respond to situations appropriately. Symptoms can include poor reasoning, disconnected and confusing language, hallucinations, delusions, and deterioration of appearance and personal hygiene.
Bipolar Disorder Brain disorder that causes extreme shifts in mood, energy, and functioning. Bipolar disorder, also known as manic depressive illness, is characterized by episodes of mania and depression that can last from days to months.
Major Depression A serious medical illness. Unlike normal emotional experiences of sadness, loss, or passing mood states, major depression is persistent and can significantly interfere with an individual’s thoughts, behavior, mood, activity, and physical health. It is the leading cause of disability in the U.S.
Schizoaffective Disorder A brain illness marked by a co-occurrence of symptoms of major depression or mania concurrent with the symptoms of schizophrenia
Why do we need court-ordered MH services? Voluntary treatment is preferred, but often not sought What is anos osog ognos osia ? (i.e., lack of insight or awareness)
Civil Proceedings • Emergency Detention • Order of Protective Custody • Temporary Commitments – 45/90 days • Outpatient option • Extended Commitments – 1 year • Medication Hearings
Emergency Detention • Warrantless • With Magistrate’s Warrant
Law Enforcement – First Responders
Law Enforcement Discretion Health & Safety Code Section 573.001: An apprehended person with mental illness can be taken to a mental health facility instead of jail Officer has discretion
Law Enforcement Discretion Health & Safety Code Section 573.001: Peace officer may take a person into custody without a warrant if reasonable belief that: Person has a mental illness; and There is a substantial risk of serious harm to the person or others unless immediately restrained
Law Enforcement Discretio n Health & Safety Code Section 573.001: Peace officer can form belief from a representation of a credible person or on the basis of observed conduct Peace officer shall immediately transport the person to inpatient mental health facility or facility deemed suitable by LMHA
Trained Officers? CI T – Crisis I ntervention Training Mental Health Deputy Program MH Crisis Response Teams
HPD Crisis Intervention Response Team
Emergency Detention • With Magistrate’s Warrant • Discussion Scenario
Emergency Detention • With Magistrate’s Warrant • Written application by an adult • Judge or magistrate (can be a JP) to sign if there is reasonable cause to believe person has a MI, and is at risk of serious harm to self, others, or evidences severe emotional distress and deterioration
Emergency Detention • Purpose • Standard • 12 hours – must be examined by a physician • 48 hours/weekends
What happens next?
Order of Protective Custody • Purpose • Timing • Appoint attorney – when? who? • Probable cause hearing – 72 hours unless waived • 14-30 days; significance of duration
Civil Commitments • What happens at the hearing? • What questions do you ask?
Civil Commitments • Temporary: 45 days (but can be up to 90 if judge finds it “necessary”) • Outpatient option • Two doctors; one should be a psychiatrist • Hearing without a jury is the default
Civil Commitments • Extended: 1 year …. (and then another?) • If committed 60 days or more in the previous calendar year (consec. for inpatient, at least 60 for outpatient) • Jury trial is the default • But, are there any “civil” beds?
Medication Hearings • Why? • Section 574.101, etc. H&S Code • Based on doc’s application • May be (and typically is) held the same day as the commitment hearing • What questions do you ask?
574.106(a-1) The court may issue an order under this section only if the court finds by clear and convincing evidence after the hearing: (1) that the patient lacks the capacity to make a decision regarding the administration of the proposed medication and treatment with the proposed medication is in the best interest of the patient; OR
574.106(a-1) (2) if the patient was ordered to receive inpatient mental health services by a criminal court with jurisdiction over the patient, that treatment with the proposed medication is in the best interest of the patient and either: (A) the patient presents a danger to the patient or others in the inpatient mental health facility in which the patient is being treated …; or
574.106(a-1)(2) (B) the patient: (i) has remained confined in a correctional facility … for a period exceeding 72 hours while awaiting transfer for competency restoration treatment; and (ii) presents a danger to the patient or others in the correctional facility as a result of a mental disorder or mental defect ….
The Other Path What if, instead, Ann is arrested?
Continuing Challenges The criminal justice system, in effect, operates a second public mental health system E.g., what is the largest public mental health facility in Texas?
A RREST /B OOKING Overlap with Criminal Law Upon booking, jail must conduct a “continuity of care query” OVER 40% of bookings into local Texas county jails are for individuals who had either an “exact” or “probable” CCQ match, indicating some prior contact with the public mental health system, whether at a CMHC or a state hospital
New duties for Magistrates S.B. 1326 TCCP Article 15.17 (a-1) At initial magistration , magistrate must determine whether there has been written or electronic notice that the defendant has a mental illness or intellectual disability If so, proceed to TCCP 16.22/17.032
What notice? Duty for jail screening Duty for sheriff or municipal jailer to provide notice Use of TCOOMMI standardized form
DIVERSION OF OFFENDERS Pertinent Legislation Article 16.22, Code of Criminal Proc., Evaluations Article 17.032, Bonds/Treatment Conditions Article 42A.506 (was part of 42.12), Community Supervision
Article 16.22: Early Identification Sheriff or municipal jailer must notify a magistrate within 12 72 hours upon receiving credible information that may establish “reasonable cause to believe” that a defendant has a mental illness or intellectual disabilities Applies to Class B misdemeanor charges or higher Includes observation of behavior before, during, or after arrest
Article 16.22: Early Identification Examination is to be conducted by a qualified expert in mental illness or intellectual disabilities or local MH authority The exam must be conducted within 72 hours (used to be 21 days) No exam referral required if there is a 16.22 exam report on file from the previous one year Practice Tip: Records retention and access is important!
Article 16.22: Early Identification The exam report must be provided within 96 hours of the order for persons in custody or 30 days for released persons Written report to include “observations and findings,” “recommended treatment,” and any need for a full competency exam Copies to Trial Court, prosecutors, and defense counsel Magistrates shall submit monthly reports to OCA regarding the number of written assessments provided
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