Topics Serious mental illnesses Emergency Detention Civil - - PowerPoint PPT Presentation

MENTAL HEALTH PROCEEDI NGS

January 29, 2019 Professor Brian Shannon Texas Tech University School of Law

• Serious mental illnesses
• Emergency Detention
• Civil Commitment Process
• Medication Hearings
• Overlap with Criminal Law –
• Diversion
• Competency
• Insanity

Topics

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

• f 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

• sog
• gnos
• sia? (i.e., lack of

insight or awareness)

• Emergency Detention
• Order of Protective Custody
• Temporary Commitments – 45/90 days
• Outpatient option
• Extended Commitments – 1 year
• Medication Hearings

Civil Proceedings

• Warrantless
• With Magistrate’s Warrant

Emergency Detention

 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 Discretion

 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

• 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,

• r evidences severe emotional

distress and deterioration

Emergency Detention

• Purpose
• Standard
• 12 hours – must be examined by

a physician

• 48 hours/weekends

Emergency Detention

What happens next?

• Purpose
• Timing
• Appoint attorney – when? who?
• Probable cause hearing – 72 hours

unless waived

• 14-30 days; significance of duration

Order of Protective Custody

• 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?

Civil Commitments

• 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?

Medication Hearings

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,

• perates a second public mental health

system

 E.g., what is the largest public mental

health facility in Texas?

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

• r a state hospital

ARREST/BOOKING

 S.B. 1326  TCCP Article 15.17 (a-1)  At initial magistration, magistrate must

determine whether there has been written

• r electronic notice that the defendant has

a mental illness or intellectual disability

 If so, proceed to TCCP 16.22/17.032

New duties for Magistrates

 Duty for jail screening  Duty for sheriff or municipal jailer to

provide notice

 Use of TCOOMMI standardized form

What notice?

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

Article 16.22

 3 findings in report:

 Does the person have a mental illness or

intellectual disabilities?

 Is there clinical evidence to support a belief

that defendant should undergo a complete competency evaluation?

 Appropriate or recommended treatment?

Article 16.22

 Relevance of findings in report:

 Tied to 17.032 personal bond statute  Trial court can use the written assessment during punishment

phase in connection with imposition of treatment conditions as part of community supervision (including deferred adjudication)

 Can tee up the case for a full competency exam

Article 16.22

 After receiving report, Trial Court:

 May resume proceedings  Initiate competency proceedings (if ripe)  Consider the assessment in punishment phase in connection

with imposition of treatment conditions

 Refer to a specialty court or docket  Release on a 17.032 bond

Article 17.032: Release Without Bail

 Unless good cause is shown, magistrates SHALL

release on personal bond alleged offenders with mental illness or intellectual disabilities who are charged with non-violent offenses and who have not been previously convicted of a violent offense

 Magistrate shall impose a treatment condition, unless

good cause is shown for not requiring treatment – tied to the recommendations in the 16.22 examination report

 Must coordinate with the local MH authority

Article 17.032: Release Without Bail

 Magistrate must consider all circumstances, pre-trial

risk assessment if appropriate, and any other credible evidence provided by the state or defense, and that the PR bond will reasonably ensure appearance in court and the safety of the community and victim

 List of violent offenses was narrowed to exclude

“simple” assault except when the offense involves family violence

 Key aspect is the treatment condition if condition is

chronic in nature and will deteriorate if untreated

Article 17.032: Release Without Bail

 Key aspect is the requirement/ability to impose

a treatment condition if condition is chronic in nature and person will deteriorate if untreated

 Outpatient or inpatient treatment  But, where?

Mental Health Services at the Jail?

 Required  But, inconsistent around the state  How do you approach it?

ARREST/BOOKING

Civil Commitment: Charges Pending

 May be used for non-violent offenses  Commitment is an option if charges do

not involve an act, attempt, or threat of serious bodily injury to another person

 But, is there a bed?

Article 42A.506

Community Supervision

 Deferred Adjudication  Probated Sentence  Treatment Conditions  After Evaluation  Opportunity for plea negotiations & MH

Courts

Competency Statute

 46B – Competency  Goal of Prompt Evaluation &

Treatment for Competency Restoration

Criminal Competency: The Du

Dusky y Standard & Ch. 46B

• Defendant must have present ability

to consult with attorney, AND

• Defendant must have a rational and

factual understanding of the proceedings

Competency Statute

 Early identification – practical impact on

bed availability

 No jury trial if one not sought – ditto

Raising the I ssue

 A suggestion of incompetency  Some evidence from any source  A representation from a credible source

I s the Examiner Qualified?

 The court’s duty  Appointment of attorney prior to

evaluation

 Psychologists or Psychiatrists who are:

 Board certified in forensics, or  24 hours of specialized training/8 of these

in the last 12 months

 Pitfalls – be aware!

I s the Examiner Qualified?

 Not a treating doctor  Can the same doctor examine for both

competency and insanity? If so, what are the limits?

I f Defendant is I ncompetent: Commitment for Restoration

 Charged with a Class B? Class A?  Where?

 State hospital?  Outpatient?  In jail?

Understand the Procedural Consequences – the Locus of Commitment

 State and now, federal, lawsuits re delays  52% of beds  Alternatives – Outpatient competency

restoration

 New in 2017 – jail-based comp. restoration

2017 - Key Changes to Chapter 46B

 Promote jail-based and outpatient/local

competency restoration, reduce reliance

• n state hospitals for restoration

 New procedures for competency

restoration of defendants charged with Class B misdemeanors

Key Changes to Chapter 46B

 A prioritization scheme for situs of

restoration is established

 Outpatient – consider first  Jail-based – consider next  If neither OPT nor jail-based is available, or

if a maximum security unit is required, then turn to inpatient commitment

Jail-Based Competency Restoration

• Lubbock grant
• Challenges for other

counties

Key Changes to Chapter 46B

 Practical challenges to outpatient and jail-

based services

 But, note grant availability  Creates the framework for the future!

Outpatient Competency Restoration

 Pilots  Cost is significantly less than the state forensic

hospitals

 Potential for shorter stays  Frees up space on the waitlist for forensic

hospital beds, and can help with civil commitment bed availability

Know the Time Frames!

 Misdemeanors

 Inpatient – 60 days + ONE possible 60 day

extension

 Outpatient or Jail-based – Class B – 60 days +

ONE possible 60 day extension

 Jail-based – Class A – 60 days + ONE possible

60 day extension

 Outpatient – Class A – 120 days + ONE

possible 60 day extension

Know the Time Frames!

 Felonies

 120 days + ONE possible 60 day extension  Inpatient, Outpatient, or Jail-based

Know the Time Frames!

 Have a system for tracking the days!  Know the consequences for action & next

steps if the defendant is not restored within the maximum time frames

 Be aware of the possibility of “timing out”

Know the Time Frames!

 But, what if there is an finding that the

defendant is unlikely to be restored in the foreseeable future?

Additional Highlight from S.B. 1326

 Amended Art. 32A.01, Code of Crim. Proc., to

give priority over other criminal or civil matters to criminal trials for defendants who have been restored

Medication Orders

 Note: After a restoration, a medication

• rder will remain in effect for 180 days

following the defendant’s return to court to await the criminal proceedings.

Return to Court – What now?

 The challenges of 46B.084  Timelines – size of county  Found competent by state hospital, but

defense counsel believes otherwise

 EBS option (if no return to court)

What if the Defendant is Unrestored?

 Subchapter E – charges remain pending

 46B.102 – civil commitment/mental illness  Required application of MH Code by criminal court  46B.103 – civil commitment/intel. disab.

 Subchapter F – charges dropped

What if the Defendant is Unrestored?

 Subchapter E – charges remain pending

 46B.102 – civil commitment/mental illness  Required application of MH Code by criminal court  Temporary (i.e. 45 – or 90 – days)?  Extended (up to 1 year)? Trigger?  Process?

Court-ordered Medication

 Convoluted statutes/processes  Duration – follows the individual  The Texas two-step:

 First, H&S Code 574.106  Before a court with mental-health jurisdiction;

i.e., your court!

 Second, in the criminal court using 46B.086

46B.086 – Medication Hearings

 Applies to a person who is

 in jail more than 72 hours while awaiting

transfer for competency restoration,

 is committed for competency restoration at an

inpatient facility, outpatient, or a jail-based program, or

 is back in jail following competency restoration

treatment, AND

46B.086 – Medication Hearings

 Applies to a person who is

 * * * *  AND, for whom there is a continuity of care

plan, AND

46B.086 – Medication Hearings

 Who, after a hearing held under Section

574.106, Health and Safety Code, if applicable, has been found NOT to meet the criteria prescribed by Sections 574.106(a) and (a-1), Health and Safety Code, for court-ordered administration of psychoactive medications.

Challenges for the Court & Counsel

 These are complicated processes and

procedures

 Many prosecutors, judges, and defense

counsel are not intensely familiar with the intricacies

Resource

http://texasjcmh.gov/

Resource

http://namitexas.org/wp-content/uploads/sites/ 12/2014/12/2016-NAMI-Texas-Shannon-book-with-cover.pdf

THANKS!

January 29, 2019 Professor Brian Shannon Texas Tech University School of Law