Developments in Mental Health Law is a free publication of the Institute of Law, Psychiatry and Public Policy at the University of Virginia, School of Law. It is published electronically six times per year through funding provided by the Virginia Department of Behavioral Health and Developmental Services. The following was excerpted from Volume 30, Issue 1, edited by Jane D. Hickey.
Below are brief summaries of recently decided or currently pending cases in mental health law.
Georgia Enters Precedent-Setting Settlement Agreement with Department of Justice
In order to settle the United States Department of Justice lawsuit brought against it under the Americans with Disabilities Act, the State of Georgia agreed on October 19, 2010 to substantially change its service delivery system for both persons with intellectual disabilities and mental illness by emphasizing community-based care over institutional settings. United States v. Georgia, N.D. Ga No. 1:10-cv-249-CAP, http://www.justice.gov/crt/about/spl/documents/georgia/US_v_Georgia_ADAsettle_10-19-10.pdf. The Settlement Agreement is remarkable in its commitment to institute sweeping changes to the entire developmental disability and mental health service delivery system. Key portions of the agreement include:
For persons with developmental disabilities,
- stop all admissions to its facilities for persons with intellectual disabilities by July 1, 2011
- transition its residents with intellectual disabilities to community settings by July 1, 2015apply for 1150 home and community based waivers by July 1, 2015; 750 for those transitioning from state hospitals; 400 to help prevent institutionalization for those currently in the community
- provide family supports to 2350 families by July 1, 2015
- establish 6 mobile crisis teams by July 1, 2012
- establish 12 crisis respite homes by July 1, 2014 to provide respite services to persons with developmental disabilities and their families
For persons with mental illness,
- serve 9,000 people with serious mental illness in community settings by July 1, 2015. The target population consists of people currently served in state hospitals with frequent readmissions or seen in emergency rooms, including those who are chronically homeless or in and out of jail
- establish 22 PACT teams by July 1, 2013
- establish 8 community support teams by July 1, 2014 to provide services to people in their own home and ensure community resources for those who remain in their own home
- establish 14 intensive case management teams by July 1, 2015
- hire 10 full-time case managers that will coordinate treatment and support services and assist individuals with accessing community resources
- develop 45 case management service providers by July 1, 2015 to coordinate treatment and support services and help maintain services and supports already in place
- establish 6 crisis service centers by July 1, 2015 to provide walk-in psychiatric and counseling services that are clinically staffed 24 hours per day/7 days per week to serve individuals in crises
- add 3 crisis stabilization programs by July 1, 2014
- add 35 community based psychiatric hospital beds in non-state community hospitals
- establish a toll free telephone access system for people to obtain information about community resources
- establish mobile crisis teams in every county by July 1, 2015
- establish 18 crisis apartments by July 1, 2015 as an alternative to crisis stabilization programs and psychiatric hospitalization
- provide supportive housing to 9000 people with serious and persistent mental illness by July 1, 2015
- provide housing supports to 2000 people ineligible for benefits by July 1, 2015
- provide bridge funding to 540 people by July 1, 2014 to support their transition to supported housing
- provide 550 people with supported employment by July 1, 2015
- provide peer support services to PACT and CST services by July 1, 2014 for an additional 835 people
- hire one case manager and one transition specialist per state hospital by July 1, 2010
Georgia will also develop an annual network analysis to assess availability of community supports by July 1, 2012 and develop a quality management system by July 1, 2012 to perform annual quality service reviews of community services under the agreement. Georgia will also fund an independent reviewer to assess the state’s compliance with the Agreement.
Supreme Court Hears Arguments Whether Protection and Advocacy Agency May Sue State Officials to Access Peer Review Records
The United States Supreme Court heard oral argument on December 1, 2010 in Virginia Office for Protection and Advocacy v. Stewart, 568 F.3d 110 (4th Cir. 2009) pet. for cert. granted (U.S. No. 09-529, June 21, 2010), as to whether one independent state agency, the Virginia Office for Protection and Advocacy, may sue other state officials, namely the Commissioner of the Department of Behavioral Health and Developmental Services and the directors of two state facilities, to enforce the requirements of the Protection and Advocacy for Individuals with Mental Illness Act or 1986 (“PAIMI”), 42 U.S.C §§ 10801-10851 and the Developmental Disabilities Assistance and Bill of Rights Act (“DD Act”), 42 U.S.C. §§ 15001-15115. The 4th Circuit had reversed the decision of the federal district court, refusing to allow VOPA to sue the Commissioner and directors of Central State Hospital and Central Virginia Training Center to obtain peer review records related to the deaths of two individuals and the severe injury of a third. The 4th Circuit refused to apply the Ex parte Young doctrine which permits law suits by private parties to enforce federal law and obtain injunctive relief, but not monetary damages, from individual state officials in federal court. The court found that the lawsuit could otherwise be brought in state court.
Indiana is also seeking Supreme Court review in a similar case in which the 7th Circuit en banc held that the Indiana Protection and Advocacy agency could sue. Indiana Family and Social Services Administration v. Indiana Protection and Advocacy Services, 603 F.3d 365 (7th Cir. 2010) en banc, pet. for cert. filed, (No. 10-131, July 21, 2010). In addition to the Ex parte Young arguments heard in the Virginia case, Indiana is also arguing that PAIMI does not create a private right of action and peer review documents are protected against disclosure under state law.
Should the Supreme Court rule in the DBHDS Commissioner’s favor in VOPA v. Stewart, VOPA would need to file a new lawsuit in state court to seek access to peer review records. If the Supreme Court rules in VOPA’s favor, the case will be remanded back to the United States District Court in Richmond for a determination of the case on the merits. Four other federal circuits have already ruled that the state’s protection and advocacy agency has access to peer review records. Pennsylvania Protection and Advocacy, Inc. v. Houstoun, 228 F.3d 423 (3rd Cir. 2000); Center for Legal Advocacy v. Hammons, 323 F.3d 1262 (10th Cir. 2003); Missouri Protection & Advocacy Services v. Missouri Department of Mental Health, 447 F.3d 1021 (8th Cir. 2006). Protection and Advocacy for Persons with Disabilities v. Mental Health and Addiction Services, 448 F.3d 119 (2nd Cir. 2006).
Sixth Circuit Refuses to Vacate Tennessee Consent Decree Involving Conditions in Arlington Development Center
The 6th Circuit Court of Appeals has refused to vacate a consent decree and court orders entered in the 1993 lawsuit concerning conditions at the Arlington Development Center. United States v. Tennessee, 615 F.3d 646 (6th Cir. 2010). In the lawsuit originally brought by the Department of Justice under the Civil Rights of Institutionalized Persons Act, the trial court had found that the Tennessee Department of Mental Health and Developmental Disabilities had failed to provide individuals residing in ADC with medical care, and keep them free from abuse and neglect and undue bodily restraint. Tennessee sought to have the consent decree vacated on the grounds that there was a change in the law between the time the federal trial court approved the consent decree and entered orders enforcing its terms. Tennessee argued that “state control” changed the standard for determining when a resident is voluntarily confined as opposed to a person being placed involuntarily in a state-operated facility.
The Court stated that even though there was a split in the courts as to whether the state owes an affirmative constitutional duty of care and protection to voluntarily admitted residents as it owes to involuntarily committed individuals under Youngberg v. Romeo, the 6th Circuit had not ruled on the issue. It also noted that although individuals with intellectual disabilities are considered “voluntary” residents in Tennessee and are free to leave the facility at any time they wish, they are admitted with the consent of their parents or guardians and are at their mercy as to whether they will remain placed at the facility. The Court also recognized the comprehensive involvement of the state in every facet of a resident’s daily life, including provision of their food, transportation, shelter, medical care and protection, and that they generally remain in the state’s care for years. The Court therefore held that there had been no change in the law since entry of the consent decree and subsequent orders that would warrant vacation of the consent decree.
Fourth Circuit holds Government Cannot Forcibly Medicate Incompetent Defendant Due to Special Circumstances.
In United States v. White, 620 F.3d 401 (4th Cir. 2010), the 4th Circuit Court of Appeals determined that the government’s usually strong interest in prosecuting someone charged with six felony offenses was too diminished in this case by “special circumstances” to make it constitutional to involuntarily medicate the defendant with antipsychotic drugs to restore her competency to stand trial. The defendant, charged with conspiracy, credit card fraud and identity theft, had already spent 41 months locked up and the estimate was that it would take another ten months before she would be competent to stand trial if treated with medication.
Prior to involuntarily medicating a defendant to restore his competency to stand trial, the United States Supreme Court held in Sell v. United States, 539 U.S. 166 (2003), that the government must establish that the treatment must 1) serve an important government interest, 2) be substantially likely to succeed without significant side effects, 3) be necessary in light of alternatives, and 4) be “medically appropriate.” Applying the Sell standard, the 4th Circuit found in United States v. Bush, 585 F.3d 806 (4th Cir. 2009) that the government must establish the Sell requirements by clear and convincing evidence. It also held that the government must establish not only that it has an important interest in involuntarily medicating the defendant, but also that this interest is not mitigated by special circumstances in a particular case.
Courts have generally found that a ten year maximum sentence constitutes a sufficiently serious crime to establish an important governmental interest. In this case, the defendant’s sentence if found guilty would likely range from 42-51 months; she had already been confined for 41 months; and the estimate was that it would take another ten months to render her competent. In addition, the crime charged was nonviolent; she was not a danger to herself or the public; her conviction met requirements for the federal ban on possession of firearms; and there was considerable ambiguity as to the side effects and effectiveness of antipsychotic medication because she suffered from a “rare form of delusional disorder.” Of note, Judge Barbara Milano Keenan added a concurring opinion stating that this case was not one of those exceptional cases contemplated by Sell and that a contrary ruling would come “perilously close to a forcible medication regime best described…as routine.” The Court therefore refused to authorize the government to forcibly medicate the defendant to restore her competency to stand trial.
Mentally Incompetent Defendant Has No Due Process Right Against Being Tried, Committed and Treated as Sexually Violent Predator
Overturning the decision of the California Court of Appeals, the California Supreme Court in a split decision has ruled that a mentally incompetent defendant has no due process right to avoid being tried and committed as a sexually violent predator. Moore v. Superior Court of Los Angeles County, California, 237 P.3d 530 (2010). The court held that due process does not require mental competence on the part of someone undergoing a commitment or recommitment trial, which is a civil proceeding under the California Sexually Violent Predators Act. The strong governmental interest in protecting the public through the proper confinement and treatment of SVP’s would be substantially thwarted by recognizing an SVP’s right to delay or avoid confinement and treatment for a sexually violent mental disorder because his problems render him incompetent to stand trial. Recognition of such a due process right could prevent an SVP determination from being made at all. Such a scenario could often recur and would undermine the purpose and operation of the Act. The court found that public safety could suffer as a result.