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 3, edited by Jane D. Hickey.

Below are brief summaries of recently decided or currently pending cases in mental health law.

Class Action Filed Alleging Texas Violates ADA in Failing to Provide Community-based Services

Six named individuals residing in nursing facilities in Texas, the Arc of Texas, and the Coalition of Texans with Disabilities filed suit in December 2010 against the Governor, the Executive Commissioner of Health and Human Services and the Commissioner of the Department of Aging and Disability Services alleging that Texas is violating the Americans with Disabilities Act, § 504 of the Rehabilitation Act, Title XIX of the Social Security Act and the Nursing Home Reform Amendments. Steward v. Perry, No. 5:10-cv-01025 (W.D. Tex.).

The plaintiffs are alleging that each of the named individuals with a combination of intellectual disabilities and other conditions, such as cerebral palsy, epilepsy, or head injury, all qualify for community-based services and supports and are seeking class action certification for the 4500 others in Texas nursing facilities and the thousands more at risk of institutionalization. They are alleging that 45,756 individuals are on Texas’ waiting list for Home and Community-Based Services Waiver with Texas ranking 49th out of the 50 states in providing community-based care. They further allege that Texas has failed to provide PASARR Level II screenings to the plaintiffs or to provide “specialized services” required by Medicaid. Ironically, the plaintiffs argue that individuals residing in Texas’ 13 state-operated supported living centers under DOJ consent decree receive active treatment and better services than they do, noting that their scope of specialized services is limited to physical, occupational and speech therapy. The plaintiffs Arc and Coalition of Texans with Disabilities are suing on their own behalf and on behalf of their members. The defendants filed a Motion to Dismiss on March 8, 2011 arguing, among other things, that the plaintiffs lack standing to bring this action, that a portion of their complaint is time barred and that the Acts they allege the defendants are violating convey no private right of action upon the plaintiffs.

Government Fails to Carry Burden to Forcibly Medicate Incompetent Defendant

The Ninth Circuit Court of Appeals has reversed the decision of the trial court and found that the Government did not meet its burden of establishing by clear and convincing evidence the Sell factors authorizing treatment of a defendant over his objection. United States v. Ruiz-Gaxiola, 623 F.3d 684 (9th Cir. 2010).

The defendant in this case, a Mexican citizen with an extensive criminal history of drug offenses, was charged with illegal reentry into the United States. Diagnosed with a delusional disorder, grandiose type, he was found incompetent to stand trial and sent to Butner Correctional Institution in North Carolina for treatment. At an administrative hearing, the defendant was found not to be a danger to himself or others in the institutional setting and did not suffer from a grave disability justifying involuntary medication. Thus the sole issue before the court was whether the defendant could be medicated over objection for the purpose of restoring his competency to stand trial.

Under Sell v. United States, 539 U.S. 166 (2003), the government must prove by clear and convincing evidence each of the factors enunciated by the United States Supreme Court: 1) that important governmental interests are at stake; 2) involuntary medication will significantly further that interest, i.e. it is substantially likely to restore defendant to competency and substantially unlikely to cause side effects that would impair significantly his ability to assist in his defense; 3) involuntary medication is necessary to further those governmental interests; and 4) treatment with medication is medically appropriate.

The magistrate judge considered the evidence and concluded that the government had proved its case. The Court of Appeals reversed finding that this case does not present one of those rare circumstances permitting medication over objection to render the defendant competent to stand trial and the government had not met its burden under Sell’s second and fourth prong. Although the defendant had never been treated with antipsychotic medications, the Court held that the government must prove what the medication will do, not what it is designed to do. The appellate court discounted the testimony of the government’s experts and relied on the testimony of the defendant’s expert who testified that the medication was likely to worsen his rare and difficult to treat mental disorder and increase his delusional thinking, especially based upon his inferiority feelings and hypersensitivity to powerlessness. It found that treatment with haldol would also unduly subject him to the risk of tardive dyskinesia. The court therefore found that treatment with medication was medically inappropriate.

SVP Petition Cannot Be Filed in New York When Respondent Not in Custody for Sex Offense

The New York Court of Appeals has upheld the decision of the appellate court dismissing the Attorney General’s petition to commit this respondent under its Sex Offender Management and Treatment Act. In the Matter of the State of New York v. Rashid, 16 N.Y.3d 1, 2010 NY LEXIS 3339 (November 23, 2010). Although the respondent had pled guilty to sodomy in 1991, he was incarcerated for robbery at the time the interagency notice was sent by the Department of Corrections that Rashid may be a sex offender. At the time the respondent received notice of the petition, he was in jail for petit larceny. Because the respondent was not subject to state custody or supervision, he was not a detained sex offender at the time the petition was filed for purposes of the Act. The Court also held that the proceedings commenced at the time the Attorney General filed the petition, not at the time notice was provided by the Department of Corrections.

Hospital Not Liable for Counselor’s Sexual Harassment of Patients

The Eleventh Circuit Court of Appeals has held that Grady Memorial Hospital is not liable for one of its counselor’s sexual misconduct with three patients in its methadone treatment clinic. Doe v. Fulton-DeKalb Hospital Authority, 628 F.3d 1325 (11th Cir. 2010). The plaintiffs alleged that the counselor made inappropriate sexual advances during drug counseling sessions, and that Grady failed to conduct an adequate background investigation prior to hiring the counselor and to adequately supervise the counselor. The Court found that under Georgia law an employer cannot be found liable for the sexual misconduct of an employee under the doctrine of respondeat superior. In addition, the Court upheld the finding of the district court that the hospital exercised ordinary care in the hiring process. While its screening protocols were less than ideal, the hospital had no actual notice of prior misconduct by this employee; he passed criminal background checks and a drug test; and he provided dishonest information during the application and interview process as to why he left his previous jobs. The fact that the hospital failed to comply with Georgia regulation requiring it obtain a five-year employment history on all applicants posed licensing problems only and did not impost tort liability on the hospital.