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 31, Issue 1, edited by Jane D. Hickey.
Below are brief summaries of recently decided or currently pending cases in mental health law.
DOJ Settles ADA Investigation of Delaware Psychiatric Center
The United States Department of Justice (“DOJ”) entered into a Settlement Agreement with the State of Delaware in July 2011 resolving its investigation under the Americans with Disabilities Act of the Delaware Psychiatric Center, the State’s only state-run facility for persons with mental illness. United States v. Delaware, Civil Action No. 11-591-LPS (July 6, 2011). The Settlement Agreement followed DOJ’s on-site inspections of the hospital and community programs conducted in May 2008 and August 2010 and the issuance of its investigative “findings” letter on November, 9, 2010.
The Agreement requires Delaware to implement programs and services to prevent institutionalization of at-risk individuals by offering community-based services in accordance with a strict 5-year implementation schedule beginning with the date of the Agreement and ending July 1, 2016. The target population to be served under the agreement includes individuals with serious and persistent mental illness who are at highest risk of institutionalization whose symptoms manifested in the last year, resulted in functional impairment which substantially interferes with or limits one or more major life activities and has episodic, recurrent or persistent features. Priority for receipt of services must be given to people currently at Delaware Psychiatric Center, including those on forensic status, people discharged from the Delaware Psychiatric Center in the last two years, people admitted to private institutions for mental disease (“IMDs”), people who have had an emergency room visit in the last year due to mental illness or substance abuse, people who have been arrested, incarcerated or had encounters with law enforcement in the last year due to mental illness, people who have been homeless a full year or had four or more episodes of homelessness in the last three years, and people who have requested services or who have been referred for services by others in the last year.
Services provided must be implemented statewide and be linguistically and culturally competent, solution-focused and recovery-oriented. Mandated services include crisis services, including a crisis hotline, mobile crisis teams, crisis walk-in centers, crisis stabilization services, and crisis apartments, intensive support services, including assertive community treatment, intensive case management, and case management with specific caseload limits specified, housing, including supported housing, supported employment and rehabilitation services, and family and peer supports.
Each individual now in or being admitted to the Delaware Psychiatric Center or an IMD must have a transition plan developed through a person-centered planning process that identifies barriers to placement and steps that will be taken to address the barriers. A central specialized transition team must also be established to focus on individuals when teams have identified that the person is to remain in the Psychiatric Center or an IMD or placed in a less integrated setting, such a congregate living or a nursing home, or who have intensive behavioral or medical needs. Once a plan has been developed, the person must be discharged within 30 days. For individuals on forensic status, the State must educate judges on the recommended placement and services. All individuals must be reassessed with 30 days of the signing of this Agreement and the transitional and specialized teams must be in place within 60 days.
Central to the Settlement Agreement is a comprehensive risk management and performance improvement system that must be approved by the Monitor. The system includes a provision that all providers, including community providers have a risk management and performance improvement plan in place, including a requirement that they complete a root cause analysis within 10 days of any person receiving services experiencing harm. Harm includes any physical or emotional injury, whether caused by abuse, neglect or accidental injury. Corrective action plans must be developed and the State must establish a Performance Improvement Section that will monitor and follow-up on implementation of all corrective action plans. These expectations must be included in all contracts the State enters into with providers and must be performance-based. The State must also develop a detailed data collection process and utilize the data to identify quality of care trends and to ensure a continuous loop of performance evaluation and improvement.
DOJ and the State also appointed a Monitor, Robert Bernstein, Ph.D., to oversee all aspects of the settlement implementation. The Monitor operates as an officer of the court with authority to independently observe, report on and make recommendations concerning the State’s compliance. He has unimpeded and unmonitored access to all facilities, services, programs, staff, individuals receiving services, individual records and services plans, risk management and quality improvement documents, and receive reports of serious incidents and deaths, and state implementation reports. The Monitor must report to the court, DOJ and Delaware twice a year on Delaware’s progress towards implementation of the Agreement. To carry out his duties and responsibilities, the Monitor may hire staff and consultants to assist him. Delaware must pay all the Monitor’s expenses, making an initial deposit of $100,000 into a court-managed fund upon which the Monitor will draw and which the State will replenish monthly.
Robert Bernstein is a clinical psychologist and President and Executive Director of the David J. Bazelon Center for Mental Health Law in Washington, D.C. Virginia will remember him as a Department of Justice consultant in its investigations of the Northern Virginia Mental Health Institute and Western State Hospital in the 1990s.
This Settlement Agreement is similar to the one DOJ entered into with the State of Georgia in November 2010 with respect to its mental health services. DOJ also conducted an on-site investigation under the ADA of Central Virginia Training Center near Lynchburg, Virginia in August 2011 concerning services provided to individuals with intellectual disabilities, the same month it concluded its investigation of the Delaware Psychiatric Center, and issued an investigative “findings” letter to Governor Robert McDonnell on February 10, 2011. Virginia has been negotiating corrective action with DOJ since that time and can expect any DOJ settlement demands to include statewide implementation of comprehensive services, similar to those negotiated with Delaware for persons with mental illness, designed to lead to a community-oriented system to be implemented on a tight time line and subject to strict monitoring and oversight.
Washington Supreme Court Holds No Constitutional Mandate to Determine Competency to Represent Self
The Washington Supreme Court has held that a trial court is not constitutionally required to independently determine whether a defendant was sufficiently competent to waive counsel when he had previously been found competent to stand trial following a pre-trial hearing. In re Rhome, 2011 Wash. LEXIS 743 (September 15, 2011). The court held that a defendant’s mental health status is but one factor a trial court may consider in determining whether a defendant has knowingly and intelligently waived his right to counsel and to represent himself.
In this case, Rhome was charged with first degree murder with a deadly weapon of a 17-year old girl. Another juvenile confessed to stabbing the girl but identified the defendant as the “mastermind” behind the killing. Since early childhood, the defendant had been treated for psychiatric disturbances, including several in-patient psychiatric hospitalizations. He had received a myriad of diagnoses including, psychotic disorder, delusional disorder, oppositional defiant disorder, mild mental retardation, obsessive/compulsive traits, and pervasive developmental disorder (Aspergers disorder). The trial court held a competency hearing finding that the defendant had not proved he was incompetent to stand trial. Throughout the pre-trial proceedings, the defendant asserted his right to represent himself. The court first denied his request to proceed pro se indicating that his ability to do so was equivocal. After his renewed request, the court advised him of the risks and engaged in coloquy to determine if he understood the significance of this undertaking. His mental health issues were not specifically addressed during the colloquy. The court granted his request and appointed standby counsel to assist him. The jury convicted the defendant and he was sentence to 30 years in prison. A mental health expert for the defense who later examined the defendant’s performance in representing himself testified that his mental illness impacted his ability to defend himself in court. He testified that the defendant engaged in perseverative and aggressive questioning that was incoherent or intimidating, and he was unable to self-regulate his emotions and behavior.
In June 2008, just following the state courts’ denial of the defendant’s direct appeals, the United States Supreme Court decided Indiana v. Edwards, 554 U.S. 164 (2008). In Edwards, the Supreme Court held that a trial court could insist that a defendant proceed with counsel even though the court had found the defendant was competent to stand trial. The Washington Court stated that the Edwards decision assumes that a defendant will “assist” in his defense, not “conduct” his defense when the defendant has been found competent to stand trial. Competency to stand trial does not equate with the right to represent oneself and the Supreme Court declined to set a standard for the state to follow. In determining whether a defendant has the right to waive counsel, the court considers his background, experience and conduct, which may include his history of mental illness. In denying his petition for post-conviction relief, the Washington Supreme Court held that a defendant’s mental health status is but one factor a trial court must consider in determining whether a defendant has knowingly and intelligently waived his right to counsel. An independent determination of competency for self-representation is not a constitutional mandate.
First Circuit Denies Habeas Relief That Counsel Was Ineffective in Failing to Request Competency Evaluation
The First Circuit Court of Appeals has denied habeas corpus relief to a petitioner who was convicted of first degree murder in Massachusetts who allowed his 11-month old son to die based upon his religious beliefs. He argued that his counsel at trial was ineffective because he had an obligation to seek a competency to stand trial evaluation and that he failed to raise an insanity or diminished capacity defense. Robidoux v. O’Brien, 643 F.3d 334 (1st Cir. 2011).
The defendant in this case was a member of a religious sect led by his father that believed that a number of institutions, including the legal system, medical system and mainstream religion were invalid and its members were instructed to eschew doctors and medicines. The evidence showed that until he was about 8 months old, the child was thriving and well nourished, but about that time the defendant’s sister got a “leading,” instructing that the mother should feed the child only breast milk in limited quantities. Thereafter, the infant began to fail. The defendant and his wife failed to take the infant to a doctor or to provide him with a proper diet. The day after the sect conducted a special meeting to pray for the child, he died. After concealing the body in his sister’s house for several months, the defendant buried the baby in Maine. The police located the body a year after the burial when a defector from the sect reported the death to authorities.
At trial, the defendant argued that the prosecution could not prove the cause of death was malnutrition, based upon the testimony of his forensic expert that the infant could have died from any number of causes. The chief medical examiner testified that the condition of the decomposed body was indicative of severe malnutrition due to starvation. The defendant testified in his own defense that he had no intent to harm the child. The jury convicted him of first degree murder and he was sentenced to life in prison.
In seeking habeas corpus relief, the defendant argued primarily that his counsel should have pursued an insanity or diminished capacity defense based upon three affidavits, the first from a psychologist who never interviewed the defendant stating that the defendant was unable to appreciate or understand that it was wrong to deprive his son of solid food. The Director of the New England Institute for Religious Research stated that the defendant’s father exercised undue influence over him and other sect members that made it impossible for counsel to present an adequate defense. The defendant himself filed an affidavit stating that counsel discussed the insanity defense with him, but he refused to talk with a doctor or psychotherapist prior to trial due to his religious beliefs.
The trial court found that counsel properly defended the case based upon the judge’s own observations of the defendant in court, the answers provided in colloquies from the bench, and his testimony at trial, even though he presented a rambling eve-of-trial motion to represent himself saying the government had no jurisdiction to try him, which she found appeared a tactic to delay trial. No fact-finding hearing was conducted on his competency to stand trial.
The First Circuit articulated the standard in ineffective assistance of counsel cases that there must be proof that counsel fell below the minimum standards of representation and there was a reasonable probability that the deficiency altered the outcome of the case. Where raising a particular defense is a strategy choice, counsel will be given special deference. On the other hand, if substantial indications exist that the defendant was not competent to stand trial, counsel is not faced with a strategy but with a settled obligation under Massachusetts and federal law to raise the issue with the court and seek a competency evaluation. Competency is a functional concept focusing on the defendant’s part in the trial, namely whether the defendant understands the nature of the proceedings against him and is able to assist counsel in his defense. In this case, it appears that he argued that the government had no legitimate authority over him, but he engaged in an intelligent and articulate colloquy with the court and as a witness. There was no evidence that the defendant had ever suffered from a mental illness or that he failed to understand the proceedings or cooperate with counsel. Although state court findings are generally accorded no deference absent an evidentiary hearing, there was no evidence presented that a competency hearing was necessary.
In addition, the 1st Circuit held that the defendant could decline to assert an insanity defense and refuse a psychiatric examination, which he apparently did. His current defense counsel argued that he suffered from a delusional disorder based on his religious illusions that God and prayer, not ordinary nourishment, would protect his son. He also argued that his diminished capacity prevented him from forming the necessary intent to support a conviction for first degree murder. The appellate court held that there was no evidence to support a mental illness and that the law provides for the denial of medical care in certain situations based upon religious beliefs, such as for example, those held by Christian Scientists and Seventh Day Adventists, but the evidence, including the defendant’s own testimony indicated that he understood the risk.