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Developments in Mental Health Law, Vol. 31 (1)

December 17, 2011 By Comments

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.

 

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Developments in Mental Health Law, Vol. 30 (6)

July 15, 2011 By Comments

 

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rensicpsychology.org/wp-content/uploads/2011/05/developmentsnewsetter.jpg” alt=”" width=”169″ height=”127″ />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 6, edited by Jane D. Hickey.

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

Arkansas Court Rules against US Department of Justice in CRIPA/ADA/IDEA Lawsuit Brought Against State of Arkansas

Following a six-week trial from September 8 through October 15, 2010, the United States District Court for the Eastern District of Arkansas has found that the United States Department of Justice (“DOJ”) did not meets its burden of proving as alleged under the Civil Rights of Institutionalized Persons Act (“CRIPA”) that the State of Arkansas and Arkansas state officials were failing to provide reasonably safe conditions and habilitation and training services necessary to protect the residents’ liberty interests, at Conway Human Development Center, a training center for 509 persons with developmental disabilities. United States v. State of Arkansas, et al., 2011 U.S.Dist. LEXIS 61347 (June 8, 2011). The Court also held that DOJ failed to prove that Conway Development Center violated the integration mandate of the Americans with Disabilities Act as alleged by failing to provide services in the most integrated, least restrictive setting appropriate to the needs of qualified individuals with disabilities. The Court did find that Conway Development Center failed to comply with all the requirements of the IDEA, but because Congress provided for a state educational agency to enforce compliance with that Act and because evidence established that the state agency was enforcing the Act and the Center had submitted a corrective action plan, no injunction was appropriate.

The Court began its opinion noting how unusual it was for the US Department of Justice’s Civil Rights Division to be enforcing the rights of individuals with disabilities when most of the residents of Conway Development Center had parents or guardians to enforce those rights. Most of the parents or residents were fully satisfied with the services provided and opposed the DOJ claims. Six members of the Conway Human Development Center Parents’ Association, an association comprised of parents and guardians concerned about the Center, its residents and staff, testified at trial regarding the services. The Court noted that two of the witnesses were nurses themselves. Many of the same parents were also members of Families and Friends of Care Facility Residents, a statewide umbrella organization for all of the parent and guardian groups of the human development centers.

Conditions of Care

DOJ alleged that the policies and practices at Conway Development Center departed from generally accepted professional standards and residents were subjected to abuse and neglect, unconstitutional use of restraints, and unprofessional levels of psychological and medical services. DOJ also alleged that the Center’s procedures used to prevent choking, aspiration pneumonia, fractures, decubitis ulcers and other injuries were subpar, and that residents died prematurely. The Court reviewed in detail the testimony of the experts, Center staff and parents on each of the allegations and concluded that the DOJ experts were holding Center staff to a “best practices” standard as opposed to the standard in Youngberg v. Romeo, 57 U.S. 307 (1982) that requires proof of a departure from generally accepted professional standards. The Court specifically noted that the Center was certified by the Centers for Medicare and Medicaid Services (“CMS”) and complied with all CMS standards. DOJ’s experts had testified that professional standards in each of the disciplines were constantly changing and one DOJ expert testified that the CMS standards were outdated. The Court therefore found that the DOJ experts had presented no standards with which the Conway staff could be expected to comply, nor did the experts present any benchmarks to compare the Center’s alleged deviations involving, for example, the numbers of abuse or neglect complaints, choking incidents or aspiration pneumonia with other comparable facilities. In fact, the Court found that one of DOJ’s experts “had no formal education in any field relevant to her testimony,” Opinion at 28, and that another expert “presented no evidence that convinced the Court that she was qualified to testify as an expert in any area other than occupational therapy.” Opinion at 83. Applying the Youngberg standards to this case, the Court held that “[e]ven if the professional judgment of some or all of the plaintiff’s experts were better than the professional judgment of some or all of the professionals at Conway Human Development Center, the evidence does not prove that decisions of the latter represent such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that professional judgment was not actually exercised.” Opinion at 133-134.

Americans with Disabilities Act

DOJ also alleged that Conway Developmental Center was violating the integration mandate of the Americans with Disabilities Act by failing to provide services, programs and activities in the most integrated, least restrictive setting appropriate to the needs of qualified individuals with disabilities as upheld in Olmstead v. Zimring, 527 U.S. 581 (1999). DOJ also alleged that the Center’s staff failed to provide parents and guardians with adequate information about other services that DOJ considered more integrated, and that staff did not exercise professional judgment in determining the most integrated setting appropriate for residents.

The evidence established that Arkansas participates in and serves 4083 individuals in the Home and Community Based Waiver program, or four times the number of individuals served in its training centers. In 2007, there were approximately 700 persons on its waiver waiting list, and as of April 2010, that number had risen to 1400. By the time of trial, the waiting list included 1600-1700 people. The evidence revealed that if a parent or guardian of a resident in a developmental center sought a waiver placement, that resident went to the top of the waiting list. The superintendent of Conway Development Center testified that many or all of the Center’s residents could be served under the waiver with the proper supports and if resources were sufficient. The evidence also demonstrated though that from June 2007 to July 2009, only 18 residents were discharged.

After considering all of the evidence, the Court held that the terms “restrictive” and ”integrated” in the ADA refer to the level of interaction disabled individuals have with nondisabled persons. It then found that the Center provided a significant number of opportunities for individuals to interact with people in the community, sponsoring 305 off-campus activities, including some work opportunities, attendance at movies, eating out, bowling, shopping, fishing, going to parks, going to the state fair, going to the library, attending athletic events, attending church, and participating in the Special Olympics. The Court also heard evidence that nondisabled volunteers visited and worked with residents in about 592 on-campus activities held the previous year, in addition to unrestricted visits permitted from families and friends. The Court also found that individuals in community settings, including those residing in individual apartments had no more contact with nondisabled individuals than did those residing at the Conway Developmental Center. The Court stated, “just as it is an error to assume that because Conway Human Development Center is an institution, its residents have no interaction with nondisabled person, so too is it an error to assume that a community placement ipso facto precludes the possibility of isolation or automatically provides more interaction with nondisabled persons than an institutional setting.” Opinion at 109. The Court noted that no evidence was presented that the Center refused to discharge a resident when requested by the parent or guardian.

Before each annual interdisciplinary team meeting, the Center sent the parent or guardian a brochure explaining services available under the waiver program with a list with contact information of waiver providers in the state and in the county where the resident’s family resided. The Center also sent the parent or guardian a choice of services form on which the parent or guardian indicated whether they wanted to receive services through the waiver program or at the Center. In addition, the Center invited providers to attend meetings of the Friends and Families of Care Facilities and whenever there was a vacancy in a home in a resident’s community, the Center notified the family. The Court thus found that the Center adequately informed parents and guardians of the nature and scope of the home and community based waiver program and provided them with a comprehensive list of waiver providers.

The Court also found that the interdisciplinary team discussed whether the Center was the least restrictive most integrated placement at each annual team meeting and made sure the parent or guardian had received the brochure and list of waiver providers. The Court therefore found staff members at the Center made professional judgments in determining the least restrictive placement appropriate for each resident, even though staff and families agreed that the professionals often did not recommend placement with a waiver provider unless requested to do so by the parents or guardians.

Impact on Virginia

DOJ notified Virginia on February 10, 2011 of the results of its investigation finding that Virginia and Central Virginia Training Center are also violating the integration mandate in Americans with Disabilities Act, making most of the same allegations it made in its losing case against Arkansas: http://www.justice.gov/crt/about/spl/documents/cvtc_findlet_02-10-2011.pdf. With DOJ having lost the Arkansas case, Virginia may now have greater leverage in its negotiations with DOJ that it seemed to have lost when the State of Georgia agreed in October 2010 when faced with a similar federal court complaint to close all of its facilities for individuals with intellectual disabilities rather than go to trial.

DOJ had also previously launched a CRIPA investigation in 2008 at Central Virginia Training Center alleging it had probable cause to believe that CVTC was not protecting residents there from harm and was providing professionally inadequate psychological and psychiatric services. It expanded its investigation in 2009 to investigate CVTC’s nutrition services and occupational therapy and physical therapy programs, alleging many of the same violations at issue in the Arkansas lawsuit. After three on-site visits in 2008 and 2009, DOJ has yet to issue a “findings” letter detailing the results of that investigation.

Most DOJ investigations result in settlement agreements with the state that are filed with the court either before the original complaint is filed or before going to trial. Settlements are reached because of the extraordinary expense involved in month-long trials involving prior document-intensive discovery, the hiring of experts in every discipline under attack and the prolonged diversion of staff time and resources away from the delivery of care to individuals. Whether Virginia will be able to significantly increase its waiver program and switch from an institutionally-based system of care to a community-based system under a reasonable settlement agreement and or will decide to litigate remains to be seen as DOJ and Virginia continue their negotiations.

Delaware Settles with DOJ Following ADA Investigation

In an investigation under the Americans with Disabilities Act similar to that involving Arkansas and Virginia described above, the United States Department of Justice (“DOJ”) announced its settlement with the State of Delaware on July 6, 2011 involving the Delaware Psychiatric Center, the State’s one psychiatric hospital. DOJ initiated its investigation in November 2007, completed on-site inspections of the hospital and community placements in May 2008 and August 2010, and issued its “findings” letter notifying the State of its violations in November 2010. The Settlement Agreement may be accessed at: http://www.ada.gov/delaware.htm.

Under the Settlement Agreement, Delaware agrees to develop an extensive array of community crisis intervention, treatment and support services for persons with serious and persistent mental illness who are at the highest risk of unnecessary institutionalization. Services include implementation of a clinically staffed crisis hotline 24 hours per day, 7 days per week; development of mobile crisis teams, crisis walk-in centers, crisis stabilization teams, crisis apartments, assertive community treatment teams, intensive case management services, case management services, supported housing, supported employment and family and peer support services. Development of all services must be accomplished on a strict timeline, leading to July 1, 2016 when Delaware must substantially comply with all of the terms of the Settlement Agreement. One service – supportive housing – includes the provision of housing vouchers or subsidies and bridge funding for all who need it by July 1, 2016. In addition, transition planning to return individuals to the community must initiated for all persons being admitted to the hospital or an IMD within five days of admission and for all current patients within 30 days. Delaware must meet the transition planning deadlines for 95% of all such individuals by July 1, 2016.

Delaware must also maintain a quality assurance and performance improvement system “with a goal to ensure that all mental health services funded by the state are of good quality and are sufficient to help individuals achieve positive outcomes, including increased integration and independence, and self-determination in all life domains.” It must also maintain a risk management system that proactively identifies and addresses risks of harm and complete all root cause analyses when significant incidents occur within 10 days and develop a corrective action plan.

The Settlement Agreement also designates Robert Bernstein, formerly a DOJ expert in CRIPA investigations involving the Northern Virginia Mental Health Institute and Western State Hospital in Virginia, as monitor. The State must pay all the expenses of the monitor who may hire staff and consultants to monitor Delaware’s compliance with the Settlement Agreement and submit bi-annual public reports concerning its progress. Delaware must immediately deposit $100,000 to the Settlement Fund to pay the monitor’s expenses and maintain that balance throughout the duration of the Settlement Agreement. The monitor will have unlimited and confidential access to all facilities, staff, and individuals being served, records and data collected. In any future court proceedings in which DOJ does not agree that Delaware has substantially complied with the Settlement Agreement, the burden of proof rests on Delaware to prove its compliance.

Prior Determination That Defendant Not a Mentally Disordered Sex Offender Not Bar to Later Civil Commitment as Sex Offender

The Nebraska Supreme Court held on May 20, 2011 that a 1991 determination at the time of a defendant’s conviction and sentence that he was not a “mentally disordered sex offender” under Nebraska’s sex offender law then in effect was not res judicata barring commitment proceedings in 2010 under Nebraska’s current Sex Offender Commitment Act. In re Interest of D.H., 281 Neb. 554, 797 N.W.2d 263 (Neb. 2011). In so deciding, the Court followed a similar California case that found that a 1982 determination that the defendant was not a sex offender did not preclude a civil commitment proceeding 10 years later because the issue was the mental health of the defendant as he approached release, not as it existed at the time of his conviction. People v. Carmony, 99 Cal.App. 4th 317, 120 Cal.Rptr.2d 896 ( 2002). The Nebraska Court held that the Act provides for assessment of the defendant’s mental health, risk of recidivism and threat to public safety as he approaches release. Based upon the changeable nature of mental health and dangerous determinations, the assessment is not res judicata because the issue presented is not the same as that litigated at the time of his 1991 sentencing.

Ninth Circuit Declines to Find Ineffective Assistance of Counsel for Attorney’s Strategic Decision Not to Seek Third Neurological Exam in Capital Case Even Though Exam Recommended

The Ninth Circuit Court of Appeals reversed the decision of the Idaho federal district court that had granted a new sentencing hearing to a defendant sentenced to death on the grounds of ineffective assistance of counsel in this habeas corpus case. Leavitt v. Arave, 2011 U.S. App. LEXIS 9944 (9th Cir. May 17, 2011). The Court found that the defendant’s attorney made a reasonable strategic decision at the sentencing phase not to seek another neurological examination. The defendant was convicted of a gruesome stabbing murder in which he removed the victim’s sex organs. The expert who examined the defendant diagnosed him with antisocial personality disorder and intermittent explosive disorder, but recommended a follow-up MRI following an inconclusive neurologic examination to rule out an organic disorder. The trial judge who was deciding the sentence demonstrated hostility toward hearing any further psychiatric evidence, stating that such evidence tended to hurt more than help the defendant. The judge intimated that the evidence indicated an inclination on the part of the defendant to commit further violent acts. The Court held that the defendant’s counsel made the strategic decision to try to convince the judge that his client was a “good guy” even though he was aware of the possibility of brain damage as mitigating evidence. He was therefore not ineffective, as the district court had found, for failure to thoroughly investigate the defendant’s mental health condition.

California Supreme Court Finds No Denial of Due Process in Requiring Convicted Defendant to Prove Incompetence to Stand Trial

The California Supreme Court has determined that a defendant is not denied due process of law when he is required to carry the burden of proving that he was incompetent to stand trial at a retrospective hearing to determine his competency. People v. Ary, 120 Cal. Rptr.3d 431, 246 P.3d 322 (2011). The defendant in this case was charged with murder and other related felonies. At trial, the defendant moved to suppress his confession and presented psychiatric evidence that he was mildly mentally retarded. The trial court found that he had voluntarily waived his Miranda rights, but found that the confession was coerced and suppressed it. The jury convicted the defendant of murder but was unable to decide upon whether to recommend the death penalty. The court then declared a mistrial on the sentencing issue and sentenced him to life in prison.

On appeal, the Intermediate Court of Appeals determined that the trial judge had erred in failing to evaluate whether the defendant was competent to stand trial and remanded the case for such a determination first as to whether sufficient evidence existed to determine whether the defendant had been competent to stand trial and, if so, to conduct a competency hearing. The trial court found upon remand that evidence of the defendant’s mental condition was still available and it was feasible to retrospectively determine his competency at the time of the original trial, and proceeded to conduct the competency hearing. Over the defendant’s objection that the prosecution should prove beyond a reasonable doubt that he was competent to stand trial, the judge placed the burden on the defendant to prove by a preponderance of the evidence that he was mentally incompetent when tried. After a retrospective hearing, the trial court found the defendant competent.

On appeal, the Intermediate Court of Appeals concluded that, in contrast to the burden of proof allocation at competency hearings held before or during trial, at a retrospective competency hearing federal due process principles require the prosecution to bear the burden of proving by a preponderance of the evidence that the defendant is competent to stand trial. The Attorney General’s Office appealed to the California Supreme Court which reversed finding that the trial court appropriately placed the burden on the defendant. The California Supreme Court noted that a defendant is presumed competent and that the United States Supreme Court had previously upheld California’s imposition of the burden at the pretrial stage on the defendant to prove incompetence by a preponderance of the evidence. Medina v. California, 505 U.S. 437 (1992). It was therefore appropriate in retrospective hearings to also place the burden on the defendant. In order to impose such a burden post-trial and for the court to consider such an issue, however, the Court held that there must be sufficient evidence available to reliably determine defendant’s mental competence after the fact.

Filed Under: Developments in Mental Health Law, Professional Info Tagged With: ,

Developments in Mental Health Law, Vol. 30 (5)

July 11, 2011 By Comments

 

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rensicpsychology.org/wp-content/uploads/2011/05/developmentsnewsetter.jpg” alt=”" width=”169″ height=”127″ />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 5, edited by Jane D. Hickey.

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

US Supreme Court Orders California to Reduce Prison Population for Failure to Provide Constitutionally Adequate Treatment for Inmates with Serious Mental Illness

In a 5-4 decision written by Justice Kennedy, the United States Supreme Court upheld the decision of a three-judge panel entered under the Prison Litigation Reform Act of 1995 (“PLRA”) ordering California to reduce its prison population by 137.5% of its original design capacity, or by 46,000 prisoners, within two years in order to address severe and unconstitutional conditions related to the delivery of mental health and medical care to California’s 156,000 inmates. Brown, Governor of California, et al. v. Plata, et al., No. 09-1233, decided May 23, 2011. Slip opinion found at: http://www.supremecourt.gov/opinions/10pdf/09-1233.pdf

This decision is the result of two consolidated federal class action suits challenging the mental health and medical conditions in California’s prisons. The first, Coleman v. Wilson, 912 F. Supp. 1282 (E.D. Calf. 1995), was filed in 1990 alleging that deplorable mental health care constituted cruel and unusual punishment under the Eighth Amendment. After a 39-day trial, the court found the prisons severely and chronically understaffed with no method for ensuring competence of staff. The prisons failed to implement necessary suicide precautions due to severe understaffing and mentally ill inmates languished for months and years without access to care, suffering severe hallucinations and decompensating to catatonic states. After 12 years, a Special Master appointed to oversee remedial efforts reported that after slow improvement, the status of mental health care was again deteriorating. A rise in the prison population had led to greater demand for care, and existing program space and staffing levels were inadequate to keep pace. In 2006, at the time of trial before the three-judge panel, the suicide rate was approaching one per week with the suicide rate nearly 80% higher than the national average for prison populations. Suicidal inmates were held for prolonged periods in telephone booth-size cages without toilets. Slip Opn. at 11. According to the Special Master, 72.1% of suicides involved “some measure of inadequate assessment, treatment, or intervention, and were therefore most probably foreseeable and/or preventable.” Slip Opn. at 12. In 2007, the rate had risen to 82% and by 2010 there had been no improvement.

A second class action, Plata v. Brown, was filed in 2001, in which California conceded that deficiencies in prison medical care violated the Eighth Amendment. When the State had not complied with the remedial injunction issued, the Court appointed a Receiver to oversee the remedial efforts. Three years later, the Receiver described equally deplorable continuing deficiencies in medical care. In one prison, up to 50 sick inmates were held together in one 12 foot x 20 foot cage up to five hours awaiting treatment. The Coleman and Plata plaintiffs thereupon requested their respective district courts to convene a three-judge panel to order reductions in the prison population.

The Supreme Court held that if a prison deprives inmates of their basic needs for sustenance, including adequate mental health and medical care, courts have a responsibility to remedy the Eighth Amendment violations. Under the PLRA, only a three-judge panel may enter an order imposing a population limit and only after a district court has entered an order for less intrusive relief that has failed after the state has been given reasonable time for compliance. Before doing so, that court must also first consider a range of options, and then find by clear and convincing evidence that crowding is theprimary cause of the violations, no other relief will remedy the situation and the relief is narrowly drawn and the least intrusive means to correct the violations. The court must also consider any adverse impact such a population limit will have on public safety and the operation of the criminal justice system. The Supreme Court thus held that the three judge-panel had properly heard evidence of then-current conditions and that no other relief short of imposing a population limit would remedy the situation. California indicates that it is proceeding to implement measures to reduce its prison population, but with the State’s severe budget crisis, it remains to be seen how effective its efforts will be.

Justice Scalia filed a dissenting opinion in which Justice Thomas joined. Justice Alito also filed a dissenting opinion in which Chief Justice Roberts joined.

Ninth Circuit Finds NGRI Acquittee May Appeal Rulings Made in Criminal Proceeding

Unlike the Arkansas Supreme Court in Hughes v. State of Arkansas, 2011 Ark. 147; 2011 Ark. LEXIS 134 (April 7, 2011) and reported in Issue 4 of Developments in Mental Health Law, the Ninth Circuit Court of Appeals found that federal courts have statutory authority to hear the appeal of a defendant in a criminal case who was found not guilty by reason of insanity. United States v. Vela, 624 F.2d 1148 (9th Cir. 2010). In the Ninth Circuit case, a defendant found NGRI attempted to appeal the trial court’s ruling refusing to dismiss the indictment against him and another ruling prohibiting him from presenting a diminished capacity defense. The defendant had been charged with assault of a federal officer, having stabbed a customs and border protection chief in the chest with a knife. He argued that the indictment should have been dismissed for failure to contain an element of specific intent and the verdict reversed for the trial court’s failure to instruct the jury on a defense of diminished capacity. The defendant also raised the insanity defense and presented expert testimony in support of that defense and the jury returned a NGRI verdict. He argued, however, that the trial court denied him the opportunity for an outright acquittal. The government argued that a verdict of not guilty by reason of insanity does not result in a judgment of conviction subject to appeal. It also argued that there was no final decision from which to appeal a NGRI verdict because the verdict did not result in a sentence.

The Ninth Circuit recognized that the right of appeal is purely statutory, but found that 28 U.S.C. § 1291 affords jurisdiction to review all final decisions of district courts. The Court noted that the final decision in a criminal case is not triggered until there is a conviction and imposition of a sentence. But here the Court found that the lack of a sentence does not preclude finality because the criminal case has terminated. The Court further found that the defendant’s ability to appeal his civil commitment does not provide an adequate substitute for an appeal of the issues raised in his criminal trial and indeed the defendant might be precluded from raising those issues in a civil commitment appeal.

As you may recall from Issue 4 of Developments in Mental Health Law, the Arkansas Supreme Court held by contrast that a defendant who was acquitted of criminal offense as a result of mental disease or defect and committed to a mental health facility could not appeal his acquittal because the Court only had jurisdiction to hear appeals of criminal “convictions.” The defendant had appealed on the grounds that the court erred by finding he committed the offense of terroristic threatening and by compelling him to use the affirmative defense of mental disease or defect, thereby depriving him of his constitutional right of trial by jury. Similarly, Virginia does not recognize a right of appeal unless such a right is specifically provided by statute. It is doubtful therefore whether the Virginia Court of Appeals or Virginia Supreme Court would entertain such an appeal in a similar case absent a clear statutory provision authorizing that appeal.

Ninth Circuit Sets Out Test for Determining When Mental Impairment Tolls Statute of Limitations for Filing Federal Habeas

The Ninth Circuit Court of Appeals has established a 2-part test to determine when a prisoner’s mental impairment tolls the one-year statute of limitations for filing a federal habeas corpus petition under the Antiterrorism and Effective Death Penalty Act of 1996. Bills v. Clark, 628 F.3d 1092 (9th Cir. 2010). The United States Supreme Court had previously upheld Eleventh Circuit determinations finding that the one-year statute of limitations must be tolled if equitable circumstances exist beyond a prisoner’s control preventing him from filing on time. The prisoner must establish that 1) he has been pursuing his rights diligently, and 2) some extraordinary circumstance stood in his way. Holland v. Florida, 560 U.S. __, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010). In determining whether a mental disability constitutes such an extraordinary circumstance, a petitioner must show that the disability severely impaired his ability to meet the filing deadline despite diligent efforts to do so.

In this case, while serving a sentence for other charges, the prisoner was charged with possession of a sharp instrument by a state prisoner and was sentenced to 25 years to life. The prisoner appealed his conviction and after the time expired for a petition for certiorari to the United States Supreme Court, he pursued state habeas proceedings. Thereafter, he filed a late habeas petition in federal court alleging ineffective assistance of counsel. Noting the unusually long sentence, the court appointed counsel to represent him. Counsel argued that the petition should not be dismissed as untimely filed due to the prisoner’s inability to read and write, neurological deficits, borderline to mild mental retardation, concurrent psychosis and lack of assistance available to him. The prisoner’s expert psychologist testified that he had been diagnosed as bipolar with a variety of behavioral and cognitive disorders, and that he could not understand his legal rights sufficiently to make rational choices. The record reflected, however, that the prisoner had prepared a number of administrative and judicial filings, including a pro se habeas petition in 2000 and an administrative complaint regarding medical care in 2001. He had also represented himself pro se at his trial on this charge. The district court denied the late filing finding that his mental capacity was not sufficiently severe to impede his filing of a timely petition based on his second grade reading level and its finding that a jail house lawyer had been available to help with the filing of the petition.

In setting out the standard for review, the Ninth Circuit stated that there must be a causal connection between the petitioner’s mental disability and the ability to file the petition. The Court determined that the relevant question is whether the mental impairment caused the untimely filing and set out the following two-part test:

1. The petitioner must show that the mental impairment was an extraordinary circumstance beyond his control demonstrating an impairment so severe that either

a. The petitioner was unable to rationally or factually personally understand the need to timely file, or
b. The petitioner’s mental state rendered him unable to personally prepare a habeas petition and effectuate its filing.

2. The petitioner must show diligence in pursing claims to the extent he could understand them, but that the mental impairment made it impossible to meet the filing deadline under the totality of the circumstances, including whether there was reasonably available access to assistance.

The Court found that this standard “flows naturally” from the Supreme Court’s rulings concerning competency to stand trial in Dusky v. United States, 362 U.S. 402 (1969); competency to plead in Godinez v. Moran, 509 U.S. 389 (1993);and competency to represent oneself in Indiana v. Edwards, 554 U.S. 164 (2008). In other words, the court must determine whether the petitioner is competent to do what the law requires. In examining the totality of the circumstances, the court:

1. must find that the petitioner has made a non-frivolous showing that he had a severe mental impairment during the filing period that would entitle him to an evidentiary hearing;
2. determine after considering the record whether the petitioner satisfied his burden that he was in fact mentally impaired;
3. determine whether the petitioner’s mental impairment made it impossible to timely file on his own; and
4. consider whether circumstances demonstrate the petitioner was otherwise diligent in attempting to comply with the filing requirements.

The Ninth Circuit remanded the case for the district court to apply the facts of the case to the standard articulated in its decision.

Tennessee Supreme Court Rules Experts Can Testify to Reflect Capital Defendant’s Actual Cognitive Abilities in Addition to Consideration of IQ Scores

The Tennessee Supreme Court has held that under Tennessee law a defendant can present expert testimony to show that his test scores do not accurately reflect his actual cognitive abilities for purposes of raising a defense of intellectual disability to a sentence of death. Coleman v. State, 2011 Tenn. LEXIS 319 (April 11, 2011). The defendant in this case had been convicted of first degree murder and sentenced to death over 30 years ago. Following the decision in Atkins v. Virginia, 536 U.S. 304 (2001), prohibiting imposition of the death penalty for persons with mental retardation, the inmate filed a habeas petition alleging that he suffered from an intellectual disability. The evidence presented at his habeas hearing indicated, among other things, that his mother had an intellectual disability and history of mental illness, that his home was violent, chaotic and overcrowded, that his mother drank, engaged in prostitution and abused him, and that his father had spent most of his life in prison and had little-to-no involvement in his life. The petitioner had failed 1st, 2nd, 3rd and 7th grade and was only “socially promoted” to higher grade levels, and that he was teased by his fellow classmates. He was lonely and stigmatized as a child and intellectually and socially behind his peers. He was viewed as “dull” by police officers with whom he had many encounters as a juvenile.

Even though eight other state statutes limit the assessment of intellectual disability to scores on IQ tests, the Tennessee Supreme Court found that Tennessee law does not limit the evidence to test scores. The Tennessee statute requires a “functional” intelligence quotient of 70 or below, not just a test score of 70 or below. The Court therefore concluded that its General Assembly wanted courts to make fact-intensive and complex decisions with assistance from experts in the field because “functional” IQ cannot limited to raw IQ scores. Trial courts may therefore receive and consider any relevant and admissible evidence as to whether the defendant’s IQ is 70 or below. It noted that under the Flynn effect recognized by mental health experts, IQ test scores tend to increase over time. Clinical judgment is therefore important in diagnosing and assessing intellectual disability in borderline cases, especially since the standard of error measurement is generally 3-5 points. The Court therefore remanded the case to the trial court to consider expert testimony in determining the petitioner’s functional IQ.

Filed Under: Developments in Mental Health Law, Professional Info Tagged With: ,

Developments in Mental Health Law, Vol. 30 (3)

June 7, 2011 By Comments

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.

Filed Under: Developments in Mental Health Law, Professional Info Tagged With: ,

Developments in Mental Health Law, Vol. 30 (2)

June 4, 2011 By Comments

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 2, edited by Jane D. Hickey.

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

Virginia Supreme Court Permits SVP to Rescind Refusal to Cooperate; General Assembly Establishes Procedure

On November 4, 2010, the Virginia Supreme Court reversed the finding of the Pittsylvania County Circuit Court and remanded for a new trial a case decided under the Sexually Violent Predator Act. Hood v. Commonwealth, 280 Va. 526, 701 S.E.2d 421 (2010). The Supreme Court determined that the circuit court’s decision that it had no discretion to permit a prisoner to rescind his refusal to cooperate with the Commonwealth’s mental health expert during the assessment examination violated the respondent’s procedural due process rights. The Court held that Virginia Code § 37.2-901 permitted, but did not require, the trial court to admit evidence of the respondent’s refusal and bar the respondent from introducing his own expert evidence. Virginia Code § 37.2-907(A) relating to the appointment of experts must be read in conjunction with § 37.2-901, even though it states that if the respondent refuses to cooperate with the examination under § 37.1-901, any expert appointed shall not be permitted to testify at trial nor any report be admissible. The Supreme Court held that due process requires the trial court to consider the circumstances surrounding the respondent’s refusal to cooperate and whether the respondent is currently ready to cooperate. The trial court thus has discretion as to what limits to place on admissibility of evidence. In this case, the respondent refused to cooperate before counsel was appointed to represent him and he was currently expressing a desire to cooperate. Virginia appears to be the only state that has such an evidentiary provision in its SVP Act.

In response to this decision, the General Assembly passed House Bill 1698 (Athey) and Senate Bill 1275 (Obenshain) on February 23, 2011, establishing procedures surrounding the respondent’s decision to rescind any refusal to cooperate. The respondent may rescind his refusal to cooperate and elect to cooperate with the mental health examination within 21 days of retention or appointment of counsel. Counsel for the respondent must provide written notice of the respondent’s election to cooperate to the court and the attorney for the Commonwealth within 30 days of the appointment or retention of counsel. The probable cause hearing is then postponed until 30 days after receipt of the mental health examiner’s report. If the respondent thereafter refuses to cooperate with the mental health examination, the court is required to admit evidence of such failure or refusal and to bar the respondent from introducing his own expert evidence. These bills are awaiting signature by the Governor.

Court Authorizes Lay Testimony of Defendant’s Behavior for Three Years Since His Return from Iraq to Support Insanity Defense

In a case from Oklahoma, the 10th Circuit Court of Appeals has overturned the conviction of an Iraqi war veteran convicted of three armed robberies and an attempted armed robbery and ordered a new trail. United States v. Goodman, 2011 U.S.App. LEXIS 1760 (10th Cir. Jan. 28, 2011). Relying solely on the insanity defense, the defendant who suffered a mental breakdown on the battle field, argued and the 10th Circuit agreed, that the district court improperly limited lay testimony to observations of his behavior immediately before and after his eight-day robbery spree rather than permitting testimony about his erratic behavior for the three years since his return from Iraq. The Court found that the temporal limits imposed were improper because the evidence excluded was not too stale. The evidence was only at most three years old and part of a continuous pattern beginning with his post-combat psychiatric treatment. The Court also held that the trial court improperly precluded opinion testimony by lay witnesses under Federal Rule of Evidence 704(b). Rule 704(b) only bars experts from offering opinions about a criminal’s state of mind. Rule 704(a) permits lay opinion on the ultimate issue before the court.

Civil Rights Complaint Alleging 4th Amendment Violation in Death of Man with Bipolar Disorder Dismissed

The 6th Circuit Court of Appeals upheld the trial court’s dismissal of a § 1983 complaint brought by the widow of a man with bipolar disorder against two city police officers alleging violation of the Fourth Amendment’s prohibition against unlawful search and seizure that resulted in his death. Johnson v. City of Memphis, 617 F.3d 864 (6th Cir. 2010). The plaintiff called 911 seeking assistance for her husband, but hung up and left the house before the operator answered. Receiving no response to a follow-up call, the operator dispatched two patrol officers to the house. Upon arrival, the officers found the door open and after announcing their presence and receiving no response, entered the house with their weapons drawn. The man jumped on one officer grabbing his gun; a scuffle ensued; and the plaintiff’s husband was killed. The Court held that the entry met the exigent circumstances emergency aid exception to the 4th Amendment’s prohibition against unlawful searches and seizures based upon the factual circumstances in this case.

Tennessee Dismisses EMTALA Complaint in Suicide Case

A United States District Court in Tennessee dismissed this lawsuit brought by the executor of Joshua Ashley Burd against Lebanon HMA, Inc. under the Emergency Medical Treatment and Active Labor Act (EMTALA), 42 U.S.C § 1395dd. Burd ex rel. Burd v. Lebannon HMA, Inc., 2010 U.S.Dist. LEXIS 124696 (M.D. Tenn. Nov. 23, 2010). Burd was initially brought to the emergency room after attempting suicide by hanging himself. Finding him to have high “suicide lethality” and testing positive for cocaine and opiates, Burd was committed to Middle Tennessee Mental Health Institute, a state mental health facility. A psychiatrist at the facility found him not to be a suicide risk and did not admit him. A police officer checking on his condition at home later that evening found an outstanding arrest warrant and learned that Burd had consumed two bottles of vodka. Believing he was a suicide risk, the officer returned Burd to the emergency room. Emergency room staff assessed him and determined he was suffering from acute situational anxiety, not an emergency medical condition, and discharged him. Burd was found dead the next morning from hanging. The trial court dismissed the EMTALA claim finding that the plaintiff had presented no proof of improper motive on behalf of emergency room staff. It found that there was no evidence that the decedent would have been assessed differently had he had health insurance. The court also found that if hospital staff does not have actual knowledge that an emergency medical condition exists, EMTALA does not apply. Any allegations related to medical malpractice must be decided in state court under state malpractice law

Filed Under: Developments in Mental Health Law, Professional Info Tagged With: ,

Developments in Mental Health Law, Vol. 30 (1)

June 2, 2011 By Comments

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.

Filed Under: Developments in Mental Health Law, Professional Info Tagged With: ,
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