JUDICIAL ORIENTATION NEW COUNTY JUDGES: MENTAL HEALTH. Topics. Hypothetical Scenarios

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1 JUDICIAL ORIENTATION NEW COUNTY JUDGES: MENTAL HEALTH February 6, 2015 Professor Brian Shannon Texas Tech University School of Law Topics Serious mental illnesses Emergency Detention Civil Commitment Process Medication Hearings Overlap with Criminal Law Hypothetical Scenarios Ann Ann II Ann III Etc. 1

2 Serious Mental Illness: Typical Diagnoses Schizophrenia Bipolar Disorder Major depressive illness Schizoaffective Disorder Note other psychological disorders H&S Code Definition "Mental illness" means an illness, disease, or condition, other than epilepsy, senility, alcoholism, or mental deficiency, that: (A) substantially impairs a person's thought, perception of reality, emotional process, or judgment; or (B) grossly impairs behavior as demonstrated by recent disturbed behavior. Schizophrenia A brain disease that affects a person s thinking and judgment, sensory perception and the ability to interpret and respond to situations appropriately. Symptoms can include poor reasoning, disconnected and confusing language, hallucinations, delusions, and deterioration of appearance and personal hygiene. 2

3 Bipolar Disorder Brain disorder that causes extreme shifts in mood, energy, and functioning. Bipolar disorder, also known as manic depressive illness, is characterized by episodes of mania and depression that can last from days to months. Major Depression A serious medical illness. Unlike normal emotional experiences of sadness, loss, or passing mood states, major depression is persistent and can significantly interfere with an individual s thoughts, behavior, mood, activity, and physical health. It is the leading cause of disability in the U.S. Schizoaffective Disorder A brain illness marked by a co-occurrence of symptoms of major depression or mania concurrent with the symptoms of schizophrenia 3

4 Intellectual Disability Ch. 592 H&S Code intellectual disability" means significantly subaverage general intellectual functioning that is concurrent with deficits in adaptive behavior and originates during the developmental period (formerly identified as mental retardation). Typically viewed as a disability that occurs before age 18. It is characterized by significant limitations in intellectual functioning and adaptive behavior as expressed in conceptual, social and practical adaptive skills. It is diagnosed through the use of standardized tests of intelligence and adaptive behavior. Why do we need court-ordered MH services? Voluntary treatment is preferred, but often not sought What is anosognosia? (i.e., lack of insight or awareness) 4

5 Civil Proceedings Emergency Detention Order of Protective Custody Temporary Commitments 90 days Outpatient option Extended Commitments Medication Hearings Emergency Detention Warrantless With Magistrate s Warrant Law Enforcement First Responders 5

6 Law Enforcement Discretion Health & Safety Code Section : Apprehended persons with mental illness can be taken to a mental health facility instead of jail Peace officer may take a person into custody without a warrant if reasonable belief that: Person is mentally ill; and Because of mental illness there is a substantial risk of serious harm to the person or others unless immediately restrained Law Enforcement Discretion Health & Safety Code Section : Peace officer can form belief from a representation of a credible person, or on basis of conduct Peace officer shall immediately transport the person to inpatient mental health facility or facility deemed suitable by MHMR Standardized emergency detention forms 2013 legislation 6

7 Trained Officers? CIT Crisis Intervention Training Mental Health Deputy Program Emergency Detention With Magistrate s Warrant Written application by an adult Judge or magistrate (often a JP) to sign if there is reasonable cause to believe person has MI, and is at risk of serious harm to self, others, or evidences severe emotional distress and deterioration 7

8 Emergency Detention Purpose Standard 12 hours must be examined by a physician 48 hours/weekends Order of Protective Custody Purpose Timing Appoint attorney when? who? Probable cause hearing 72 hours unless waived days; significance of duration Civil Commitments Temporary: 90 days (up to) Outpatient option Two doctors; one should be a psychiatrist Hearing without a jury is the default Good forms/benchbook 8

9 Civil Commitments Extended: 1 year. and then another Jury trial is the default Bexar County Alternative Model Tips Get to know the CEO of your community MHMR Center Medication Hearings Why? Section , etc. H&S Code Based on doc s application May be (and typically is) held the same day as the commitment hearing 9

10 (a-1) The court may issue an order under this section only if the court finds by clear and convincing evidence after the hearing: (1) that the patient lacks the capacity to make a decision regarding the administration of the proposed medication and treatment with the proposed medication is in the best interest of the patient; OR (a-1) (2) if the patient was ordered to receive inpatient mental health services by a criminal court with jurisdiction over the patient, that treatment with the proposed medication is in the best interest of the patient and either: (A) the patient presents a danger to the patient or others in the inpatient mental health facility in which the patient is being treated ; or (B) the patient: (a-1)(2) (i) has remained confined in a correctional facility for a period exceeding 72 hours while awaiting transfer for competency restoration treatment; and (ii) presents a danger to the patient or others in the correctional facility as a result of a mental disorder or mental defect. 10

11 ARREST/BOOKING Overlap with Criminal Law Upon booking, jail must conduct a continuity of care query In 2013, over 40% of bookings into local Texas county jails were for individuals who had either an exact or probable CCQ match, indicating some prior contact with the public mental health system, whether at a CMHC or a state hospital ARREST/BOOKING Screening A mental health screening must be conducted for every inmate at the point of booking into the local jail. Required by the Jail Standards Comm n. Standardized form. ARREST/BOOKING 11

12 ARREST/BOOKING ARREST/BOOKING Mental Health Services at the Jail? Required But, inconsistent around the state DIVERSION DIVERSION OF OFFENDERS Pertinent Legislation Article 16.22, Code of Criminal Proc., Evaluations Article , Bonds/Treatment Conditions Civil Commitment Provisions Article 42.12, Community Supervision 12

13 Article 16.22: Early Identification Sheriff must notify a magistrate within 72 hours upon receiving credible information that may establish reasonable cause to believe that a defendant has a mental illness or intellectual disabilities Includes observation of behavior at arrest Article 16.22: Early Identification Examination is to be conducted by a qualified expert in mental illness or intellectual disabilities or local MHMR authority Written report to include observations and findings, recommended treatment, and any need for a full competency exam Article findings in report: Does the person have a mental illness or intellectual disabilities? Is there clinical evidence to support a belief that defendant should undergo a complete competency evaluation? Recommended treatment? 13

14 Article : Release Without Bail Unless good cause is shown, magistrates MUST release on personal bond alleged offenders with mental illness or intellectual disabilities who are charged with non-violent offenses and who have not been previously convicted of a violent offense Magistrate shall impose a treatment condition, unless good cause is shown for not requiring treatment tied to examination report Civil Commitment: Charges Pending Pre-1995: Not available except for Emergency Detention or OPC Since 1995: May be used for nonviolent offenses Commitment is an option if charges do not involve an act, attempt, or threat of serious bodily injury to another person Article 42.12, 11(d) Community Supervision Deferred Adjudication Probated Sentence Treatment Conditions After Evaluation Opportunity for plea negotiations & MH Courts 14

15 Criminal Competency: The Dusky Standard & Ch. 46B Defendant must have present ability to consult with attorney, AND Defendant must have a rational and factual understanding of the proceedings Raising the Issue A suggestion of incompetency 2011 legislation No longer a bona fide doubt standard Some evidence from any source A representation from a credible source If Defendant is Incompetent: Commitment for Restoration Charged with a violent offense or not? Where? State hospital? Outpatient? In jail? Individual treatment plan 15

16 Outpatient Competency Restoration Pilots Cost is significantly less than the state forensic hospitals Potential for shorter stays Frees up space on the waitlist for forensic hospital beds, and can help with civil commitment bed availability Problem encountered in Lubbock Know the Time Frames! Misdemeanors 60 days + ONE possible 60 day extension Felonies 120 days + ONE possible 60 day extension But, what if there is a finding that the defendant is unlikely to be restored in the foreseeable future? Know the Time Frames! Have a system for tracking the days! Know the consequences for action & next steps if the defendant is not restored within the maximum time frames Be aware of the possibility of timing out 16

17 What if the Defendant is Unrestored? Subchapter E charges remain pending 46B.102 civil commitment/mental illness Required application of MH Code by criminal court 46B.103 civil commitment/intel. disab. Subchapter F charges dropped Emerging Types of Representation & Judicial Consideration MH Public Defenders MH Private Defenders MH Courts April 2010 Indigent Defense Task Force Report Study focused on programs in three Urban Texas Counties: Tarrant Fort Worth Dallas Travis Austin Study funded by grants from State Justice Institute (Fed l) Texas Task Force on Indigent Defense 17

18 COMMON THEMES RECIDIVISM DALLAS EXPERIENCE 18

19 DALLAS EXPERIENCE TARRANT EXPERIENCE ATTORNEY EXPERIENCE 19

20 Findings: Significant Increases in Long-Term Treatment Engagement Significant Reductions in Recidivism up to 18 months after case disposition No Significant Differences in Pre-trial Jail Days MORE NEEDED E.g., 2012 Harris County Felony MH Court Components: - comprehensive evaluations - minimum 18 month Court participation in multi-phased continuum - frequent appearances before the Judge - regular visits with a specially trained Community Supervision Officer - intensive treatment by mental health professionals - substance abuse treatment for participants with a cooccurring mental health and substance abuse disorder - random alcohol and drug testing THANKS! February 6, 2015 Professor Brian Shannon Texas Tech University School of Law 20