Reprinted with permission of the author.
By Robert J. Kaplan, J.D.
In the course of representing families of mentally ill adults, I have been exposed to a wide range of situations where involuntary treatment is absolutely essential. As critical as involuntary treatment may be in any particular case, though, whether or not involuntary treatment will be ordered comes down to a strict legal and factual analysis of specific civil commitment criteria. Only if the judge, magistrate judge or panel presiding at a civil commitment hearing believes the commitment criteria have been proved, will involuntary treatment be ordered.
In my experience, families who are seeking involuntary treatment for a mentally ill family member are either unaware of the commitment criteria altogether, or are unprepared to present an effective case at the commitment hearing that the commitment criteria have been satisfied. In contrast to the lack of knowledge of family members, however, the difference between obtaining a commitment and failing to obtain a commitment rests often on the ability of the family members present at the commitment hearing to describe the events that precipitated the commitment hearing.
The following are what I believe to be the keys for families to unlocking civil commitment for mentally ill family members:
1. Know the criteria for Commitment:
In Virginia, civil commitment is only available for a person who, due to mental illness, is in need of hospitalization and who presents an imminent danger to self or others, or is so seriously mentally ill as to be substantially unable to care to self, and who is incapable or unwilling to volunteer for treatment.
Generally speaking, a mentally ill family member who is living with his/her family, or who is receiving continuing aid and comfort from the family, will not be in sufficiently bad physical condition to satisfy the "unable to care for self" criteria, which usually requires a physical deterioration approaching the truly disgusting.
Most often, the issue that arises with respect to commitment criteria is the "imminence" of an assault against a family member or a suicide attempt. The witnesses at a civil commitment hearing can often describe moments in the past where the mentally ill family member has done something that was threatening to a family member or himself/herself, but there is frequently a problem connecting that event to the time frame of the commitment hearing. Overcoming this hurdle requires appropriate timing of the call for help, which is the next key to commitment.
2. Know when to call for help:
As with many things in life, timing can be everything when summoning help for a mentally ill family member who needs involuntary treatment. A call for help that is made too soon may not allow sufficient grounds for a civil commitment, while a call that is too late can cause a serious deterioration in the family member’s condition or result in physical harm. Knowing the correct moment to summon help is more art than science, but the following may be worthy of consideration:
Try not to call the police or emergency mental health services unless the mentally ill family member is currently making some outward manifestation of the illness that can be construed as aggressive. First, practically speaking, the police or emergency services are not going to come out multiple times for the same problem, so a call for help should be at the time when it will be most effective. As noted above, the criteria for commitment require that the family member be "dangerous" or substantially unable to care for self. Just because the mentally ill family member is spewing insults, profanity or threats, does not mean that the police or emergency services will determine that the family member should be detained for a mental health evaluation. Unless there is a physical manifestation of the illness, there is no guarantee that the mentally ill family member will receive even emergency help.
To be most effective, a call for help should coincide with an exact moment of physically aggressive behavior by the mentally ill family member. The perfect timing for the call would be for the police or emergency mental health services to arrive at the moment that the mentally ill family member is commencing to assault another family member or himself/herself. If this were to occur, the mentally ill family member would almost certainly be detained for emergency treatment, and there would be credible and disinterested witnesses for the commitment hearing. Of course, attempting to achieve the perfect timing for the call must be tempered with common sense so that physical harm does not occurs which could have been avoided.
With respect to timing the call for help, the time of week also bears some mention. It is the practice in most Northern Virginia jurisdictions for commitment hearings for all persons detained between Thursday and Sunday morning to be held on Monday morning. It is also the usual practice for a person who is detained on an emergency basis to be involuntarily medicated with a powerful sedating drug, such as Halidol. This means that if one person is detained on Thursday and another is detained on Sunday, at the Monday morning hearing, the person detained on Thursday will have had three more days of medication than the person detained on Sunday. This will have a huge effect on how these two people present at the Monday morning commitment hearing. Therefore, from the family’s point of view, late Saturday through early Sunday is the best time of the week for an emergency detention, whereas Thursday and Friday are the worst.
3. Know who to call:
Usually, the first instinct for families when a mentally ill family member gets out of control is to call the police. This became problematic in Virginia following the enactment of an anti-domestic violence law in 1997. According to the Virginia law, police were required to arrest the primary aggressor in any case involving an altercation between family members. The literal application of this law meant that anytime the police were called by the family of a mentally ill person because of an altercation with the mentally ill family member, someone would leave in handcuffs to face criminal charges. Thankfully, following some very bad publicity, it now appears that police, in at least the Northern Virginia communities, are making appropriate mental health referrals even though the altercation is between relatives.
There are several reasons why it may be more effective to call the police initially rather than contacting emergency mental health services directly. First, the police are more likely than the mental health emergency services team to view an aggressive act or vociferous threats as an imminent danger. Whether due to training, experience or subtle bias, the police simply take threats and minor confrontations more seriously than do social workers.
Second, the police may do a better job than the family of communicating what has happened to the mental health emergency services team or facility. Once the police determine that there is a mentally ill family member involved, they will often call in the mental health emergency services team. Since it is usually the mental health emergency services team that decides whether or not an emergency detention will occur, making the best possible presentation to them is critical. If the police can be convinced that a mentally ill family member is a danger, the police will convince the mental health emergency services team.
Before deciding whether to call the police or the mental health emergency services team, however, the family should know what the treatment of these kind of cases tends to be in the family’s particular jurisdiction. If the police in the family’s jurisdiction have a reputation for not being well informed or well trained to deal with family issues involving mental illness, calling the police should be an absolute last resort. Also, if a particular jurisdiction still has a policy that an arrest must be made in any case where there is a physical confrontation between relatives, the police should not be called until all other alternatives have been explored. Information about the different options available in a particular jurisdiction can be obtained by contacting local support groups for families of mentally ill persons, such as the Alliances for the Mentally Ill.
4. Tell your story with action words:
After an emergency detention has occurred, a civil commitment hearing will be scheduled within 72 hours, and sometimes as soon as 24 hours after the detention.
When I am contacted to represent family members at a civil commitment hearing, my first question to the family is always "what happened." The response that I get will invariably be a long history of the mentally ill family member’s illness ending with a statement such as "there was an altercation, the police came, and the crisis unit took him/her away." While I will ultimately need to know the history of the person’s illness, what I really want to know is exactly what happened that convinced the crisis unit that an emergency detention was warranted. I ask the question in such an open ended way, though, so I can quickly gauge how well the family is focused on the immediate events, which are the events that will control the outcome of the civil commitment hearing.
Understandably, the family will be focused on the mentally ill family member’s illness and refusal to accept/continue medication, usually including a recent deterioration. The family will tend to see the specific events leading to the emergency detention as relatively insignificant in comparison to the simple truth that the family member needs medication and will not take it. It becomes my job to explain to the family that the criteria for civil commitment must be satisfied by the testimony of the family members about the particular events that occurred. I must turn the family’s attention to the specific events leading up to the detention and assist them in retelling the events in a way that convincingly demonstrates that the mentally ill family member was an imminent harm to another family member or himself/herself.
The most important aspect of retelling these critical events is to paint a "word picture" of the physical actions that the mentally ill family member took. Rather than saying "he assaulted me and I fell down", a more effective telling of the story is "he hit me with a closed fist on my left cheek, causing this bruise, and then forced me to the ground with both hands." Or, instead of saying "he pushed me down", try "he raised both hands and struck me in the chest, which caused me to fly to the ground." Basically, the more vivid the picture of the aggressive physical action of the mentally ill family member, the more likely it is that the judge or panel presiding at the commitment hearing will agree that the family member is an "imminent" danger.
5. Prepare, Prepare and Prepare some more:
Except in extreme cases, whether or not a civil commitment will be ordered can be greatly influenced by the actions of the family members, some of which are described above. The final action that the family should take is to prepare intensely for the civil commitment hearing. Preparation for the commitment hearing generally falls into two areas. The first is to plan and practice the exact way that the events leading to the emergency detention are going to be retold to the judge or panel at the hearing. The second is to communicate before the hearing with the court appointed psychologist or social worker who will recommend commitment, or not, to the judge or presiding panel.
Within a few hours after an emergency detention, the family should contact the facility where the mentally ill family member is being evaluated to obtain the name and telephone number of the court appointed psychologist/social worker. The family should then call the number of the court appointed psychologist/social worker, and if there is voice-mail, leave a detailed message concerning the aggressive physical acts that precipitated the emergency detention. The family should also (and at a minimum) leave a telephone number where they can be reached so that they can speak personally with the court appointed psychologist/social worker. Since the court appointed psychologist/social worker’s recommendation concerning commitment is generally given great weight, it is critical that the family do as effective a job presenting the case for commitment to the court appointed psychologist/social worker as to the judge or panel presiding at the hearing.
The above are my ideas, based on experience, of some things that family members can do to maximize the likelihood that involuntary treatment will be ordered when it is critically needed. While I hope that this information is helpful in terms of how families will view their role in the commitment process, the above is not legal advice and should not be regarded as such in any way. Every case that I have handled is different, and every family that I have worked with certainly has had a unique dynamic. Therefore, the information above should be viewed as just that, information, and should not be relied on without seeking the advice of a lawyer who can properly advise you about the unique needs of your own case.
©1998 Kaplan and Kaplan , 8000 Towers Crescent Dr., Ste. 1350, Vienna, Virginia 22182 (703) 847-3647