Counsel / Judges / Civil Commitment Law

Question 1

Right to Counsel

Answer 1

• The USSC has not ruled on if those facing civil commitment have right to counsel. All state and lower federal courts say they do have a right. But there are still other issues.
• Due process applies whenever someone is facing involuntary incarceration (Lessard v. Schmidt).
• No direction on what level of competency of counsel for civil commitment cases.
• Strickland v. Washington: Establishes the right to counsel in criminal cases.

Question 2

Types of Statutory Provisions Re: Right to Counsel in Civil Commitment Cases

Answer 2

o Merely set of the right
o Right + court appointment for indigent patient
o Right + court app. For indigent + setting time limits for appointment
o Right + court appointed for indigent + specifying counsel’s roles
o Those that also extend the right to counsel to subsequent stages of the commitment proceeding
o Those that also either establish some sort of organized system of providing such services or allow for the establishment of such a system

Question 3

Early American Development of Civil Commitment - Two Policy Bases

Answer 3

Police Power & Parents Patriae

Question 4

Jackson v. Indiana

Answer 4

• Due process applies to civil commitment; the nature and duration of commitment must bear some reasonable relation to the purpose for which the individual is committed.
• “Jackson Hearing” – phrase used to describe the proceedings to involuntarily commit someone.
• Definition of mental illness for civil commitment varies wildly.

Question 5

Various Dangerousness Tests

Answer 5

Lessard Guidelines: Based on a recent overt act or threat. “High-water’ mark of involuntary civil commitment. Mandate of overt act has been rejected in some places more recently, but still good law and regularly cited.

State v. Krol: Dangerous conduct is not synonymous with criminal conduct. Commitment requires “a substantial risk of dangerous conduct within the reasonably foreseeable future.” Evaluation of risk involves consideration of likelihood of dangerous conduct and the seriousness of the harm that may ensue if such conduct takes place. A defendant might be dangerous “in only certain types of situations or in connection with relationships with certain individuals.” Any evaluation of dangerousness in such situations must take into account “the likelihood that defendants will be exposed to such situations or come into contact with such individuals.”

Krol: Most articulate.

O’Connor: Stands beside Jackson as one of the Supreme Court’s early “twin pillars” of civil commitment law.87 Its reformative influence on state legislatures has been incalculable.

Note: Courts are split over the necessity of an overt act for proving dangerousness.

Question 6

O’Connor v. Donaldson: The Right to Liberty

Answer 6

USSC Holding: A state “cannot constitutionally confine without more a non-dangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends.”

It marked the first Supreme Court recognition of “the legitimacy of judicial involvement in activities previously considered to be the exclusive domain of psychiatrists.

Question 7

Least Restrictive Alternative

Answer 7

• Narrowly tailored means so as not to encroach unnecessarily on important competing interests
• Lake v. Cameron: First use of LRA in mental disability law. Local law mandated availability of entire spectrum of services
• Lessard: a court should order full-time involuntary hospitalization only as a last resort. The burden for exploring alternatives to institutionalization was placed on “the person recommending full-time involuntary hospitalization,” who must prove: what alternatives are, what alternatives were investigated, and why those alternatives are not good enough

Question 8

Other Reasons for Civil Commitment

Answer 8

• They will die of not being able to take care of themselves.
• Gravely disabled.
• Sometimes (but not always) a danger to property.

Question 9

Considerations After Commitment // What happens when an Individual Was Once Involuntarily Committed but No Longer Fits the Criteria for Continued Institutionalization?

Answer 9

• Many could not be released because they had no community to return to.
• In re SL created “Discharged Pending Placement” (DPP).
• Fasulo v. Arafeh: Right to periodic Review (Due process would seem to require a meaningful periodic review of the continued legitimacy of restraints on the liberty of all persons whose alleged dangerousness by reason of mental disability brought about these restrictions).

Question 10

Fundamental Rights Concerns with Hospitalization

Answer 10

Interferes with privacy, liberty, etc.

Question 11

Rennie v. Klein

Answer 11

Concerns the right to refuse medication and/or treatment. That right may be overridden with the consideration of four factors:

(a) Patient capacity to decide on own treatment.
(b) Physical threats to other patients and staff.
(c) If less restrictive alternatives are available.
(d) Risk of permanent side effects of the proposed treatment.

Hospital bears the burden to show that the four factors are met.

Question 12

Waukesha County v. JWJ (In re Mental Commitment)

Answer 12

Question: How long can the commitment be extended? What does rehabilitation really mean.

Requirements for commitment: Mentally ill + proper subject for treatment + dangerousness.

Patient Argument: The point of civil commitment is rehabilitation; because he cannot be rehabilitated, he is not qualified for civil commitment.

Wisconsin says he is proper for treatment; the civil commitment is keeping him from being dangerous.

Question 13

Wyatt v. Stickney

Answer 13

3 Fundamental Conditions for Adequate and Effective Treatment in Public Mental Institutions:

(1) Humane Environment (Physically and Psychologically).
(2) Qualified staff in numbers sufficient to administer adequate treatment.
(3) Individualized treatment plans.

Question 14

Considering Experts in Civil Commitment Hearings

Answer 14

Experts: provide insight into illness, opinion on nature of illness, basis for deciding if the illness made the patient legally insane at the time of the crime.

Without independent expert – is the trial fair?

Question 15

Ake v. Oklahoma

Answer 15

Death penalty case

Holding: If defendant makes basis showing that insanity will play a role at trial, he is entitled to a psychiatrist assistance. Usually read narrowly: No expert unless absolutely essential to the defense.

Role of Expert: To assist the lay juror in understanding and making a sensible, educated decision

Question 16

Mcwilliams v. Dunn

Answer 16

Elaborated on holding in Ake

Holding: Expert could have shown that the defendant’s malingering was in line with his diagnosis. Standard not met when expert did not help with evaluating the neuropsychologist report, so the defense could translate it into a legal strategy.

Question: are there some instances where there should be a right to an additional expert to explain to the jurors in terms they can understand.