I was stunned by a recent experience with the involuntary commitment process. No, for those who think I'm crazy, I was not the one committed. I got a call from a close friend who had been taken to an emergency room against his will.
As Wikipedia puts it: "Involuntary commitment is the practice of placing a person to [sic] a psychiatric hospital or ward against his or her will ...."
My friend had been communicating with a mental health professional. He mentioned suicide, but had never harmed himself, made no mention of a plan, and closed the message with: "But I have to go to work. I'll call you later." Hardly seems like an emergency to me though of course I'm no expert.
Pursuant to NY Mental Hygiene Law § 9.27, an ambulance appeared at his home and took him to an emergency room. His room was strikingly uncomfortable due to the removal of any object he might use to kill himself. While there he was lied to repeatedly by the staff. They lied to me too. They threatened him, and me. They intimidated him and discouraged him from exercising his right to a hearing. They disregarded the laws requiring them to give him proper notice of his rights.
In other words, it was a lot like a criminal prosecution.
From a defense lawyer's perspective, some contrasts between arrest and involuntary commitment stood out to me.
If you're suspected of murdering someone, the police are not supposed to arrest you unless they have probable cause. If, on the other hand, someone thinks you might be a risk of serious harm to yourself, the standard is lower. In fact, it's not even clear what the standard is.
If you are arrested, the police are required to bring you before a "neutral magistrate" (a judge usually) within 24 hours, whether or not you request to see a judge. If you are subjected to involuntary commitment, there's a variety of time periods that might apply if you request a hearing. If you don't request a hearing, it could be a long time. For example, under § 9.39 they can hold you for up to 48 hours on an emergency admission. Then, if they decide to keep holding you, you can request a hearing - in writing - and the hearing should be held within five days. So that's a total of seven days. And again, in a criminal case they have to give you a hearing. It doesn't matter if you ask for it.
Everyone has heard of the Miranda warning. When arrested, you have the right to remain silent. Anything you say can be used against you in a court of law, but your silence cannot be used against you. The police are also required to give you that warning, and they're further required to make an effort to make sure you understand it. If they fail to warn you properly, any subsequent evidence obtained from you cannot be used against you and you might have a civil rights lawsuit (though it's usually not worth anything).
If you are committed against your will, you do not get read a Miranda warning and you do not have the same right to remain silent. The hospital is required to provide you with written notice of your rights and to post them conspicuously. In practice if they do so the notice is buried among other papers and there is no requirement that they make sure you understand your rights. If you choose to remain silent, your silence will be deemed a lack of cooperation with their evaluation and treatment, and will be used against you in any hearing. My friend did not receive any written notice. When I visited the rights were not posted anywhere I'd call conspicuous - I couldn't find them and I looked for them. There were places where things were posted conspicuously and the relevant rights were not there.
If you are arrested you have the right to an attorney. If you can't afford an attorney, one will be provided for you. You are notified of this as part of the Miranda warning. Once you request an attorney, they can't question you without your attorney present.
In involuntary commitment, there is no clear right to an attorney. There are some requirements that the Mental Hygiene Legal Service be notified and they will serve, in a sense, as your public defender. In practice you don't get to see them for a while.
I tried to assist my friend. Hospital staff limited my access to him. They refused to allow me to be present while he was questioned.
When my friend submitted his written request for a hearing, one of the hospital psychiatrists got right in his face and yelled at him. This treatment was not therapeutic.
I fully appreciate the feeling many have that we need to protect those with mental health problems, even from themselves. Similarly, there is a demand to protect the rest of us from them. William Galston argues that in The New Republic, arguing: the law should no longer require, as a condition of involuntary incarceration, that seriously disturbed individuals constitute a danger to themselves or others, let alone a “substantial” or “imminent” danger, as many states do.
Apparently Mr. Galston feels the laws are too lenient on those with mental health problems. The problem with his logic, as with many who cry out for tougher crime laws, is that it ignores the rights of the innocent. My friend was not a danger to anyone. Yes he has a mental health problem. But the hard truth is that mental health problems are commonplace. Galston's approach would take us down a very slippery slope.
We are already too far down that path. It is idiotic that those suspected of being a danger to themselves have less rights than those suspected of actually harming others. Yes it is important to make an effort to protect people with dangerous mental health problems. But it is more important that we ensure this is not abused. Anyone subject to involuntary commitment should have at least the same rights as an arrestee.
And thanks to Winston's comment on facebook, there's another point. When the mental health professional pulls the involuntary commitment trigger, it inherently damages the relationship. That may be necessary at times. But if the process thereafter is unfair, it further damages the relationship between the patient and the entire mental health profession. Future care for this person will be far more difficult.
9 comments:
I have been thinking about the court system in mental health , it was often called the "dog" that does not "bark", obviously the main difference between an arrest and mental health is that generally speaking unless you are really out of it folks don't treat you as guilty of a crime while when you get arrested everybody thinks you are guilty for the most part.
Folks I have spoken to say that nearly 98% of the time courts rule against the person who wants out of commitment in recent cases in the past decade there was a case in which a judge never let anyone out and only in the past 15 years or so have hearings become public.
You do have a right to an independent psychiatrist however the effectiveness of this is debatable or even little known.
Like a criminal conviction or prosecution however is the fact that once you are found insane or committed to a institution it is a bar, for instance it would be a felony for someone committed to an institution to possess a firearm.
I would not use wikipedia for definitions although the definition meets the criteria in NY there are emergency, "voluntary" , involuntary, of course in practice all three are sort of involuntary include the supposed voluntary in which one can be pressured to sign in or in cases of a minor.
This is a topic that is not talked about frequently, folks have spent lots of money diagnosing themselves to avoid enemies making up stories or those would stand to financially gain or rather dislike the person or rather poorly judge them.
Kendra's law is often criticized for what you point out in the last paragraph , side effects of meds , the person who killed kendra webdale had himself checked into psychiatric centers ,budget cuts forced him to be discharged. Folks have threatened kendra's law even among those who are not dangerous or in need of drugs because they do not agree with the mental health professional who may him or herself not be a expert for instance a social worker or a case manager.
i was recently mha'ed.i talked to my pscyh.on 3/29. i was fine i told her my weekend plans.we were in the process of ending our 6+ yrs. of tx.
i saw her briefly as she left work on 3/30, i was dropping off a plant and some plaque magnets for the staff.goodbye gifts.she said the office was still open,just go on upstairs and put them inside.my plan was to leave the box in the lower lobby waiting area,i left my cane in the car to carry the box ,stairs are like mnt.everest to me with my cane,i have parkinsonins syndrom. all was fine. i found out on 4/2/11,when i got my mail that my tx. was terminated on 3/3011. i couldn't get my mail on 4/1/11,because my dr. thought i was a danger to myself others or property? she never called and asked me,i was sleeping.she never called my contact person,to inquire about. she broke dr./pt. confidentiallty and called my brother in boston,who has no clue about my tx,the dr. and i had a very specific protocal about contact with him .so, he calls,and i'm like she had NO right to call you,i didn't give consent,then she called him again to let him know she may need to take further action. then,i start to go back to sleep,and bahm bahm bahm,the sheriffs were here to take me to the ed .on an mha495. they had to leave because the form only had one dr.s's signatures on it. i told the officers that i'll see them back in 20 minutes.and that is what happened.my former dr. whose last previous interactions have been fine, i don't do violence, so, she doesn't see me, the 2nd dr. i never have met. i don't know how he can assess me and sign without evaluating me. so, that freedom of information is a crock,that is if you are receiving care for deppression,we don't count. so, i am in the process of researching what exactly the two signature are responsible for. i just want to see the narrative statements,what they said about be. so, there i was in pysch.ed. it took them 16 1/2 hours to get to me. i got there around like9 am,staff,were getting their coffee, i know alittle bit about hospitols so i told them that i have noon meds that i take.they assured me they would put the order into the pharmacy,noon came and went no meds,then every half hour, i would head towards the desk,ofcourse it wasn't long for them to pull the shade down. i got 1 of 3 meds at 6:30pm. so,i got to talk to a sw,rn,an intern psch. and they called my local contact, the staff asked me why are you here?? i still don't know. there is the obvious "ER DUMP" if you as a clinician want to swiftly and"legally" get a pt. off your caseload and make someone or some agency responsible for your discharge plan of care,its the MHA.works everytime.i am not shutting up about this,our voices don't count "really" so i'm going to have to be loud,too.trin
The only part I have a comment on is the damage done to a therapeutic relationship with an involuntary hospitalization is initiated. It doesn't have to damage the relationship. If a psychologist or psychiatrist does a good job of explaining confidentiality and what it means to break confidentiality (and of course why they may break confidentiality), there is a good chance the patient will understand.
I think that since you are the friend of the person who was involuntarily hospitalized, you only got his/her side of the story. I'm not saying mental health professionals are angels who never make mistakes. But it just sounds like everyone was out to get your innocent friend who was minding his/her own business.
While I agree with your comment about how the relationship can be protected, the rest of your comment about my getting only his side of the story is inaccurate.
I discussed my friend's case directly with three different psychiatrists who were "treating" him at the hospital. I also read the message that my friend had written that triggered the initial commitment.
All three psychiatrists were dishonest, both with my friend and with me. They were extremely hostile to me. They did not like a lawyer sticking up for his client, at least not when it meant challenging them. One of them yelled at my friend, right in his face, after speaking with me.
I have friend who did attempt suicide. 911 was called. He did not want to go, and resisted getting in the ambulance. He was put in 4 point restraints, resisting the whole time. He had taken a number of pills and a lot of alcohol, someone came home early and found him. He was very serious about ending his life.
Then begins the horror story. While being transported one arm came out of the restraint. The other arm and legs were still restrained. The EMS attendent then jumped on his chest and repeatedly punched him in the face, knocking out two teeth. He did not ask the ambulance to pull over, did not ask for assistance to get the patient under control. Just started beating on him.
Then he charged my friend with assault, as the EMS attendent's finger was broken as he was assaulting the patient. So my friend is in hospital - and informed that there is a warrant for his arrest. After being released from the hospital (He was in for few days) he turned himself in. He asked if he could press charges as he was the one assaulted (Huge black eye as well as the broken teeth- which his wife told me he was not in that condition when he was put into the ambulance) He was told the DA would not accept those charges.
This was in NY State - Orleans County.
So instead of being able to focus on getting healthy mentally, he now has the added stress of facing these charges - when he was actually the victim. My concern is that this EMS attendent obviously does not have the capacity for this type of work. If he will assault a restrained patient, who knows what he will do next?????
A few months ago I was seeking help for sleep issues over a six month period.
These issues all started when I contracted lyme disease several years ago.
During this time no one would asist me.
So I wound up moving out of state I was in, to another.
There I lived in hotels as I could not get a place to live right away.
A friend was bringing me to emergency rooms to try and get help for my sleep issue.
I wound up at one hospital was there for like a day and apparently they wanted to get rid of me so they conviently lied and said I was out of control when in fact I was locked in a room and would only knock on the door to either talk with someone or go to the bathroom.
Next thing I know a security officer comes in, Im bound in chains in 3 different places and brought to a state hospital.
While there I was fairly quiet for the most part as not having slept for so long was playing tricks on my mind.
However I was never violent at any time. Next came the Kangaroo Court Hearing where in 30 seconds I was told I would be involuntarily committed to outpatient treatment indefinitely.
Well, I thought isnt that wonderful. Im almost a half century old, never committed a crime my entire life nor have I ever been under a court order for any reason at all, yet I have now become property of a probate court.
My right to liberty and the pursuit of happiness has been severely violated, I was never informed of my right to re examination in the hospital or the outpatient facility and was basically made fun of during my hospital stay by the doctor and social workder.
Interestingly enough the doctor I currently see in outpatient treatment doesnt even have me on meds, thank God for that.
I have and continue to run my own business for 6 years and counting, just got a job on top of it to supplement my income when business is slow, got a new car and yet according to the court order it states,
"lacks sufficient insight or capacity to make responsible decisions with respect to his treatment"
There was no mention of me being a harm to myself or others.
Funny I was seeking help for six months prior to this order. I guess the only insight and capcity I lacked was to attempt get help from the mental health system in the first place.
Does anyone know if my new doctor, who by the way is on my side can assist me in getting this court order overturned in South Carolina?
All the attorneys and or supposed people in the know down here have all given me conflicting opinions and I cant seem to get a straight answer out of anyone what the exact law is and what can be done to asssit me.
I cannot do an appeal as it is supposed to be done within 15 days of the original order.
I looks like I can petition for a right to re examination however this seems to be only able to be done in the original county of where this occured.
One attorney told me Im better off going back to NY and trying to get it overturned up there while another attorney said the only chance i have is to hire an attorney in the county it occured and go from there.
Which is like double jeapordy in the sense that I may go before the same judge and there may be a possibility of getting re examined by the same doctor which is a complete trajedy.
At this point if someone could give me some insight into this I would be greatful as I have no intention of being an involuntary ward of the state for the rest of my life.
hospitals get paid by insurance and or government for each patient they admit and for each day they stay. think they're going to make it easy to get out? doctors have a financial interest in keeping you they're as long as they can. careful what you say this could happen to anyone. of course they're are people who should be in the hospital but rights should be vigourisly proteced more safe gaurds needed. apparently system not working. new laws need to be passed. people given to much power often abuse it. need more checks and balances. someone ought to sue and propose new legistlation to keep this abuse from happening.
re getting a NY IOC order overturned - check with a NY lawyer who has knowledge of this particular area of law, but i have heard that in any case the IOC order is not enforceable outside of the state.
I can honestly relate to your friend, I currently have a case in New York State, I to was admitted to a hospital under a DCS certification after my sister in law had made a malicious allegation from 10 miles from my home while I was celebrating my 21st birthday with family and friends. Later that evening I was greeted by the Dewitt Police t nearly 2 in the morning requesting I submit to a psychiatric evaulation. After some talking I finally went. Then later that evening my girlfriend came to see what had happened, and at the same time she gave birth to our child. I then demanded to see my daughter being born and detested the allegation of having to wait to see a doctor. I was then sedated heavily with medication that nearly killed me due to allergic reactions. I was later admitted that evening. And was to sedated and drunk to be fully evaluated. The admitting doctor admitted he did not see any signs of suicide. But being that I was given a very powerful sedative and sustained allergic reaction, I kept over night. The following day I was re-evaluated and released and not found to be suicidal. Would you believe I was entered into the NICS database as having disbility. No right to due process. To the attorney if you can e-mail me at maximus31k@yahoo.com so I could get some advice thanks!!
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