Keys to Commitment
By Robert J. Kaplan, J.D.
Reprinted with permission of the author.
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 involuntarytreatment for a mentally ill family member are either unaware of the commitment criteriaaltogether, or are unprepared to present an effective case at the commitment hearing thatthe commitment criteria have been satisfied. In contrast to the lack of knowledge offamily members, however, the difference between obtaining a commitment and failing toobtain a commitment rests often on the ability of the family members present at thecommitment hearing to describe the events that precipitated the commitment hearing.
The following are what I believe to be the keys forfamilies to unlocking civil commitment for mentally ill family members:
1. Know the criteria for Commitment:
In Virginia, civil commitment is only available for aperson who, due to mental illness, is in need of hospitalization and who presents animminent danger to self or others, or is so seriously mentally ill as to be substantiallyunable to care to self, and who is incapable or unwilling to volunteer for treatment.
Generally speaking, a mentally ill family member who isliving with his/her family, or who is receiving continuing aid and comfort from thefamily, will not be in sufficiently bad physical condition to satisfy the “unable tocare for self” criteria, which usually requires a physical deterioration approachingthe truly disgusting.
Most often, the issue that arises with respect tocommitment criteria is the “imminence” of an assault against a family member ora suicide attempt. The witnesses at a civil commitment hearing can often describe momentsin the past where the mentally ill family member has done something that was threateningto a family member or himself/herself, but there is frequently a problem connecting thatevent to the time frame of the commitment hearing. Overcoming this hurdle requiresappropriate 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 whensummoning help for a mentally ill family member who needs involuntary treatment. A callfor 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 familymembers condition or result in physical harm. Knowing the correct moment to summonhelp is more art than science, but the following may be worthy of consideration:
Try not to call the police or emergency mental healthservices unless the mentally ill family member is currently making some outwardmanifestation of the illness that can be construed as aggressive. First, practicallyspeaking, the police or emergency services are not going to come out multiple times forthe 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 mentallyill family member is spewing insults, profanity or threats, does not mean that the policeor emergency services will determine that the family member should be detained for amental health evaluation. Unless there is a physical manifestation of the illness, thereis no guarantee that the mentally ill family member will receive even emergency help.
To be most effective, a call for help should coincide withan exact moment of physically aggressive behavior by the mentally ill family member. Theperfect timing for the call would be for the police or emergency mental health services toarrive at the moment that the mentally ill family member is commencing to assault anotherfamily member or himself/herself. If this were to occur, the mentally ill family memberwould almost certainly be detained for emergency treatment, and there would be credibleand disinterested witnesses for the commitment hearing. Of course, attempting to achievethe perfect timing for the call must be tempered with common sense so that physical harmdoes not occurs which could have been avoided.
With respect to timing the call for help, the time of weekalso bears some mention. It is the practice in most Northern Virginia jurisdictions forcommitment hearings for all persons detained between Thursday and Sunday morning to beheld on Monday morning. It is also the usual practice for a person who is detained on anemergency basis to be involuntarily medicated with a powerful sedating drug, such asHalidol. This means that if one person is detained on Thursday and another is detained onSunday, at the Monday morning hearing, the person detained on Thursday will have had threemore days of medication than the person detained on Sunday. This will have a huge effecton how these two people present at the Monday morning commitment hearing. Therefore, fromthe familys point of view, late Saturday through early Sunday is the best time ofthe 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 mentallyill family member gets out of control is to call the police. This became problematic inVirginia following the enactment of an anti-domestic violence law in 1997. According tothe Virginia law, police were required to arrest the primary aggressor in any caseinvolving an altercation between family members. The literal application of this law meantthat anytime the police were called by the family of a mentally ill person because of analtercation with the mentally ill family member, someone would leave in handcuffs to facecriminal charges. Thankfully, following some very bad publicity, it now appears thatpolice, in at least the Northern Virginia communities, are making appropriate mentalhealth referrals even though the altercation is between relatives.
There are several reasons why it may be more effective tocall the police initially rather than contacting emergency mental health servicesdirectly. First, the police are more likely than the mental health emergency services teamto view an aggressive act or vociferous threats as an imminent danger. Whether due totraining, experience or subtle bias, the police simply take threats and minorconfrontations more seriously than do social workers.
Second, the police may do a better job than the family ofcommunicating 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 willoften call in the mental health emergency services team. Since it is usually the mentalhealth emergency services team that decides whether or not an emergency detention willoccur, making the best possible presentation to them is critical. If the police can beconvinced that a mentally ill family member is a danger, the police will convince themental health emergency services team.
Before deciding whether to call the police or the mentalhealth emergency services team, however, the family should know what the treatment ofthese kind of cases tends to be in the familys particular jurisdiction. If thepolice in the familys jurisdiction have a reputation for not being well informed orwell trained to deal with family issues involving mental illness, calling the policeshould be an absolute last resort. Also, if a particular jurisdiction still has a policythat an arrest must be made in any case where there is a physical confrontation betweenrelatives, the police should not be called until all other alternatives have beenexplored. Information about the different options available in a particular jurisdictioncan 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 civilcommitment hearing will be scheduled within 72 hours, and sometimes as soon as 24 hoursafter the detention.
When I am contacted to represent family members at a civilcommitment 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 familymembers illness ending with a statement such as “there was an altercation, thepolice came, and the crisis unit took him/her away.” While I will ultimately need toknow the history of the persons illness, what I really want to know is exactly whathappened that convinced the crisis unit that an emergency detention was warranted. I askthe question in such an open ended way, though, so I can quickly gauge how well the familyis focused on the immediate events, which are the events that will control the outcome ofthe civil commitment hearing.
Understandably, the family will be focused on the mentallyill family members illness and refusal to accept/continue medication, usuallyincluding a recent deterioration. The family will tend to see the specific events leadingto the emergency detention as relatively insignificant in comparison to the simple truththat the family member needs medication and will not take it. It becomes my job to explainto the family that the criteria for civil commitment must be satisfied by the testimony ofthe family members about the particular events that occurred. I must turn thefamilys attention to the specific events leading up to the detention and assist themin retelling the events in a way that convincingly demonstrates that the mentally illfamily member was an imminent harm to another family member or himself/herself.
The most important aspect of retelling these criticalevents is to paint a “word picture” of the physical actions that the mentallyill family member took. Rather than saying “he assaulted me and I fell down”, amore effective telling of the story is “he hit me with a closed fist on my leftcheek, 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 struckme in the chest, which caused me to fly to the ground.” Basically, the more vivid thepicture of the aggressive physical action of the mentally ill family member, the morelikely it is that the judge or panel presiding at the commitment hearing will agree thatthe family member is an “imminent” danger.
5. Prepare, Prepare and Prepare some more:
Except in extreme cases, whether or not a civil commitmentwill be ordered can be greatly influenced by the actions of the family members, some ofwhich are described above. The final action that the family should take is to prepareintensely for the civil commitment hearing. Preparation for the commitment hearinggenerally falls into two areas. The first is to plan and practice the exact way that theevents leading to the emergency detention are going to be retold to the judge or panel atthe hearing. The second is to communicate before the hearing with the court appointedpsychologist or social worker who will recommend commitment, or not, to the judge orpresiding panel.
Within a few hours after an emergency detention, the familyshould contact the facility where the mentally ill family member is being evaluated toobtain 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 physicalacts 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 withthe court appointed psychologist/social worker. Since the court appointedpsychologist/social workers recommendation concerning commitment is generally givengreat weight, it is critical that the family do as effective a job presenting the case forcommitment to the court appointed psychologist/social worker as to the judge or panelpresiding at the hearing.
The above are my ideas, based on experience, of some thingsthat family members can do to maximize the likelihood that involuntary treatment will beordered when it is critically needed. While I hope that this information is helpful interms of how families will view their role in the commitment process, the above is notlegal advice and should not be regarded as such in any way. Every case that I have handledis 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 shouldnot be relied on without seeking the advice of a lawyer who can properly advise you aboutthe unique needs of your own case.
©1998 Kaplan and Kaplan , 8000 Towers Crescent Dr., Ste.1350, Vienna, Virginia 22182 (703) 847-3647