Law and People with Disabilities

14 September

• Mental illness is legally distinct from developmental disability. The latter starts before the age of 22. But it's not always easy to draw a distinction in the context of symptoms and diagnoses.
• When representing a client, recognize that they have expertise about themselves. Know the facts very well, and also be mindful of that distinction.
• Some of the main mental illnesses needing legal help:
  Schizophrenia: generally episodic, can be treated with medication, sometimes group or individual therapies can help.
  1. Bipolar (and unipolar) disorder: episodic also, treated with mood stabilizers, anti-seizure drugs, lithium (deprecated).
  2. Major depression
  3. Severe anxiety: sometimes electroconvulsive therapy is coming back into favor... It's legally off-limits (like psycho-surgery, lobotomies, etc.) in WI, but maybe someone will look to change that.
  These are the bulk of the client list.
• Actually, most mental illnesses will have ups and downs-- don't assume that people will stay the same over time.
• Know where your client has lived. Know their trauma history, and how it has impacted their illness, treatment, diagnosis, etc.
• Most care is not trauma-informed. You look at a record, and you don't see any trauma assessment, but there's lots about restraint, seclusion, etc.
• Also, what is "recovery" with respect to mental illness? Maybe it's just learning to function in your environment in such a way that you can participate in and enjoy your life. We're seeing a lot of emphasis on recovery-oriented services: not just drugging people, but working on ways to help them be functional.
• What is needed: using the law to obtain desired services, or using the law to resist something sought to be imposed (usually treatment).

  Getting services is difficult, just because of scarce resources.

  Also, people have a tendency to want to recommend others for treatment, believing that since mentally ill people can't perceive their problems correctly, it's necessary to force treatment upon them.

• Wis Stat § 51 covers mentally ill, developmentally disabled, drug addicted, and alcoholic people. The state is mandated to provode some crisis services, and to provide a minimum standard of care for those who are committed, but there's no mandate to provide services generally.

  There are services available via Medicaid, however.

• In order to be committed, you need:
  1. To have a mental illness
  2. To be a proper subject of treatment
  3. Dangerousness to self or others

  The majority of cases will have one of the standard major mental illnesses, so the first hoop is relatively easy to jump through most of the time.

  Your illness doesn't have to be curable in order to be a proper subject of treatment, but you symptoms have to be at least to some extent capable of amelioration. This is a harder one to argue.

  The dangerousness prong is really the hard one, though.

• Generally what happens is that someone calls the cops on someone else, because they notice something is wrong with the person.

  So that means the process begins with the police, most of the time: they're the front-line deciders about detention and initial thoughts on commitment.

  The proper subject of treatment comes after emergency detention, so police don't have to worry about that prong out in the field. But anyway, the cop has to contact someone from the county to get authorization for transport to a treatment center.

  And remember, WI is a county-oriented state, so the county wants to be involved right away in deciding whether a new individual is going to get services. Some counties have mobile teams who come out, observe, and try to propose alternatives. Which is a win-win, actually. Mendota costs about $1K/day these days.

  Anyway, next stop is the county crisis center. There the clock starts ticking on the 72 hours to decide whether there is going to be a due process hearing. See, e.g., Lessard.

• Be cautious of timelines here: timelines are constitutional, and if they are violated, people can get sprung right away.
• Commitment can also start from a "treatment director's hold:" say you're in treatment voluntarily, but now you want to leave. The treating clinic thinks this would be a very bad idea, so they can hold you 72 hours to start the process.
• Asking for a second evaluation is a be careful what you wish for kind of a thing: it may not be any better or more independent than the first one.
• Initial commitment is 6 months. Reviews have to rely on new and current evaluations: does the person still really meet the criteria? Of course, the institution has probably been pretty diligent about keeping notes on things.
• Involuntary medication is a whole other topic, although it's not unusual for someone who meets the commitment standard also to meet the standard for involuntary treatment. But there has to be a separate proceeding dealing with informed consent, and the ability to understand and make decisions about their own medication.
• If you had a heart problem, you could stop your meds and eat as many doughnuts as you wanted until you died. Not so with mental illness-- there's a stigma, and also a view of people who suffer from mental illness as lacking the ability to decide to decline treatment.

  Partly this is because we fear the mentally ill, but it turns out the mentally ill aren't any more violent on balance than any other segment of society.

• Anyway, decisions about dangerousness are often fairly speculative. If you see a plan, a method, etc., that would be stronger evidence. But it's a fact-gathering exercise.
• Youngberg v. Romeo
  The more years you're in an institution, the harder it is for you to cope outside it. Here there was just custodial care, and then restraint of he acted out.

  So this case establishes a right to treatment ("habilitation"), along with the rights to freedom from restraint and seclusion.

  The balancing here, as always, is between the safety of the individual and the institution, and the individual's liberty.

  And the standard articulated in this case is whether there has been an exercise of professional judgment.

  And this is still a nice viable and useful case.

• Olmstead v. Zimring
  Right to services under the ADA.

  If someone is deemed (by experts) able to live in the community, and nobody is doing anything about that, it's a problem.

  A waiting list is OK, but only if it's moving at a reasonable pace (45 or 90 days might be OK, but boundaries are fuzzy).

  "We can't deal with 75 people in this program that was only designed for 10-- that would be a fundamental alteration." This is a trickier argument, and it's not looked at so much on an individual basis as on a broader kind of thing.

• Other issues: when does the state have the right to force sterilization? It's not usually a court-ordered thing, but rather guardians signing off on it.

  See also the Ashley case out in WA: surgery to keep a disabled person from physically maturing.

  Express wishes vs. substituted judgment: this is always an issue as well. People think they have the best interests of others at heart, but they forget that the ability to make choices includes the ability to make bad choices. So always be asking: is this something where I need to insert my judgment?

  One thing that's going to heat up is rights around things like drivers licenses and voting, credit, housing, etc. Things were you need a record tend not to go well for marginalized people who have had unstable lives.