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Forensic Mental Health Legal Issues

Advocate For Mental Health

When a defendant with a mental disability enters the criminal justice system, many of the safeguards afforded to criminal defendants under due process, equal protection, and constitutional criminal procedure change. The merging of law and psychiatry has created a hybrid class of defendants who are sometimes treated like civilly committed mental health patients, while at other times like criminal defendants.

The rights and constitutional protections afforded to these “forensic patients” can and do vary according to where they are in the criminal justice process and how they are classified. For instance, the law holds insanity acquitters’ unaccountable for their actions and imposes mandatory treatment in lieu of punishment. However, they are frequently confined with fewer rights, and for longer periods, than their criminal defendant counterparts. Moreover, once confined, many find themselves facing a situation where they have to prove a negative (i.e., that they are no longer dangerous or no longer mentally ill), in order to be released from the system, and where the legal burden is quite difficult, if not impossible to meet.

People with mental disabilities who enter the criminal justice system are particularly vulnerable to abuse and neglect. They are often ignored, victimized, and warehoused with few treatment options other than medication. Unlike other criminal defendants, they bear a double burden: the stigma associated with mental illness, and the stigma associated with being accused of committing a crime – what many call the “mad and bad” clients.

All too often, the rights of forensic patients are ignored and neglected ­ even by well-intentioned defense attorneys. Such attorneys may show a laxness toward upholding these clients’ civil and constitutional rights either because they do not understand the nature of mental disability, or because they believe that treatment is in their clients’ “best interest.” Defense attorneys should recognize that getting their clients committed into the mental health system might not be best for them in the long run, especially when they are facing minor criminal charges.

A defendant is found Incompetent to Stand Trial (IST) and committed for psychiatric treatment when, as a result of a mental disorder or developmental disability, he/she cannot:

(1) understand the nature of the criminal proceedings against him, or

(2) assist counsel in the conduct of a defense in a rational manner.

An IST finding has no direct application to a defendant’s criminal responsibility for the underlying crime, but focuses solely on his mental status at the time that he enters the criminal justice system.

Incompetent to Stand Trial commitment to a hospital or conditional release program may result in a far greater curtailment of an individual’s liberty than if he had remained in the criminal justice system.

As discussed, certain felony IST defendants can face perpetual extension of their commitment through application of Conservatorship. Although these defendants were never found guilty of a crime, and are not “gravely disabled” from a civil commitment standpoint, they may spend the rest of their lives confined in a state hospital. Therefore, defense attorneys should initiate all available motions and pre—competency procedures, including the preliminary hearing, to prevent inappropriate IST commitments.

The Civil Rights of Patients:

No person shall be deprived of any public or private employment solely because of having been admitted to a hospital or otherwise receiving services, voluntarily or involuntarily, for a mental illness or other mental disability.

Any person admitted to a hospital or otherwise taken into custody, voluntarily or involuntarily, under this retains all civil rights not specifically denied in the Revised Code or removed by an adjudication of incompetence following a judicial proceeding other than proceedings.

As used in this, “civil rights” includes, without limitation, the rights to contract, hold a professional, occupational, or motor vehicle driver’s or commercial driver’s license, marry or obtain a divorce, annulment, or dissolution of marriage, make a will, vote, and sue and be sued.

Your hearing rights:

You may attend
You can call witnesses
You can talk, under oath, or can refuse to talk
You have the right to an independent mental evaluation
Your attorney will have access to all information about your case
You can have a written record of the hearing, even if you can’t afford it
The hearing must be conducted by a judge or referee who is an attorney
You have a right to an attorney and if you cannot afford an attorney, one will be appointed
The court considers:

diagnosis
prognosis
your input
a treatment plan
the least restrictive alternative
release you
a private hospital
any other suitable setting
a Veteran’s Administration hospital
a private psychiatrist or psychologist
commit you to a mental health board or agency chosen by that board
in prison
a juvenile
found incompetent to stand trial
found not guilty by reason of insanity
The court may:

release you
a private hospital
any other suitable setting
a Veteran’s Administration hospital
a private psychiatrist or psychologist
commit you to a mental health board or agency chosen by that board
The court may bypass the mental health board if you are a person who is:

in prison
a juvenile
found incompetent to stand trial
found not guilty by reason of insanity