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Acute Mental Illness and Competency in Criminal Defense: A Guide for Attorneys and Families Upon Arrest

Updated: Apr 25

For those who are familiar with my philosophy regarding the minds of those wrestling with conditions like schizophrenia and bipolar disorder, you know that I generally avoid the term “illness” when it comes to mental health challenges. Besides the unavoidable negative stigma it invites, I find it to be a fairly inaccurate classification of a mind that simply operates differently. Using the term illness suggests something is wrong with the person, and not only does that erect walls between the individual and those who might be trying to help her, but it always brings me to this question: What makes a person with these challenges sick? Are they unhappy? Homeless? Unemployed? Maybe in some cases, but in others none of these things might apply. It is a very subjective means of labeling a person, and I just don’t find it helpful, regardless of the research or science backing up the term.

 

That said, when a person is arrested and the nature of their condition makes it so that they simply cannot effectively communicate with those trying to help, I think it’s fair to view the condition, in that context, as an illness and something that needs to be “fixed” in some way.

 

Why do I make the exception? Because to frame it this way helps in addressing the practical consequences of being unable to communicate with an arrestee I want to help guide to a better place. When I can’t speak with my client, I can’t address a myriad of potential issues, such as their current mental health status, suicidal ideation or potential, medication needs, housing needs specific to their current condition, and, most importantly, the potential for release. While a more holistic view of mental health challenges, with an open-minded treatment approach, is desirable in the long run, in the short term we’re dealing with highly undesirable conditions that need to be remedied as fast as is possible. This is compounded by the fact that in most states, and certainly here in Georgia, the prospects of getting an arrestee to an inpatient hospital setting on a short time frame are exceedingly difficult.

Arrested criminal defendants with mental illness attorney guide

 


Let’s just start with the most common request from family members: having the individual immediately moved to a crisis stabilization facility, with the idea that his stabilization can be spun into more meaningful treatment afterwards. Take a deep breath and we’ll itemize the issues that arise:

 

(1)  There is no meaningful mechanism, here in Georgia and probably in most states, to antiseptically move an inmate from a jail to a hospital setting for mental health treatment, absent posting of bond. While there is the theoretical potential for a 1013 and involuntary crisis commitment similar to that seen on the outside, it is very rarely implemented by jail medical and mental health staff, and probate courts are unlikely to issues Order to Apprehend for someone as a danger to himself or others when he is already in a lockdown environment (the irony of this duly noted);

(2)  This leaves us to having to post bond in order to secure this theoretical admission. If the charges are of a violent nature, good luck trying to secure an attainable bond at an early stage, or at least one that won’t eat up the funds you might be willing to put towards the individual’s hospitalization and treatment. If a bond is secured, however, you then face the prospects of admission, which are not likely to be of an involuntary nature at that point and would require the agreement of the individual to voluntary admit himself. For a variety of reasons (acute symptoms, negative history in crisis hospitalization, lack of insight, etc.), bridging that gap from jail to inpatient could be very difficult, if not practically impossible at that stage;

(3)  Insurance and/or qualification for admissions may be lacking. I won’t belabor my distaste for CSUs, but they serve a limited purpose here in potential symptom stabilization. That said, they will HAVE to know that they’re going to get paid, and that means not only that the person will need to have insurance that covers mental health (the GA Mental Health Parity Bill requires equal coverage as with other conditions, but only if you have MH coverage), but that his or her condition will have to be such that the hospital feels it can justify voluntary admission to the insurer.

 

So, if a quick move to crisis hospitalization is typically not practical, how do I approach the short term concerns of an incarcerated client who is mentally ill and who’s symptoms are particularly acute? This is my three-part approach:

 

(1)  Get an Order for a State forensic evaluation of the client’s Competency to Stand Trial, immediately. As it stands, the wait time in Georgia for these evaluations to be completed is on a scale of months (specifically, around three to four months depending on the location), not days or weeks. That means you want to get on the list for one right away if you even mildly suspect the client may not be competent. Otherwise waiting means you’ve then wasted any time that passes between the date of arrest and whatever point you come to the realization that one might be necessary. I can always go back later, if my client stabilizes and gets traction, and have the Order rescinded and notify the State health department to remove him from the list. But, it’s a ball that needs to get rolling, and there’s no good reason not to.

(2)  Evaluate the severity of the client’s symptoms and their insight, or lack thereof, and assess for the possibility of alternative inpatient or partial hospitalization at a non-crisis facility. This assessment can be done in the first couple of visits, and it is really my main focus during those conversations. What do I observe? Are the symptoms subtle, such as some indicia of auditory hallucinations or mild indications of paranoia or delusion. Or, are they more severe, such as complete poverty of speech (they simply won’t talk), acute delusions or signs of severe paranoia. The latter probably doesn’t lend itself to the type of treatment and care I suggest here, as the individual likely wouldn’t go or wouldn’t be accepted based upon his presentation. But the former means I can start working with the family to consider non-crisis facilities, whether insurance will cover, whether they can cover out-of-pocket, and to help set up conversations with those facilities and coordinate virtual admissions interviews through the jail. If something can be secured, then my next step would be to coordinate a consent bond with the prosecutor; something that is usually attainable with conditions.

(3)  If outside treatment options aren’t viable, then I prepare the family (and my client to the extent they are able to communicate with me) to prepare for the possibility of a long wait for forensic services through the State, but don't give up on the client. There is always the possibility of either revisiting hospital services down the road if symptoms improve on their own or even encouraging the client to connect with jail services (and coordinating those if he's willing)




. Many times, my conversations with clients in those circumstances are candid and frank: “I need you to be able to talk with me on the same plane, and that might mean I need you take medications you might otherwise not want to touch. But if we can bring you to a place where you can communicate better with me and have a touch more insight as to your condition, we might be able to get you to a much better place than where you are, and from there you can work with real doctors and therapists to adjust medication dosages, types, etc. and to actually listen to and address your needs.” It’s all about practicality in a pressure cooker environment, and there’s always the chance the individual finds a moment of clarity and grabs the reins. It is then that I have to move quickly and strike while the iron is hot.

(4)  Forensic restoration is the last option, and it means a lot of pain waiting the 7-9 months it currently takes in Georgia to get a bed. That said, the teams on those units are superb and very thorough. Thus, my philosophy is to take all of the pain and anxiety on the front-end and the hard work my client and her team will do on the unit and work to find a path that gives her hope moving forward and provides a better outcome for her criminal case. I never want that individual to have to see the inside of a jail or crisis hospital again if at all possible.

 

Working with an arrested client who is struggling with severe mental illness is the most emotionally taxing type of case, as you never want to see someone who belongs in a treatment setting languishing in a jail. But these considerations can hopefully stem the pain some, or at least prepare the case for a better outcome and a better path for the client when they move out of the criminal justice system.

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