What A George Mason Expert Is Saying about … Mental Illness and the Law

Posted: June 9, 2006 at 1:00 am, Last Updated: July 28, 2010 at 11:40 am

By Lynn Burke

It seems as if every week, the news media reports a tragedy brought on by someone suffering from mental illness.

It’s an occurrence that hit particularly close to home this past May with the deaths of Fairfax County Police Detective Vicky Armel and Officer Michael Garbarino. Both were gunned down in their police station parking lot by an apparently mentally ill young man.

The incident has spurred discussion of the tools available to keep mentally ill individuals from hurting themselves and others.

John Whitbeck, of Whitbeck & Cisneros P.C. in Leesburg, Va., directs the Mental Illness Legal Clinic at the George Mason University School of Law, where third-year law students represent petitioners in civil commitment hearings.

He explains that there are three options for seeking treatment for a person with mental illness in Virginia.

First, in emergency situations, you can contact the emergency services of the particular county you are in and ask that they evaluate an individual for possible commitment. If the individual meets the criteria, the evaluator goes to the magistrate to get a temporary detention order, which allows the sheriff’s department or local police force to take the mentally ill individual into custody and transport him or her to whatever hospital has a bed available.

The mentally ill person is entitled to a hearing with a judge and an attorney appointed to represent them. If the petitioner – a police officer, a family member, a spouse or just a concerned person – proves by clear and convincing evidence that the mentally ill individual is an imminent danger to himself or herself, an imminent danger to others or substantially unable to care for himself or herself because of mental illness, and nothing other than inpatient psychiatric hospitalization will deal with his or her issues, the judge can commit the individual for up to 180 days in the hospital.

Second, the person can volunteer for treatment, up to a five-day hospital stay.

Third, you can seek a guardianship so you can make medical decisions for the person, and a conservatorship so you can make all their financial decisions. But the guardianship/conservatorship does not allow you to hospitalize or medicate the individual; that can only be done through the commitment process.

“The real failure with these options,” says Whitbeck, “is that there’s no middle ground. The only way you can commit someone and get them psychiatric treatment with medication – all the things they need – is to have an emergency situation, but most people who need help are not in that last-straw situation.

“They’re not in imminent danger to themselves, they’re not about to commit suicide, they’re not about to hurt somebody, they’re not living in squalor and unable take care of themselves, but they just can’t function normally and are on the brink.

“People in that condition usually don’t believe they need help, and if they’re functioning at least at the basic level, they don’t meet the criteria. But it defies logic to think that an individual who can’t distinguish reality from fantasy because of mental illness is going to make the conscious decision to check into the hospital.

“We need a new law that addresses these people because they are in the majority.”

Whitbeck goes on to explain that there is a statute that allows you to force an individual who doesn’t understand the ramifications of failing to seek medical treatment to undergo medical treatment. If you can prove that they’re unable to understand what’s going on with them, you can file a petition with the circuit court or the general district court of the particular county. But this approach will not allow you to commit a mentally ill individual to a psychiatric hospital or medicate them.

“And that is what is so bizarre,” Whitbeck says. “As I interpret the law, you can force someone to undergo a transplant, undergo a blood transfusion or have invasive surgery if you can prove that the individual doesn’t understand what is wrong with them. But the one thing you can’t do is forcibly medicate someone with psychiatric drugs or force them into a psychiatric facility, and that just makes no sense.

“If someone is unable to understand that he or she needs treatment and you can prove the standard in the statute that they need some kind of medical care, you should be able to use the same statute to try to prove that someone needs psychiatric help – and not when he or she has attempted suicide, not when he or she has already attacked someone, not when he or she is already living in horrific conditions.

“Most cases that I litigate in the clinic involving individuals who are a danger to self, for example, don’t involve suicide, and usually the justices will not commit them unless the person has attempted suicide.

“Why do we wait that long? Why can’t I utilize the court system to try to prove that they meet the criteria? The system is not perfect: it’s still a judge or a jury making a decision for the person against his or her will, and that’s awful, but I’ve never seen someone come to my office or the clinic with bad intentions to medicate or commit an individual, although I’m sure it happens.

“We need that extra resource available to us. Of course, we can’t say it would have prevented the deaths of Detective Armel and Officer Garbarino, but it might have, and I would hope that the Virginia legislature will consider that.”

Whitbeck, who received his JD from the George Mason University School of Law in 2001, practices mental illness law, family law, criminal defense and civil litigation in Virginia.

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