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Case law developments: Federal circuit court decisions.

Probation Supervision of Sex Offenders and Delegation of Judicial Authority: Fifth Circuit rules District Court's probation requirement that the offender comply with "unspecified lifestyle restrictions" imposed by the offender's therapist during supervised release constitutes an unauthorized delegation of judicial authority and the oral sentencing pronouncement controls when in conflict with the written record.

United States v. Morin, No. 15-50197, 2016 U.S. App. LEXIS 14549 (5th Cir. Aug. 8, 2016).

Background: Robert Morin pleaded guilty to failing to register as a sex offender as required by the Sex Offender Registration and Notification Act (SORNA). The district court sentenced Morin to 33 months of imprisonment and five years of supervised release. Morin challenged two conditions of his supervised release. He contended that the district court impermissibly delegated judicial authority by directing that Morin comply with unspecified "lifestyle restrictions" that might be imposed by a therapist throughout the term of his supervised release. He contended that the breadth of this requirement permitted a therapist, not the court, "to decide the nature and extent of the punishment imposed." Morin additionally argued that the written requirement that he abstain from the use of alcohol during his term of supervised release was not included in the district court's oral pronouncement of the sentence, making it invalid.

Holding: The Fifth Circuit agreed and vacated the two challenged conditions.

Notable Point:

Scope of conditions of supervised release: The Fifth Circuit emphasized that only courts have the authority to impose conditions of supervised release beyond the mandatory restrictions. The court agreed that the manner and means of therapy during treatment may be devised by therapists. Therapists and other non-judicial actors could forward to the court recommendations for new conditions.

Medical Care and Substantive Due Process Violations in Correctional Facilities: Seventh Circuit rules that a plaintiff may submit into evidence a DOJ report showing "systemic flaws" in the jail's medical care of inmates under the hearsay exception for "factual findings from legally authorized investigations."

[Editor's note: While the substandard care addressed in this case did not involve mental health care, the court's ruling has important implications for litigation involving mental health care in public facilities.]

Daniel v. Cook Cnty., No. 15-2832, 2016 U.S. App. LEXIS 14886 (7th Cir. Aug. 12, 2016).

Background: Alex Daniel was a pretrial detainee when he suffered multiple fractures in his wrist after falling during a basketball game. Daniel was initially treated by an on-duty general practitioner with an elastic bandage and a sling and after a delay was eventually treated by an orthopedic specialist. Daniel was placed in a long arm cast, which was replaced by a short arm cast three weeks later. The orthopedic specialist instructed Daniel to return in another three weeks to have the short arm cast removed; however, Daniel's cast was not removed until ten weeks later. During this delay, Daniel filed multiple grievances with the jail staff seeking treatment for his wrist. Daniel was examined by another orthopedist who concluded that Daniel suffered from "residual and permanent stiffness of his left hand and wrist," more likely than not caused by the long immobilization in the short arm cast. Daniel filed suit and offered as evidence a report from the DOJ detailing systemic health care problems at the jail. The district court granted summary judgment for defendant Cook County ruling that the DOJ report was inadmissible hearsay.

Holding: The Seventh Circuit ruled that the DOJ report met the requirements for a presumption of admissibility in civil cases for "factual findings from a legally authorized investigation" under the Federal Rules of Evidence. The court reversed the grant of summary judgment and remanded for further proceedings.

Mental Health Treatment Regulation and First Amendment Claims of Patients: Ninth Circuit upholds California statute prohibiting state-licensed mental health providers from engaging in sexual orientation change efforts (SOCE) with minor patients, rejecting claims under the Free Exercise and Establishment clauses of the First Amendment.

Welch v. Brown, No. 15-16598, 2016 U.S. App. LEXIS 17867 (9th Cir. Oct. 3, 2016).

Background: California SB 1172 went into effect prohibiting mental health providers from engaging in SOCE with patients under 18 years of age. Plaintiffs provided counseling and other services involving SOCE and appealed the denial of a motion for a preliminary injunction to prevent the enforcement of California SB 1172. Plaintiffs claimed that SB 1172 violated the Free Exercise and Establishment Clauses by excessively entangling the state with religion and advancing or inhibiting a religion. Plaintiffs also claimed that SB1172 violated a substantive due process right to privacy in seeking a particular type of treatment.

Holding: On appeal, the Ninth Circuit affirmed the district court's judgment upholding the California statute. The court held that plaintiffs' claims failed because the scope of the law regulated conduct only within the confines of the counselor-client relationship and the prohibition against sexual orientation change efforts applied without regard to the nature of the minor's motivation for seeking treatment. The court also ruled that substantive due process rights did not extend to the choice of type of treatment or provider.

Notable Point:

Confines of the counselor-client relationship: The court specifically held that SB 1172 does not apply to clergy or pastoral counselors "as long as they do not hold themselves out as operating pursuant to their license."

Individuals with Disabilities Education Act (IDEA) and Mental Health Services: Ninth Circuit rules that a student was eligible for special education services based on prior psychiatric hospitalizations and suicide attempts even though those incidents occurred outside the school environment, and directs that an individualized education plan be developed for the student despite findings that the student was performing well at school.

L.J. v. Pittsburg Unified Sch. Dist., No. 14-16139, 2016 U.S. App. LEXIS 16201 (9th Cir. Sep. 1, 2016).

Background: L.J. was a primary school student exhibiting behavioral problems in grades two through five. L.J.'s mother repeatedly requested that the school district find L.J. eligible for special education under the IDEA, but the requests were denied. Through mediation, the school district agreed to transfer L.J. to another school, provide one-on-one counseling through a paraeducator, and provide an assessment by a school psychologist. Despite the services provided, L.J. continued to act out violently and made two suicide attempts resulting in his confinement to a psychiatric hospital, which caused him to miss six school days. L.J.'s mother filed a request for a due process hearing claiming the school district failed to provide a Free Appropriate Public Education (FAPE) by denying L.J special education services and that the district failed to make requested records relating to L.J.'s counseling available. An administrative law judge ruled that L.J. did not have any qualifying disabilities and even if he had such qualifying disabilities, L.J. was not eligible for special education services because his academic performance was satisfactory when he was able to attend school. On appeal, the district court ruled that L.J. had qualifying disabilities, but did not need special education services because of his satisfactory academic performance.

Holding: The Ninth Circuit reversed and held that the student was eligible for special education services. The court ruled that the student exhibited a need for services because his improved performance was due to his receipt of special education services, and that the student's psychiatric hospitalizations and suicide attempts were relevant to his eligibility for specialized instruction even though they occurred outside the school environment. The court also held that the school district committed procedural violations of the IDEA by failing to disclose school records and failing to conduct a health assessment.

Notable Point:

Qualifications for special education services: The court explained that a student with qualifying disabilities is nonetheless ineligible for special education services if support provided through general education services is sufficient to address the needs of the student. The Ninth Circuit ruled that the lower courts mischaracterized the specialized services L.J. was receiving as falling under general education services.

ADA Non-discrimination Requirement for "Public Accommodations": Tenth Circuit adopts a definition of "public accommodations" under the ADA that results in a commercial plasma donation center being prohibited from refusing to do business with a person with schizophrenia who seeks to donate plasma.

Levorsen v. Octapharma Plasma, Inc., 828 F.3d 1227 (10th Cir. 2016).

Background: Brent Levorsen had various psychiatric disorders including borderline schizophrenia. For years, Levorsen donated plasma in exchange for money in an effort to supplement his limited income. In May 2013, he attempted to do so at a Salt Lake City branch of Octapharma Plasma, Inc., but an employee at that location became aware that Levorsen had borderline schizophrenia. The employee informed Levorsen that he was ineligible to donate plasma out of a fear of him lashing out during the donation process, possibly injuring himself or others. Levorsen then obtained a note from his psychiatrists clearing him to donate, but Octapharma maintained its refusal to allow Levorsen to donate. Levorsen then brought suit claiming discrimination under the ADA. The district court granted Octapharma's motion to dismiss for failure to state a claim based on a determination that plasma donation centers do not fit the definition of a service establishment under the ADA.

Holding: The Tenth Circuit reversed the district court's finding and held that plasma donation centers fit the definition of service establishments under the ADA. The court reasoned that the "ordinary meaning" of service establishment was not tied to the purchase of services from the establishment; rather, an establishment that provides a service, which could include accepting and paying for donations of plasma, is the essence of the term and what the ADA sought to cover. The court remanded the case for further proceedings consistent with that determination.

State Court Decisions

Burden of Proof for Involuntary Commitment: Alaska Supreme Court rules that for involuntary commitment based upon the person's inability to care for self in the community, the petitioner has the burden to prove that, even with the services and supports that are available in the community, the person is too disabled to care for self and that commitment is the least restrictive alternative.

In re Hospitalization of Mark V., 375 P.3d 51 (Alaska 2016).

Background: Anchorage police took Mark V. into custody and transported him to an emergency psychiatric facility after he was found nude in public claiming to be the King of England. The treatment facility petitioned the superior court for an ex parte order authorizing Mark's hospitalization at Alaska Psychiatric Institute based on a determination that he was "gravely disabled" as a result of paranoid schizophrenia. The superior court granted the petition and ordered an evaluation period of 72 hours. During that initial evaluation period, Mark's treating psychiatrist filed a petition seeking to extend Mark's commitment for an additional 30 days. The superior court approved the 30-day commitment order based on testimony by Mark's psychiatrist that Mark's inappropriate behavior would continue if he were released before his manic symptoms improved.

Holding: The Alaska Supreme Court held that a 30-day commitment petition must allege less restrictive alternatives have been considered and petitioners must prove by clear and convincing evidence at a hearing that there are no less restrictive alternatives. The court found that this burden was met during the hearing and affirmed the decision of the superior court granting the 30-day commitment.

Notable Point:

No less restrictive alternative: The court explained that it is a constitutional prerequisite for involuntary commitment to prove that no less restrictive alternatives exist.

Intellectual Disability and Death Penalty: On remand from the U.S. Supreme Court decision in Hall v. Florida, Florida Supreme Court finds that Hall meets the clinical, statutory, and constitutional requirements to establish that Hall's intellectual disability precludes his being executed for the murders he committed.

Hall v. State, 41 Fla. L. Weekly 372 (2016).

Background: Freddie Lee Hall was convicted of murder in 1978 and his conviction and sentence were upheld by the Florida Supreme Court in 1981. After numerous appeals, Hall's case received cert to the U.S. Supreme Court on a claim that Florida's requirement that an inmate show an IQ test score of 70 or below before presenting any additional evidence of intellectual disability violated the Eighth Amendment. The U.S. Supreme Court agreed and remanded the case for a determination of Hall's intellectual disability.

Holding: The Florida Supreme Court found that despite Hall's IQ test scores above 70, he met the clinical definition of intellectually disabled based on evidence of organic brain damage, mental illness, and records indicating low intellectual ability. The court reversed the order of the circuit court denying post-conviction relief, vacated Hall's death sentence, and imposed a life sentence.

Notable Point:

Age of onset for intellectual disability: The court reiterated that Florida statute requires only that intellectual disability be demonstrated to have manifested prior to age 18, not that it be diagnosed prior to age 18.

Imposition of Probation Conditions Requiring Sex Offender Treatment: Florida Supreme Court rules that probation condition requirement that defendant attend sex offender therapy was invalid because it did not bear a "reasonable relation" to rehabilitation where defendant was charged with lewd and lascivious molestation but convicted of misdemeanor battery.

Villanueva v. State, 41 Fla. L. Weekly 319 (2016).

Background: Villanueva was charged with one count of lewd and lascivious molestation of a child older than 12 but less than 16 years old. The victim was Villanueva's daughter, who testified that Villanueva touched her breast and buttocks on three separate occasions. The jury acquitted Villanueva of lewd and lascivious molestation, but found him guilty of a lesser included offense of misdemeanor battery. The trial judge sentenced Villanueva to 90 days in jail followed by one year of probation. A special condition of the probation was a requirement that Villanueva participate in sex offender therapy pursuant to a Florida statute. That statute set probation standards including sex offender treatment for certain enumerated offenses, which included the charge of lewd and lascivious molestation, but not misdemeanor battery. Villanueva appealed, raising the issue of whether sex offender therapy was restricted by statute to only the enumerated offenses and whether the imposition the condition in this case comports with probation standards announced by the Florida Supreme Court in Biller. The district court upheld the sex offender treatment imposed by the trial court.

Holding: The Florida Supreme Court ruled that sex offender treatment was not limited to certain enumerated offenses, overruling a lower court decision in Arias v. State, 65 So. 3d 104 (Fla. Dist. Ct. App. 2011). The court also ruled that the imposition of sex offender treatment in the present case was invalid under Biller, because the condition did not rationally relate to future criminality.

Notable Point:

Rational relation to future criminality: The court explained that Villanueva's conviction of the lesser included offense of misdemeanor battery indicated that the touching was not committed in a lewd and lascivious manner; therefore, he should not be a candidate for sex offender treatment. The court also relied on the fact that Villanueva did not have any prior convictions.

Provider Liability and Duty of Care in Outpatient Mental Health Setting: In medical malpractice suit against psychiatrist for suicide of patient, Supreme Court of Florida rules that while there is no provider duty to prevent suicide in the outpatient setting, there is still a duty of care owed to the patient and the case presented a genuine issue of material fact as to whether that duty was breached.

Chirillo v. Granicz, 41 Fla. L. Weekly 345 (2016).

Background: Robert Granicz filed a medical malpractice case against his deceased wife's primary care physician, Dr. Joseph Chirillo, alleging he breached his duty of care in treating her, which resulted in her suicide. The decedent had a history of depression and began seeing Dr. Chirillo, who changed her medication from Prozac to Effexor. Following that change the decendant called Dr. Chirillo's office and told his medical assistant that she had stopped taking the Effexor because of side effects and that she had not felt right for the past few months. This information was given to Dr. Chirillo, who changed the decedent's prescription to Lexapro. Dr. Chirillo's office called the decedent and told her to pick up her new prescription, but did not request that she schedule an appointment with Dr. Chirillo. The decedent picked up her prescription later that same day, but Granicz found her body hanging in their garage the next day. Dr. Chirillo filed a motion for summary judgment claiming that he owed no duty to prevent a patient's unforeseeable suicide while the patient was not in his control. The trial court granted the motion, but the Second District reversed on appeal.

Holding: The Supreme Court of Florida affirmed the decision of the Second District and held that the plaintiff showed a genuine issue of material fact regarding the proximate cause of his wife's suicide. The court remanded the case for trial.

Notable Point:

First District Case: The Florida Supreme Court explicitly disapproved the analysis regarding duty used by the First District in Lawlor v. Orlando, 795 So. 2d 147 (Fla. Dist. Ct. App. 2001).

Provider Liability and Duty to Warn Third Parties in the "Zone of Danger" of Potential Harm by Patient: Vermont Supreme Court replaces its May 6, 2016 opinion with an amended opinion, which still finds the existence of a duty of mental health care providers to warn a patient's caregivers of dangers posed by a patient if those caregivers are actively involved in the patient's treatment plan and are within the "zone of danger" posed by the patient's violent propensities.

Kuligoski v. Brattleboro Retreat, No. 14-396, 2016 Vt. LEXIS 106 (Sep. 16, 2016).

Background: E.R. was involuntarily committed to state mental health facilities and was diagnosed with a schizophreniform disorder before being transferred to Battleboro Retreat. After being discharged from the retreat to the home of his parents, who were his ongoing caregivers, and while undergoing outpatient treatment with Northeast Kingdom Human Services (NKHS), E.R. assaulted his father, Michael Kuligoski. Plaintiffs filed suit against Battleboro Retreat and NKHS for failure to warn of E.R.'s danger to others, failure to train E.R.'s parents in handling E.R., failure to treat, improper release, and negligent undertaking. The superior court granted the defendants' motions to dismiss for failure to state a claim and plaintiffs appealed.

Holding: The Vermont Supreme Court reversed the rulings of the superior court relating to the failure to warn and failure to train claims. However, the court explained that the duty to warn included elements of the failure to train claim and held that there was no independent cause of action for a failure to train. The court also held that a provider has no duty to convey information in violation of HIPAA.

Notable Points:

Duty to warn: The court explained that the duty to warn is narrow and "applies only when a caregiver is actively engaging with the patient's provider in connection with the patient's care or the patient's treatment plan (or in this case discharge plan), the provider substantially relies on that caregiver's ongoing participation, and the caregiver is himself or herself within the zone of danger of the patient's violent propensities."

[section] 43 of the Restatement Third of Tort Law: The court rejected the view that there is a duty to third parties based on the undertaking of another.

Judicial Order Authorizing Involuntary Administration of Medication in Hospital Setting: Vermont Supreme Court reverses lower court order authorizing medication over objection of involuntarily committed patient because the lower court failed to make specific findings on whether patient's written statement of objection to medication, made prior to hospitalization, was a competent refusal that had to be honored under Vermont law.

In re I.G., 2016 VT 95

Background: I.G. was hospitalized at the Vermont Psychiatric Care Hospital (VPCH) pursuant to a court order stemming from an arrest for assaulting his girlfriend. I.G. was previously hospitalized at VPCH and was diagnosed with schizophrenia. When he was discharged from VPCH after the previous hospitalization, he started living at a residence for people with mental illness. While there, I.G. signed a document purported to be an advance directive stating that he did not want any psychiatric medication. Following I.G.'s current hospitalization, VCPH filed an application to involuntarily medicate I.G. After a hearing, the trial court ordered I.G.'s involuntary medication for 90 days. I.G. appealed.

Holding: The Vermont Supreme Court ruled that the trial court did not adequately address the issue of whether the purported advance directive was a competent written expression or preference regarding medication according to Vermont statute. The court reversed and remanded for a determination of I.G.'s competency at the time of signing the advance directive.

Notable Point:

Advance directive: The Vermont Supreme Court reversed the decision of the trial court even though the advance directive at issue in this case did not meet the statutory requirements of an advance directive because it was not signed by two witnesses.

Employment Discrimination in Mental Health Facilities: Washington Supreme Court rules that psychiatric hospital cannot modify staff assignments to accommodate racial prejudices of patient, even when patient threatens violence if staff members of a particular race are assigned to him.

Blackburn v. Dep't of Soc. & Health Servs., 375 P.3d 1076 (Wash. 2016).

Background: Plaintiffs were employees of a psychiatric hospital and challenged alleged discriminatory staffing practices. Employees were generally assigned a particular home ward, but could be reassigned based on a "pull list." The pull list was meant to ensure that employees were reassigned to other wards on an equal basis. M.P., a particularly violent patient, threatened an African-American staff member, which resulted in a decision not to assign any African-American staff to that patient's ward to ensure staff safety. The following day, a nurse directed that a white staff person be assigned to M.P.'s ward, which would have been a deviation from the pull list assignment system. The plaintiff employees sued claiming employment discrimination and disparate treatment. The trial court dismissed the claims, concluding the adverse employment action was not severe enough to be actionable and the overriding factor was safety. The plaintiffs appealed.

Holding: The Washington Supreme Court ruled that there were no valid legal justifications for the race-based determinations in the staffing directive. The court reversed the decision of the trial court on this claim and remanded for a determination of damages.

Notable Point:

Bona fide occupational qualification (BFOQ): The court found it doubtful that a BFOQ defense could apply in this case, but ruled that it had been waived by the defense at trial.

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Title Annotation:mental health law decisions
Publication:Developments in Mental Health Law
Date:Oct 1, 2016
Previous Article:National Mental Health Services Survey: Virginia summary.
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