Responding to concerned family members during a mental health crisis: reflections on a critical incident.
Magistrates serve a vital role in Virginia's legal system, and it is a role that is increasingly complex and demanding. As judicial officers, their duty is to provide an independent and unbiased review of facts and claims presented to them before authorizing government action that takes or restricts a person's liberty or property. Magistrates issue arrest warrants, search warrants, and subpoenas; they set or deny bail to individuals who have been taken into custody; and they perform a number of related functions set out in the Virginia Code, which is the sole source of their authority.
Magistrates have been given specific authority, in Title 37.2 of the Virginia Code, to restrict the liberty of a person who is alleged to be in a mental health crisis and in need of psychiatric hospitalization or treatment. Specifically, magistrates can issue emergency custody orders (ECOs), authorizing law enforcement officers to take such a person into custody and transport them to an appropriate site for a mental health evaluation; they can also (following an evaluation) issue temporary detention orders (TDOs) authorizing the temporary placement of such a person in a psychiatric facility (until a hearing can be held before a judge or special justice to determine whether the person should remain in such placement).
Virginia Code Sections 37.2-808 and 809 set out that a magistrate "shall" issue an ECO or TDO for a person only if the available evidence provides "probable cause" to find that (1) the person has a mental illness; (2) there's a "substantial likelihood" that, due to that mental illness, the person will, in the near future, (a) cause serious physical harm to self or others (as evidenced by "recent behavior" and "other relevant information", if any); or (b) suffer serious harm due to lack of capacity to protect or provide for self; (3) the person needs hospitalization or treatment; and (4) the person is unwilling to volunteer or incapable of volunteering for hospitalization or treatment.
Those same sections go on to provide that, when considering whether there is probable cause to issue an ECO or TDO for a person, the magistrate may consider--in addition to the information in the petition that is filed seeking the psychiatric hospitalization of the person--the following: "(1) the recommendations of any treating or examining physician or psychologist licensed in Virginia, if available, (2) any past actions of the person, (3) any past mental health treatment of the person, (4) any relevant hearsay evidence, (5) any medical records available, (6) any affidavits submitted, if the witness is unavailable and it so states in the affidavit, and (7) any other information available that the magistrate considers relevant to the determination of whether probable cause exists to issue" the ECO or TDO.
As noted in a presentation recently made to the SJ 47 Subcommittee to Study Mental Health Services in the Commonwealth in the 21st Century (which can be found here), "mental health law is one of the largest blocks of instruction" in the certification process for magistrates, and they participate in "mock mental health hearings" as part of that training. Even with that preparation, each magistrate faces a challenging task in gathering the necessary facts and applying the statutory standards to decide whether a person alleged to be in mental health crisis should be taken into custody.
For a family member who brings to the magistrate's office the lived experience of having seen their loved one in mental health crisis, and who firmly believes that their loved one is in danger, the facts may seem obvious and the standards may seem like impediments to getting their loved one help. For Ms. Hall, who had found help for her daughter from magistrates in prior situations that, to her, were similar to the one in February of 2015, the denial of her request for help left her surprised, confused, and upset. She also felt helpless, and did not know what else to do.
Ms. Hall reported in an interview that her daughter's life growing up gave Ms. Hall no clue that her daughter's life would end in suicide. Her daughter was a high achiever at school, became a registered nurse by age 21, and enjoyed professional success and a large circle of friends and colleagues. According to Ms. Hall, her daughter's descent into psychiatric instability and extreme behaviors--episodes of mania (loud and pressured speech, inappropriate laughter, dangerous driving and risk taking), alcohol abuse, multiple suicide attempts, periods of disorientation and memory loss, and periods of depression and incapacity--began after her daughter entered what Ms. Hall observed to be an abusive relationship. According to Ms. Hall, when her daughter's condition or behaviors became so extreme that Ms. Hall feared that her daughter was placing herself or others in danger of harm, she went to the magistrate in Chesapeake, the city where her daughter was living at the time.
Ms. Hall reported that each time she went to the magistrate's office and described to the magistrate on duty her daughter's condition and behaviors and the reasons for her concerns, the magistrate asked Ms. Hall to fill out a petition seeking involuntary commitment of her daughter, and entered an emergency custody order (ECO) to arrange for Jodi Hall-Gadshian's transport to a site where she could be examined by an evaluator from the Chesapeake Community Services Board (now Chesapeake Integrated Behavioral Healthcare). Each time, according to Ms. Hall, the evaluator found that her daughter met the criteria for a Temporary Detention Order (TDO), and her daughter was hospitalized. Unfortunately, those hospitalizations provided only temporary respite and stability. Ms. Hall reports that, during the last three years of her daughter's life, she never remained out of the hospital for more than a few months at a time. Some of those hospitalizations occurred after Ms. Hall had to intervene to stop her daughter from actively attempting to take her own life.
By February of 2015, Jodi Hall-Gadshian had moved to Virginia Beach. When she was discharged from a psychiatric hospital on February 25 of that year, Ms. Hall and her husband both observed that their daughter "wasn't right." Two days later, Ms. Hall's other daughter contacted her by phone. She reported that she was in the car with Jodi and was frightened by her sister's behavior. She reported that Jodi was drinking alcohol, driving fast and dangerously, had the radio blasting and was laughing inappropriately. These were all behaviors that Ms. Hall recognized as signs that her daughter was deteriorating again and that, without treatment intervention, she would harm herself or someone else.
Ms. Hall reported that she went to the magistrate's office in Virginia Beach for help, and she described her experience there. (What follows is a report of Ms. Hall's account alone. The Judicial Canons provide that it is a violation of the Canons for judicial officers to comment on the factual circumstances relating to the exercise of their judicial duties except in a proper legal forum. Given that, DMHL has not attempted to identify or interview the magistrate.)
According to Ms. Hall, she told the magistrate on duty that "I need some help with my daughter." She then explained that her daughter had just recently been discharged from a psychiatric hospital and was acting "wild and crazy"--speeding and driving dangerously, with the radio "blasting", and her sister being afraid of harm. Ms. Hall expressed to the magistrate that her daughter was a threat to herself and to others on the road. When the magistrate asked if her daughter was drinking (alcohol), she replied "yes." The magistrate responded that her daughter's behavior was "typical" of people who are drinking alcohol, and that this was not enough to allow him to act. Ms. Hall noted to the magistrate that her daughter had a history of multiple involuntary psychiatric hospitalizations, and the magistrate, according to Ms. Hall, confirmed this by checking the electronic record available to him. After looking at that record, the magistrate's response was that Ms. Hall was "going on her [Jodi's] past history", and that Jodi's condition and behavior as reported by Ms. Hall did not give him "enough to go on." As a result there was nothing he could do.
In response to an interview question, Ms. Hall reported that the magistrate did not request or take a written statement from Ms. Hall or indicate that she could file a petition to request her daughter's involuntary commitment. The magistrate did not refer Ms. Hall to any of the city's mental health services or provide any information regarding those services. The magistrate did note that there was another magistrate's office in the city (located a considerable distance away) and that she might get a different response there. To Ms. Hall's knowledge, no written record was made of her encounter with the magistrate.
Ms. Hall, in her interview, noted that all she wanted was for someone with mental health expertise to "check on" her daughter, whose history told Ms. Hall that she was again in serious trouble. Ms. Hall did say that she later confirmed that her daughter had attended a scheduled appointment at the hairdresser later that same day, apparently without incident. At that point, she hoped that her daughter had then gone home and gone to sleep. Although Jodi Hall-Gadshian did return home, she killed herself a few hours later.
Like every critical incident, the Jodi Hall-Gadshian case creates an opportunity to reflect on important aspects of the Commonwealth's statutes and practices relating to emergency mental health interventions. They include the following:
1. The legal threshold for state intervention--Virginia's requirement that there be probable cause for finding a "substantial likelihood" of "harm" before an ECO can be issued for a person alleged to be mentally ill is similar to the standard used in a majority of the states in the U.S., but it has been criticized as preventing more timely intervention for someone who is in crisis and needs treatment but is too incapacitated to recognize their need for treatment. (See, for example, this article that was submitted by the Virginia Treatment Advocacy Center as part of its presentation to the SJ 47 Subcommittee to Study Mental Health Services in the Commonwealth in the 21st Century.) Even within this "harm" framework, however, there are the additional, and often difficult, issues of how the evidence of past conduct should guide the assessment of current threat. In addition, when considering whether to issue an ECO (or TDO), how much action, if any, should a magistrate take to gain information from the various sources listed in the statute?
2. ECO/TDO process--Sections 37.2-808 and 809 provide that a magistrate may issue an ECO or TDO "upon the sworn petition of any responsible person, treating physician or his own motion." In addition, as noted above, the evidence that a magistrate can consider in deciding whether to issue an ECO or TDO includes the sworn petition. Given this, when an ECO or TDO is being sought by a family member or other responsible person, should the magistrate have that person fill out a petition in every instance, or only when, based upon the potential petitioner's evidence, the magistrate finds that there is sufficient evidence to support an ECO (or TDO)? The language in both sections regarding the evidence to be considered by the magistrate appears to assume that a petition is filed before the magistrate makes a decision on the sufficiency of the evidence for an ECO or TDO. The practice in Virginia Beach (and at least some other localities), however, appears to be one in which the concerned family member or other responsible person requests an ECO (or TDO, as the case may be) and presents the evidence supporting that request without first filing a petition for involuntary admission. Although this approach seems more convenient and efficient, regularity of the process might be enhanced if a petition were filed in every case for the magistrate's formal consideration. This matter should be studied.
The events in this case highlight another important question about the process: What recourse did Ms. Hall have when the magistrate denied her request for an ECO? If the magistrate denies the request for an ECO (or TDO), should there be an opportunity for immediate formal review of that decision? In the absence of a process for direct review, the Virginia Supreme Court's website invites dissatisfied citizens to file a formal complaint with the Court. Does this process provide a sufficient review and ensure an adequate response? How does the absence of any written record affect that procedure?
2. Records--Regardless of what procedure is decided upon for processing requests for ECOs and TDOs, should magistrates be required to maintain a record of all requests that are denied? Should reasons for denials be recorded? (Currently, when TDOs are issued, the TDOs and all related documents become part of the file ultimately maintained by the District Court Clerk's office.) Should database systems be improved to allow uniform collection of such records?
3. Referral for services/less restrictive intervention--When there is insufficient evidence to support an ECO or TDO, should there be a standard protocol for referring the family to emergency mental health services, to approach the crisis from a treatment standpoint and look for other ways to resolve the crisis? Do local Community Services Boards (CSBs) have the capacity to accept such referrals?
4. Wellness and crisis planning--As a person who had experienced multiple involuntary psychiatric hospitalizations and who had a supportive family, Ms. Hall-Gadshian seems to have been a person who would have benefitted significantly from having a wellness and crisis plan--including an advance directive for mental health care--to provide daily guidance on maintaining wellness and to address her treatment in a future crisis (e.g., having an agent to make mental health care decisions for her, including temporary psychiatric hospitalization) if she became incapacitated during a crisis. Did she receive any education or assistance on such planning? (Her mother, Ms. Hall, reports that such wellness and crisis planning was never suggested to her as a possible strategy for helping her daughter, and that her daughter never mentioned this.) How available is such education and assistance to others? What are the obstacles to implementing such a plan--especially the advance directive--during a crisis?
These cases can be extremely difficult, and in any number of them reasonable people can disagree on whether the available facts support the findings required by law for the issuance of an ECO or TDO. Knowing this and knowing what is often at stake for these individuals and their families, the questions raised above by the case of Jodi Hall-Gadshian merit ongoing attention.
|Printer friendly Cite/link Email Feedback|
|Author:||Oliver, John E.|
|Publication:||Developments in Mental Health Law|
|Date:||Dec 1, 2015|
|Previous Article:||The gun violence restraining order: an opportunity for common ground in the gun violence debate.|
|Next Article:||Response time of public outpatient mental health providers to requests for emergency evaluations.|