Clients do not always show clear indications of their current or past mental health status. For that reason, a general knowledge of the signs and symptoms of the more common diagnoses can prove extremely helpful. This article focuses on some practical suggestions for the basic practitioner, as well as available resources in the psychiatric/legal community. However, it can only touch on some of the very difficult and often complex issues that arise when dealing with a mentally ill client. An effort is now underway to develop a full-day CLE addressing in much greater depth the many legal, ethical and practical issues that often arise in assisting these types of clients with their legal problems.

Ethical and practical issues can arise when the client’s mental competency is called into question. However, the client’s mental status may vary significantly during the course of your representation. In addition, it is often difficult to evaluate a client’s legal competency because the symptoms of mental illness that impair a client’¬ß¬ßs judgment or social interaction may be difficult to distinguish from the same difficulties exhibited by those clients with limited educational or social skills. This concern can arise when the client is making decisions that are clearly not in his or her own best interest.

CIVIL LAW

Two significant areas of civil practice involving clients with mental illness include involuntary hospitalization and guardianship (of the person and/or of the estate). Practice in either of these areas requires, at a minimum, some general knowledge of serious mental health disorders. This type of practice also can require patience and client “hand-holding,” particularly during the early stages of representation or guardianship. An example includes the initial period after approval of the guardianship, while the guardian develops a system for paying bills of the ward with checks co-signed by the attorney.Ohio’s statutory scheme for involuntary hospitalization is found in Ohio Revised Code Chapter 5122, Hospitalization of the Mentally Ill. The statutes are extremely difficult to summarize in a brief article. A person can be involuntarily hospitalized (also known as civil commitment or “72 hour hold”) if two conditions are met. The individual must be diagnosed with a mental illness and must also be subject to hospitalization for treatment.² A person with alcohol or chemical addiction alone does not meet these criteria, unless a mental illness, and not the addiction, is causing the suspect behavior. In order to be detained for treatment, the individual must also pose a risk of serious physical harm to himself or others, or a passive risk of harm to himself.³ A passive risk to self could include, for example, refusal to eat or drink.

The process of obtaining an involuntary hospitalization can occur in several ways. The individual may be brought to the hospital (normally to Psychiatric Emergency Services at University Hospital) by family, police or others. In this case, the physician and other mental health professionals make an evaluation, and decide within 72 hours (3 court days) whether to admit or release the individual. Another type of involuntary hospitalization occurs when a concerned person or police authority contacts the University Hospital Mobile Crisis Unit at University Hospital to evaluate the suspected mentally ill person at their residence.

One can also obtain an involuntary hospitalization outside the presence of the person displaying non-threatening symptoms of mental illness, through probate court. This procedure is sometimes referred to as a “walk-in affidavit.” This method can sometimes present a number of problems, including the lack of a direct initial examination by a physician or other mental health professional, or even a falsified affidavit. Once a probate court commitment is ordered, the individual is transported to the hospital by the Sheriff’s Department.

After the person is involuntarily hospitalized, the individual is afforded a number of legal protections. These are more fully described in Revised Code Chapter 5122, as well as in local probate court rules.⁴

Guardianship of either a person or an estate is another area of probate law often involving the mentally ill. A guardianship is considered in situations where the person is determined to be incapable of managing their daily activities of living or their financial affairs. Ethical and practical considerations arise in light of the legal restrictions and probate court oversight involved with guardianships.⁵ In addition, once a person is determined incompetent, the guardianship may not be terminated without adjudication of that individual’s restoration to competency.

Other less restrictive alternatives that may be considered include conservatorship, power of attorney, inter vivos trust or representative-custodial payee power.

CRIMINAL LAW

Criminal defendants commonly display behaviors that can be difficult to distinguish from actual mental illness; these may include poor communication skills and behavioral problems. Many clients also have issues with alcohol or chemical dependency, with or without diagnosed mental illness. The attorney must properly distinguish a client’s behavioral issues from actual mental illness or other factors directly or indirectly affecting an individual’s legal competency. It is also imperative to distinguish those few clients who feign illness or lack of competency from those who do not.When a client is charged with a serious crime, it is crucial to make a prompt initial determination of the client’s competency to stand trial. In Ohio, a criminal defendant’s competency is presumed. If the issue of a client’s competency is raised by anyone, it is determined under a two-part test. First, the client must demonstrate the ability to understand the nature of the charge or charges. Secondly, the client must have the ability to aid in his or her defense. (See R.C. ¬ß 2945.371). The determination is based on examiner’s reports or other expert testimony.

While many practicing criminal attorneys can develop practical skills and experience to aid in the initial screening of a client, most rely on the opinions of medical or mental health experts. Initial assessment information may come from family or friends, but the most reliable information regarding the client will come from the client’s treatment records. HIPAA, of course, has made the receipt of informal accounts or records of a client’s treatment or diagnosis from medical providers much more difficult, if not impossible.

Once a client is found competent to stand trial, the attorney must make a decision regarding a plea of not guilty by reason of insanity (NGRI) (See R.C. ¬ß 2901.01 and related sections.). It is well understood among members of this area’s criminal defense bar that, for a number of reasons, NGRI verdicts are few and far between. While there may be exceptions, NGRI verdicts are rarely found without a well-documented “track record” of the client’s mental illness, borne out by treatment records of hospitals and physicians.

The first step is always to make a prompt and accurate initial evaluation of the client’s mental status. Criminal defense attorneys make immediate and prompt use of appropriate outside resources available to them, including information obtained from family, friends and treatment records. They may also seek an independent medical/ psychiatric evaluation. This “outside” information or independent evaluation is also important because clients with mental illness or brain disorders are poor historians of their treatment and medical history.

An attorney should recognize that a client’s competency status can change throughout the course of representation. Persons who are marginally competent can decompensate at any time during the course of the case. This can occur primarily from the individual’s refusal to comply with medication, or even from the stress of the proceedings. The client’s competency can be raised at any time that the attorney believes the individual is not legally competent. Additionally, some clients may refuse to allow their attorney to even raise the issue of competency. This can occur for a variety of reasons, but the attorney is ethically bound to raise the issue even if the client refuses to do so. This can present a number of difficult ethical choices.

A frequently used resource for the local criminal defense bar, particularly for indigent clients, is the Hamilton County Court Clinic (513-352-1342). Many situations or client circumstances also warrant the involvement of independent psychiatrists, psychologists or other mental health providers in properly evaluating the client’s competency or other mental health status indicators. One possible source for such experts includes an expert list provided by professional organizations such as the Ohio Association of Criminal Defense Lawyers (www.oacdl.org).

Information regarding additional non-legal resources, including psychiatric emergency service contacts, mental health providers, and family or individual support groups, is available through NAMI Hamilton County (513-948-3094) or Mental Health Access Point, the Hamilton County Mental Health Board’s “front door” for obtaining mental health services in Hamilton County (513-558-888).

HELP IS ON THE WAY

In addition to the resources noted here, individuals representing several local and state groups are working to develop a full-day CLE to address many of the challenges identified in this article. The current “working group” includes the following: Community Service Committee of the Cincinnati Bar Association, NAMI Hamilton County, and Legal Aid of Greater Cincinnati (Timothy R. Juenke). Support and direction are also being provided by a similar group formed in Columbus, consisting of persons from the Ohio Supreme Court’s Advisory Committee on Mentally Ill in the Courts, the Ohio Attorney General’s office, NAMI Ohio, and the Legal Aid Society of Columbus. Interested CBA members are encouraged to contact the authors, the CBA, or Tim Juenke to offer suggestions for topics or speakers, or provide other assistance in developing this CLE. CBA members Mary Jill Donovan and David A. Ranz practice at Donovan Law. Donovan’s practice is focused in the areas of criminal defense, family law, and civil litigation. Ranz, a board member of NAMI Hamilton County, practices in several areas, including elder law, probate and estate administration and Social Security disability.________
ENDNOTES:
1 Brain disorder is a term used by NAMI and other mental health advocacy groups to help overcome the stigma often associated with mental illness.
2 See R.C. § 5122.01(A) and (B)
3 See R.C. § 5122.01 (B) 1-4
4 See, for example, Hamilton County Probate Court Local Rule 75.1(A)
5 See R.C. § 2901.01

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Authors’ acknowledgements: This article is primarily based on interviews with several area attorneys, including A. Norman Aubin (Faulkner &Tepe), Janet E. Pecquet (Beckman Weil Shepardson &Faller), Colleen B. Laux (Schwartz Manes &Ruby), Andrea Zigman (Legal Aid Society), Perry L. Ancona (Perry L. Ancona Co. LPA) and Dale G. Schmidt (solo practice). Their generous assistance is greatly appreciated, and this article would not have been possible without it. The authors also used the resources of the Hamilton County Probate Court’s website (www.probatect.org), and express appreciation to Judge James Cissell and the Ohio Association of Probate Judges for making it available to practicing attorneys.

As seen in the October 2004 issue of the Cincinnati Bar Association Report.