A week ago, on February 7th, the Alaska Supreme Court issued its decision in Daniel G., and I am writing to obtain views on whether PsychRights should ask the United States Supreme Court to take the case on appeal. (See What is the Emergency? for earlier discussion of this case) There are close to 9,000 such requests, called a petition for certiorari each year, with the Supreme Court taking around 80, so the odds are very bad to begin with. It is not quite that bad because around 7,000 are prisoner appeals and only a handful of those are taken.
So, one question is whether it is even worth the effort in light of the unlikelihood of it being taken. However, I also have some concerns about whether people think it would even be good if we tried and won.
The issue is whether it is a denial of due process – to have a court proceeding to decide whether someone who has been brought into a psychiatric emergency room by the police for an (up to 24 hour) evaluation – to be transferred to a psychiatric hospital for an (up to additional 72 hour) evaluation (not counting weekends and holidays), without giving the person any notice that court proceedings have been brought against him or her and given an opportunity to tell their side.
The hallmarks of procedural due process are notice and an opportunity to be heard, which means the person is informed of the allegations against him or her and has the right to present his or her side to the court before it makes its decision. Like all constitutional rights, however, these rights are not absolute. The classic example of an exception is the search warrant situation, where if the person was given notice and an opportunity to be heard about whether their house should be searched, if there was something there it would disappear before the court had a chance to decide on the search.
Basically, the rule in PsychRights‘ view was stated in a case called Zinermon v. Burch, in which the United States Supreme Court held that if the state can reasonably provide a hearing before depriving somone of his liberty, it is required to do so. In PsychRights‘ view the state can reasonably provide a hearing when someone is in custody in the psychiatric emergency room and presumptively not a danger to self or others.
The Alaska Supreme Court did not address this contention, holding instead that having the ex parté proceeding is a fast way to make sure that someone is not confined improperly. This is based on its view that having what it calls a “neutral” judge review the ex parté petition to determine whether further detention was warranted after “disinterested” staff at the psychiatric emergency room had determined a full psychiatric evaluation was needed results in meaningful judicial scrutiny:
“The evaluation petition was filed by disinterested medical staff after determining that Daniel was in need of a full psychiatric evaluation. A neutral magistrate judge promptly reviewed the petition and determined that it stated adequate cause to support an evaluation.”
My problem with this is that the vast majority of such ex parté petitions, not just in Alaska, but around the country, are essentially rubber stamped. Daniel’s release shortly after the ex parté order was issued is the exception, not the rule in my experience.
Still, I do think that requiring the person be given notice and an opportunity to have his say, presumably with an appointed attorney (don’t get me started) will add some time before a judicial decision is made. Since in the vast majority of cases the ex parté petition is granted and the person is on the road to a commitment, I don’t think it will lengthen the confinement in very many cases. Also, it is not that I think requiring such a procedure will dramatically reduce involuntary commitments, which is really a euphemistic term for psychiatric imprisonment, primarily because the appointed lawyers don’t do much, if anything, on behalf of their clients.
Still, I do think that anything that makes it harder to confine someone makes it more likely that another “solution” will be found. In my view, under the current regime it is so easy to force people (including psychiatric imprisonment) that the psychiatrists don’t even try to work something out with their patients. It is “the path of least resistence.” To the extent that it is made harder, then other approaches, such as spending the time to try and come to some sort of agreement, try to make their patients feel safe and heard, etc., becomes more likely. Dr. Loren Mosher’s testimony as follows in the Myers case exemplifies this:
n the field of psychiatry, it is the therapeutic relationship which is the single most important thing. . . . Now, if because of some altered state of consciousness, somebody is about to do themselves grievous harm or someone else grievous harm, well then, I would stop them in whatever way I needed to . . . In my career I have never committed anyone. . . . I make it my business to form the kind of relationship [through which the mentally ill person and I can establish an ongoing treatment plan that is acceptable to both of us.
However, the big question is whether or not folks think PsychRights should ask the United States Supreme Court to hear an appeal in spite of the likelihood that if we won, it would take longer for people who are facing involuntary commitment to get a judicial decision. In this regard, I might point out that when I represent someone in a commitment hearing I tell them it will take me at least a day or two to get ready. I tell them if they don’t want to wait that long for a hearing, they can use the public defender and almost certainly be committed, or they can use me, wait a day or so, and have a real shot of not being committed. This is a similar situation.
From my perspective, it would be better to just allow the psychiatric emergency room to transfer the person to the hospital for further 72 hour evaluation, rather than have what I consider an illegitimate court proceeding. However, other people may disagree. I just think it is important that if the court system is invoked that the normal due process rights be honored for people accused of being mentally ill.
So, please let me know what you think about whether we should ask the United States Supreme Court to hear an appeal on this issue by posting a comment.