Ensuring Access to Justice: Courtroom Considerations for Accommodating Mental Illness and Cognitive Disabilities

1. Ensuring Access to Justice: Courtroom Considerations for Provding Accommodations to People with Mental Illness and Cognitive Disabiliites September 15, 2017 Atlanta, Georgia Talley Wells, Atlanta Legal Aid Society, Inc. IHDD, University of Georgia Adjunct Professor, Georgia State School of Law

2. Session Objectives • Familiarize participants with common issues that arise for people with mental illness and cognitive disabilities; • Provide examples of accommodations that can be considered; and • Provide resources for consultation and possible additional training.

3. Defining Mental Illness & Cognitive Disabilities • Mental Illness: Wide range of mental health disorders impacting mood, thinking, and behavior. • Cognitive Disabilities: Disabilities impacting cognitive or intellectual functioning. • These are imprecise umbrella terms. • Mental illness and cognitive disabilities are significantly different and should not be confused. Accommodation must be tailored to individual’s actual impairment.

4. Draft Companion Guide • We want your feedback. Please review the draft Mental Illness and Cognitive Disabilities Companion Guide to Access to Justice for People with Disabilities:  A Guide for Georgia Courts Give us comments!

5. ADA Title II “… no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. 12132 (emphasis added)

6. Definition of Disability • A physical or mental impairment that substantially limits one or more major life activities; • A record of such an impairment; • Is regarded as having such an impairment.

7. Qualified Individual with a Disability An individual is qualified if s/he meets the essential eligibility requirements of the program, benefit, or activity with or without: • Reasonable modifications to rules, policies or practices; • Auxiliary aids and services; or • Removal of architectural, communications or transportation barriers.

8. Unique Challenges • Mental Illness/Cognitive Disabilities often less apparent than other disabilities. • Accommodations also can be harder to identify • The stress of court proceedings can exacerbate impairments. • Wide variety of different diagnoses, symptoms, and conditions requiring different accommodations.

9. Mental Illness • Impacts one in 5 adults, according to 2015 data NIMH • ADA presumes following conditions are covered: major depressive disorder, bipolar disorder, post-traumatic stress disorder, and schizophrenia • Others are if substantially limit a major life activity 28 C.F.R. 35.160(a)

10. Mental Illness in Children • About half of individuals who have mental illness develop it by age 14. • Children with mental illness often are not identified or treated. • Children with mental illness sometimes exhibit different symptoms than adults. • Different terminology in special education in schools from medical terminology.

11. Mental Illness • Assessing Credibility: behaviors or symptoms of mental illness should not on their own be determinative of credibility. Even person with significant delusions could still recall a real event that occurred to him or her. • Medication: Usually not a cure by itself and may have side effects. An individual usually has right to not take medication.

12. Mental Illness: Possible Accommodations • Breaks • Timing of court proceedings • Providing information in alternative formats to ensure it is understood • Changing courtroom locations • Speaking slowly and distinctly • Allowing individual to assist. • Allowing use of service or comfort animal.

13. Mental Illness: Possible Accommodations • Other accommodations outlined in Mental Illness and Cognitive Disabilities Companion Guide • Ask the individual or his/her loved ones (if appropriate) for accommodations that worked in other settings • Consult expert

14. Mental Illness: Common Types • Anxiety Disorder • Post-Traumatic Stress Disorder • Depression • Substance Use Disorder • Bipolar Disorder • Schizophrenia • Obsessive Compulsive Disorder

15. Cognitive Disabilities • Umbrella (imperfect) term for disabilities involving attention, intellect, judgment and/or behavior. • Includes intellectual disabilities, traumatic brain injury, dementia, and learning disabilities. • Main impediments/barriers occur when directions are not understood or there is ineffective communication

16. Cognitive Disabilities • Many individuals with cognitive disabilities can live independently, others can live independently with assistance. • Most do not need guardians and should not be required to have one when not necessary.

17. Cognitive Disabilities Rule 1.14 of Georgia Rules of Professional Responsibility can can be helpful guide for courts in many situations: “lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with” a client with a mental impairment.  However, when a lawyer believes a client is at risk of substantial harm and cannot act in his or her own interest, the lawyer can “take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client, and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.”

18. Cognitive Disabilities • Many individuals with cognitive disabilities can live independently, others can live independently with assistance. • Most do not need guardians and should not be required to have one when not necessary.

19. Cognitive Disabilities: Assistance of Others • Family members or others who assist individual can be helpful but usually the individual should be asked if others can be consulted or can assist • Maintain individual’s privacy and dignity as much as possible • Even when guardian exists, individual has right to respect and usually to interact with who he/she chooses.

20. Cognitive Disabilities: Documents & Forms • Individuals may need assistance with documents and forms or for the materials to be simplified.   • Forms should be simple and only ask for the information that is necessary.   • Large print should be used for ease of reading.

21. Cognitive Disabilities: Possible Accommodations • simpler language • speaking slowly • pictures and visual tools • allowing a trusted individual to assist • taking breaks • repeating information. • ensuring directions are understood by asking for them to be repeated back.  

22. Cognitive Disabilities: Common Impairments • Intellectual Disabilities • Traumatic Brain Injury • Developmental Disabilities (not all cognitive) • Alzheimer’s Disease and Dementia • Autism Spectrum Disorder • Learning Disabilities

23. Georgia Resources/Organizations • Georgia Crisis & Access Line -- 1-800-715-4225.   • Georgia Department of Behavioral Health and Developmental Disabilities (DBHDD) • Georgia Advocacy Office.  The Georgia Advocacy Office is the state’s designated and federally mandated Protection and Advocacy Organization for people with disabilities. • Crisis Intervention Teams (CITs) and Training:  Georgia law enforcement officers can participate in a 40 hour CIT training to effectively assist individuals with mental illness and other brain disorders who are in crisis. Trainings in CIT are held throughout the year.  For more information, contact Pat Strode by telephone (770 234-0855) or via email at cit@namiga.org . • National Association of Mental Illness Georgia (NAMI Georgia) • Mental Health America of Georgia (MHA of Georgia) • Georgia Council on Developmental Disabilities (GCDD)

24. Resources for Court Accessibility & Technical Guidance • Administrative Office of the Courts:  The Administrative Office of the Courts provides expertise to Georgia trial and appellate courts on policy, legislation, court innovation, and court administration.   • State of Georgia ADA Coordinator’s Office:  The ADA Coordinator’s office provides technical resources to state agencies on compliance with Title of II of the Americans with Disabilities Act, conducts trainings on the ADA for state agencies, and other services.

25. Contact Information Talley Wells Director, Disability Integration Project Atlanta Legal Aid Society, Inc. 246 Sycamore Street, Suite 120 Decatur, GA 30030 770-817-7527 ctwells@atlantalegalaid.org Special thank you to Bill Goren, MikeGalifianakis and Stacey Peace for furnishing foundational slides for this presentation. Thank you to Karlise Grier, Patricia Buonodono, Mike Galifianakis, Stacey Peace, and Jessica Farah who helped develop the draft Mental Illness and Cognitive Disabilities Companion Guide to Access to Justice for People with Disabilities:  A Guide for Georgia Courts.