Some Outpatient Commitment Thoughts

1. Some Outpatient Commitment Thoughts George M. Lipman, July 2014

2. Judicial Conference’s longstanding position: a more viable general civil commitment system should serve as a appropriate least restrictive alternative to the overrepresentation of mentally ill defendants in jails and prisons. • The February 24, 2014 Judicial Conference letter in opposition to SB 831 noted: • “The members of the Judicial Conference Committee on Mental Health, Alcoholism and Addictions have long noted the frequent inadequacies of the present general civil commitment system in slowing the re-arrest and re-detention of revolving door mentally ill individuals. Emergency Evaluations often result in only the briefest stabilization. Trial judges throughout Maryland recount a pattern of endorsing emergency evaluation orders repeatedly for seriously ill individuals only to see the same individuals on criminal dockets. The downsizing of state mental hospitals has resulted in the remaining state beds serving criminally committed defendants with near exclusivity. Indeed, there often is delay in obtaining treatment and evaluation state hospital beds for even court committed criminal defendants who may not statutorily remain in a jail. General hospitals now serve a large percentage of civilly committed patients- with very brief hospital stays as the norm. Indeed, continuity of treatment is difficult to achieve for supervised mentally ill criminal defendants, where there is significant involvement of the court, counsel, monitoring agents and clinicians. Obviously, implementation of meaningful treatment planning is very difficult in the civil commitment context. While Maryland has model community treatment programs, there remains significant unmet demand for psychiatric hospital beds, community mental health and substance treatment, wrap around services, case management , housing employment, education and other day activity for revolving door seriously mentally ill individuals.”

3. Key: durability of plan; continuity of services! • Overall durability of plan. • Mental health treatment. • Substance abuse treatment. • Housing. • Vocational/ Educational/ Employment. • Case management. • Other wrap- around services. • Details matter!! • But, today’s presentation is more focused on legal mechanism.

4. Compare Criminal Law: distinct past act and elements of the crime; alternative engrafted onto existing procedure. Pre trial: the possible criminal trial hangs over the defendant. After factual finding of guilt: a possible violation hangs over the defendant. • Postponement for nolle prosse if the defendant follows the requirements. • Stet with mental health condition. • Pretrial release agency supervision. • Incompetent to stand trial; not dangerous with conditions; CFAP (Community Forensic Aftercare Program) monitors the defendant. • On supervised probation. • Sentencing held sub curia while defendant satisfies requirements; pretrial release agency monitors. • NCR (not criminally responsible) on conditional release; CFAP monitors.

5. Petition • Exercise of the police power of the State of Maryland? • Filed in court by: DHMH? hospital? clinic? doctor? • State represented by Attorney General? ( An entity is represented in court by a lawyer.) • Sufficient particularity, notice , advisement. • How soon evaluation? hearing? • Notice of evaluation date and hearing date in petition? • Arraignment- like hearing? • How served: sheriff? police? other state agent? private process server? • What happens if respondent evades service? ( A default judgment makes little sense.) (Is body attachment in lieu of summons viable?)

6. Evaluation • Who: treating doctor vs. evaluating doctor? • Which entity is the doctor affiliated with? • Standards. • What happens if respondent does not appear for evaluation? body attachment? returnable to court? court not in session? inpatient evaluation, an option? • What happens if respondent does not sufficiently cooperate with evaluation?

7. Counsel • Sufficient deprivation of liberty for right to counsel to attach? • 5th amendment criminal incrimination possibilities? • Attaches at what stage? before hearing? before examination? • Who provides counsel for indigent respondents? • Amend Public Defender statute? • A court advisement of right to counsel? An arraignment like procedure? A postponement if respondent appears without counsel? • Waiver by inaction? • Does counsel have an obligation to advise client of weakness of enforcement mechanisms?

8. Hearing • How quick? Meaningfully prompt vs. time for service, counsel, evaluation, report, elements of plan to be developed etc. • Commitment standards. • Burden of persuasion: clear and convincing evidence? • Presence of evaluating doctor required at hearing? • Court should not be bound by the evaluating doctors opinion. Court must be independent fact finder. But long line of evidence law on court’s need to base findings on good scientific evidence and not disregard helpful opinion evidence. • Importance of plan and conditions details. • Enforceability of conditions. • Who monitors conditions? For the State of Maryland?

9. Modification • Skillful plan modification is the key to success in City Mental Health Court. (periodic hearings, status conferences; Can’t “set it and forget it”) • How is a modification of conditions accomplished here? • Conditions like change of address, change of treatment location? • Conditions like need for detox, residential drug treatment? • Plan enhancement? • Plan simplification? • Who moves for modification? • Who does a clinical evaluation?

10. Violation • Who moves for violation hearing? • Notice to respondent. • Body attachment in lieu of summons? • Substantial violation vs. other violations. • Evaluation? • Body attachment for failure to appear? • Graduated sanctions? • Modification of conditions? • Hospitalization? • Standard for hospitalization? • Other remedies.