Involuntary Commitment; Constitutional Due Process

In re the Det. of M.W. & W.D. v. Dep’t Soc. & Health Serv., Washington, W. State Hosp., No. 90570-3, 2016 WL 3249495 (Wash. June 9, 2016) (en banc)

Washington Supreme Court upholds constitutionality of state statutory provisions authorizing commitment and re-commitment of individuals with mental illness on the grounds that they were charged with violent felonies and continued to present substantial likelihood of repeating similar acts, even after original charges dismissed on the grounds that the individuals were unrestorably incompetent to stand trial.

Background: The respondents' cases were unrelated but they were consolidated because they both challenged the constitutionality of involuntary recommitment. M.W. and W.D. were both charged with violent felonies and had their charges dismissed without prejudice after a judge determined that they were incompetent to stand trial and their competency could not be restored. In each case, the court ordered mental health evaluations to determine if they should be involuntarily committed, and each man was committed for 180 days of involuntary treatment. Prior to the expiration of the men’s commitments, the State utilized a new procedure for recommitting a person based on a judge’s finding that the person committed a violent felony. The new procedure allowed for recommitment in some circumstances based on a preliminary hearing, rather than a full evidentiary hearing, to determine whether “the person continues to suffer from a mental disorder or developmental disability that results in a substantial likelihood of committing acts similar to the charged criminal behavior.” The individual would then have the opportunity to rebut any findings through admissible expert testimony. The superior court commissioner declared the former statute unconstitutional and ordered the recommitment process to proceed without the unconstitutional provision. M.W. and W.D then received full evidentiary hearings assessing their eligibility for further involuntary treatment and were each recommitted to an additional 180-day period on other grounds.

Holding: On appeal, the Washington Supreme Court ruled that the procedure for involuntary commitment did not violate substantive or procedural due process, vagueness or equal protection. The court also ruled that the statute did not violate an individual’s right to a jury trial because the periods of commitment are short and the state has a high burden of proof for recommitment. The Washington Supreme Court reversed the judgment of the superior court and upheld the statute at issue as constitutional.

Found in DMHL Volume 35, Issue 2

Provider Liability; Claims by Third Parties

Kuligoski v. Brattleboro Retreat, 2016 VT 54 (Vt. 2016) 

Vermont Supreme Court rules that individuals who are known to residential and outpatient mental health providers as the caretakers of a patient have a right to be informed by those providers of the patient’s mental health status, his danger to the caretakers or others, and how to perform their caretaker role in light of these warnings; thus, a claim that the failure of the providers to so inform resulted in injury to the caretakers or other third parties survives a motion to dismiss for failure to state a claim.

Background: In October 2010, E.R. was voluntarily admitted to the Psychiatric Department at Central Vermont Medical Center (CVMC) with a “psychotic disorder” after having threatened young children in his home. A few days later he was involuntarily committed with a diagnosis of schizophreniform disorder and was subsequently transferred to the Retreat, a nonprofit psychiatric hospital in Vermont. At the Retreat, there were reports indicating E.R. had auditory and visual hallucinations, menacing behavior, and homicidal and suicidal ideation. In November of 2010, E.R. was discharged from the Retreat with an aftercare treatment plan that was shared with his parents. In mid-December, E.R. told his mother that he had stopped taking his medication. His mother reported this to Northeast Kingdom Human Services (NKHS), part of his aftercare treatment plan, but was told that E.R. had to decide to take care of himself. Between mid-December 2010 and March 2011, E.R. did not meet with anyone from NKHS and no one from NKHS reached out to E.R. On February 26, 2011, E.R. assaulted Michael Kuligoski at an apartment building. Kuligoski sued both the Retreat and NKHS. The superior court granted defendants’ motion to dismiss concluding that the defendants owed no duty to plaintiffs under Peck v. Counseling Service of Addison County, Inc., 146 Vt. 61 (1985).

Holding: On appeal, the Supreme Court of Vermont held that the failure-to-warn claims against defendants were improperly dismissed, but that the failure-to-treat and negligentundertaking claims were properly dismissed. The court found that the defendants had a duty to provide information to parents, as patient's caretakers, to warn them of patient's risk of violence to themselves and others and to advise them on how to manage patient's conduct. However, the court concluded that neither defendant had a duty, as a matter of public protection, to refrain from releasing E.R.

Notable Points:

Peck and other precedents bar duty-to-treat and negligent-undertaking claims: The general rule is that there is no duty to control the conduct of another in order to protect a third person from harm. Previous Vermont cases held in favor of rehabilitation in a non-institutional setting, which precluded the plaintiffs’ duty-totreat and therefore duty not to release argument. Further, a negligent-undertaking claim requires plaintiffs to show that defendants’ failure to exercise reasonable care increased the risk of the harm that occurred. In this case, plaintiffs did not allege and could not show that defendants’ care increased the risk to third persons.

Peck extends to identifiable and foreseeable victims, and plaintiffs' duty-to-warn claims should not be dismissed at this stage in the litigation: The Court noted that Peck and Tarasoff established the clear duty of the mental health professional or institution to warn identifiable third parties of threats of harm made by patients, but that many courts have been reluctant to extend that duty beyond identifiable third parties. This reluctance, the Court wrote, was based on those courts’ recognition of the interests of the mental health profession in honoring the confidentiality of the patient-therapist relationship and in respecting the humanitarian and due process concerns that limit the involuntary hospitalization of the mentally ill. However, the Court went on, several courts have extended the duty to foreseeable victims or to those whose membership in a particular class—such as living with the patient— places them within a zone of danger. Here, the Court found that Peck is not limited to circumstances in which there is an identifiable victim. Rather, the defendants did have a duty to warn E.R.’s caretakers based on their assumption of custody and caretaking responsibilities of E.R.

Chief Justice Reiber’s dissent: The Chief Justice filed a strong dissent to defining a “new common-law duty” for mental health care providers: to train or assist caretakers in order to protect the public. Justice Skoglund also filed a dissent on the same grounds.

Found in DMHL Volume 35, Issue 2

Sex Offenders; Conditions of Probation

Vermont v. Cornell, 2016 VT 47 (Vt. 2016)

Vermont Supreme Court rules that certain probation conditions placed by the trial court on a convicted sex offender improperly infringe on the offender’s liberty, privacy and autonomy rights.

Background: Owen Cornell was convicted of lewd and lascivious behavior with a 12- year-old boy in 2013. His prison sentence was suspended and multiple probation conditions were imposed. Cornell appealed the conditions, arguing that the “boilerplate” restrictions were invalid for a number of reasons (e.g., not sufficiently individualized, in violation of due process rights, impermissible delegation of authority to his probation officer). On remand, the trial court took consideration of additional information submitted by Cornell and testimony from his probation officer, then issued 21 new probation conditions. Cornell objected to six of the conditions, arguing that four of them had already been deemed unlawful in previous cases and two of them infringed on his liberty, privacy and autonomy rights under the U.S. and Vermont Constitutions.

Holding: The Vermont Supreme Court affirmed two conditions (prohibition on violent or threatening behavior; prohibition from places where children are known to congregate) and remanded as to four conditions. The Court found the delegation of authority to the probation officer to dictate treatment requirements to be overbroad. The Court found the condition of requiring probation officer approval for living and working location to be insufficiently specific to Cornell. The Court also agreed with Cornell that the condition requiring him to give search and seizure privileges to his probation officer was unconstitutional because it did not require reasonable suspicion for such searches. Finally, the Court found the condition imposing a blanket restriction on computer use to be overly restrictive, given that Cornell did not utilize any such technology in his offense. Concerning the computer restriction condition, the Court summarized, “We do not see a sufficient justification for such a sweeping restriction, which would render nearly all the activities of life incalculably difficult in the modern age, when such a condition would not have prevented the crime of which [a defendant] was convicted” (internal quotations removed, quoting U.S. v. Barsumyan, 517 F.3d 1154 (9th Cir. 2008)).

Notable Points:

Insufficiency of proof for “boilerplate” conditions: Prior to considering the specific challenges, the Court engaged in a brief excursus to note that the State’s “proof” concerning the appropriateness of probation conditions was insufficient, in that it merely rested upon the testimony of the probation officer that Cornell was a sex offender.

Balancing Fourth Amendment rights in sex offender cases: In the latter portion of the opinion the Court addressed the conditions that Cornell had argued infringed his liberty, privacy and autonomy rights. The Court discussed the balance of interests, including somewhat lessened rights of the probationer, but the overall need to narrowly tailor such conditions in order to avoid infringing liberty and privacy interests. The Vermont Supreme Court noted that some states (e.g., California, Indiana) have allowed suspicionless searches of probationers (and parolees), but that Vermont would continue to require reasonable suspicion for such searches.

Found in DMHL Volume 35, Issue 2

Juvenile Offenders; Knowing Waiver of Right Against Self-Incrimination

Ohio v. Barker, 2016 Ohio 2708 (Ohio 2016)

Ohio Supreme Court rules that Ohio law providing that recorded statements made by defendant in custodial setting are presumed to be voluntary violates juvenile’s right to due process and does not remove burden from the state to prove that waiver of right against self-incrimination was knowingly made. 

Background: In October 2011, Tyshawn Barker was questioned by police while in custody concerning the shooting deaths of two individuals. The detectives recorded the interrogation, read Barker the Miranda warnings, and asked him to sign a “Notification of Rights” form, explaining “…I am going to ask you to sign it. You’re not admitting to anything. I am just telling you it just says that I read you this [the warnings], okay?” The form included a preprinted statement, “I understand my rights,” but did not indicate that by signing the form it would waive rights. Barker was evaluated as part of the juvenile court’s determination about transfer, and he was found to have a low IQ, below-gradelevel academic abilities, and to have an individualized education plan. Barker was transferred to adult court, where he moved to have his statements suppressed, arguing that he had not knowingly, intelligently and voluntarily waived his Miranda rights. The trial court dismissed his motion, not making a finding on his waiver, but finding that he had voluntarily made statements. Ohio law (R.C. 2933.81(B)) stated that recorded interrogations were presumed voluntary. Barker was convicted and he appealed. The First District Court of Appeals affirmed his convictions, finding support in the record for the trial court’s decision about his rights waiver despite the absence of an express finding on the point. Barker appealed.

Holding: The Supreme Court of Ohio reversed and remanded. The Court distinguished two issues: the rights waiver issue, which was rooted in the Fifth Amendment right against self-incrimination, and voluntary statements issue, which was rooted in the Fourteenth Amendment due process right. Addressing the rights waiver, the Court found that R.C. 2933.81(B) did not apply to waiver of Fifth Amendment rights, and noted that state and federal case law make clear that rights waivers cannot be presumed and state legislatures cannot supersede federal constitutional law. Ultimately, the Court held that the state retains the burden of proving that Barker waived his rights. As to the second issue, the Court noted that juveniles require greater protections than adults. The Court noted that voluntariness of statements is assessed via the totality of circumstances test, and that R.C. 2933.81(B) effectively blocked consideration of the totality of circumstances, at least in juvenile cases, by its presumption of voluntariness. Ultimately, it held the law to be unconstitutional as applied to juveniles.

Found in DMHL Volume 35, Issue 2

Provider Liability; Claims by Third Parties

Holloway v. State, 875 N.W.2d 435 (Neb. 2016)

Nebraska Supreme Court rules that state mental health service providers not liable for injuries to victim of a shooting by a mentally ill person released from prison upon completion of his sentence. [Editor’s Note: An 8 th Circuit case related to the same incident, Glasgow v. State, is covered in this issue of DMHL.]

Background: On July 20, 2013, Nikko Jenkins was released from prison after serving 10.5 years of his 21-year sentence. While in prison, Jenkins engaged in numerous violent activities and repeatedly exhibited signs of a serious mental health problem. On August 24, Jenkins shot Shamecka Holloway as she walked in her front yard in Omaha, Nebraska. As a result of the shooting, Holloway suffered permanent damage and incurred medical bills; she sued the State, the state department of corrections, and the company that provided mental health services for the department and several of its providers. In her complaint, Holloway stated that the State’s responsibilities with respect to the inmates included assessing and evaluating inmates in order to determine the need for mental health commitment, and providing adequate advance notice to members of the public regarding the release of a prisoner who threatened serious bodily harm to others. The complaint further alleged that Jenkins had told Baker and staff evaluators that he would hurt others upon his release. Thus, Holloway claimed that the State knew or should have known of the foreseeability of harm to her once Jenkins was released, and mental health care providers owed a duty to the citizens of Nebraska to correctly evaluate and treat all inmates. The district court dismissed all claims brought by Holloway. Holloway appealed.

Holding: On appeal, the Supreme Court of Nebraska held that the district court did not err in dismissing Holloway’s complaint. The court found that the State and its employees were entitled to immunity from suit because whether to seek commitment falls under the “discretionary function” exception to the State Tort Claims Act. Further, the Supreme Court of Nebraska affirmed the district court’s ruling that Holloway failed to plead sufficient facts to show that the mental health care provider was liable.

Notable Points:

A state actor’s performance or nonperformance of a discretionary function cannot be the basis of liability: The State Tort Claims Act (“Act”) contains a discretionary function exception to the waiver of sovereign immunity for certain claims. A two-step analysis is used to determine whether the discretionary function exception applies. The court must first consider whether the action is a matter of choice for the acting employee. Under the applicable statute of the Nebraska Mental Health Commitment Act, whether to communicate a belief that another person is believed to be mentally ill and dangerous is a matter of choice. Thus, the first step of the analysis was satisfied. The second step requires that when a statute involves an element of judgment, the judgment must be of the particular kind that the discretionary function exception was designed to protect. The court concluded that the decision as to whether to report to the county that another person is thought to be mentally ill is a policy decision that the legislature intended to shield from liability.

Mental health treatment providers are only liable for failing to warn of a patient's threatened behavior under certain exceptional circumstances: A psychologist or mental health practitioner is not liable for failing to warn of a patient’s threatened violent behavior unless the patient has threatened violence toward a reasonably identifiable victim. Here, Jenkins did not specify a particular person but rather threatened the “citizens of Nebraska.” Another source of liability could be founded on a custodial relationship, but the court concluded a custodial relationship did not exist because CCS was only contracted to provide medical services for inmates, not to exercise any kind of custody over inmates.

Found in DMHL Volume 35, Issue 2

Firearms Possession by Persons with Mental Illness; Negligent Entrustment

Delana v. CED Sales, Inc., No. SC95013, 486 S.W.3d 316 (Mo. 2016) (en banc)

Missouri Supreme Court rules that a claim of negligent entrustment can be brought against a seller who sold a firearm to an individual after the seller had been specifically informed that the purchaser was mentally ill and had attempted suicide recently and was likely to do harm to self or others if given possession of a firearm, where the purchaser did subsequently use the firearm to kill another person.

Background: On June 25, 2012, Colby Weathers’ mother called the store manager of Odessa Gun & Pawn and asked him to refrain from selling a gun to her daughter who was severely mentally ill, informing him that Ms. Weathers had purchased a gun at the pawnshop the previous month and attempted to commit suicide. Two days later, the store manager sold a gun to Weathers and within two hours, Weathers had shot and killed her father. The State charged Weathers with murder but accepted her plea of not guilty by reason of mental disease or defect and ordered her committed to the Missouri Department of Mental Health. Weathers’ mother filed a wrongful death action alleging that the pawnshop was liable under theories of negligence.

The circuit court entered summary judgment in favor of Respondents, finding that Weathers’ mother’s negligence claims were preempted by the Protection of Lawful Commerce in Arms Act (PLCAA), which protects the sellers of firearms against negligence claims. The court also determined that although the PLCAA provides an exception to this protection in cases of negligent entrustment, Missouri law does not recognize a cause of action for negligent entrustment against sellers.

Holding: On appeal, the Supreme Court of Missouri held that the district court erred in determining that Weathers’ mother was precluded from proceeding with her negligent entrustment claim. The court found that, because Congress had expressly and unambiguously exercised its constitutionally delegated authority to preempt state law negligence actions against sellers of firearms, the PLCAA clearly preempted state law on point; thus, the PLCAA’s exception for negligent entrustment actions applied. What is more, the Court found that Missouri law does recognize a cause of action for negligent entrustment. The court concluded that negligent entrustment occurs when the defendant "supplies" a chattel (i.e., item of personal property) to another with actual or constructive knowledge that, "because of youth, inexperience or otherwise," the recipient will likely use the chattel in a manner that will result in an unreasonable risk of physical harm. Because Weathers’ mother presented sufficient evidence, the circuit court erred in entering summary judgment in favor of the pawnshop.

Found in DMHL Volume 35, Issue 2

Provider Liability

Binkley v. Allina Health Sys., 877 N.W.2d 547 (Minn. 2016)

In a case involving a minor with history of suicidal behavior, hospital’s affirmative defense of statutory immunity applied to the decision to deny admission to an inpatient mental health unit, but not to decisions regarding what care to provide the patient after leaving the hospital. 

Background: Binkley sued Allina Health System (“Allina”) for negligence in failing to properly examine, evaluate, and provide services to her son, Lloyd, who committed suicide after being denied admission into an inpatient mental health unit. In 2009, Lloyd began to experience suicidal thoughts and ideation, which resulted in his participation in the “United Partial Program” (“partial program”), an outpatient mental health treatment program. About nine months after completing the program, Lloyd again experienced suicidal ideation and self-harm behavior. He told his mother that he wanted to go to United in order to get help and stop his pattern of self-harm. Binkley and Lloyd went to the United Health emergency room and repeatedly requested that Lloyd, who consented, be admitted to United's inpatient mental health unit. Lloyd was examined by United staff, but was informed that he would not be admitted to the inpatient unit and, further, he was not “a good candidate” for the outpatient program because of a previous failure to follow through with that program. Lloyd returned home with his mother and committed suicide less than 24 hours later. Respondents asserted an affirmative defense of statutory immunity and, in the alternative, claimed that Binkley's expert affidavit failed to satisfy the statutory requirements under Minnesota law. The district court denied the motion for summary judgment.

Holding: On appeal, the Minnesota Supreme Court held that Respondents' good-faith decision to deny Lloyd admission to the inpatient mental health unit was entitled to immunity. However, the court also held that decisions regarding what care to provide to Lloyd after he left the hospital were not entitled to immunity.

Notable Points:

The immunity provision of the Minnesota Commitment and Treatment Act (“CTA”) applies to both voluntary and involuntary commitments: The CTA creates a state policy in favor of voluntary treatment. The voluntary treatment section of the CTA, which applied to Lloyd's circumstances, prohibits the arbitrary denial of admission and requires that treatment facilities use “clinical admission criteria consistent with the current applicable inpatient admission standards established by the American Psychiatric Association or the American Academy of Child and Adolescent Psychiatry” when “making decisions regarding admissions.”

Found in DMHL Volume 35, Issue 2

Intellectual Disability and Death Penalty

White v. Commonwealth, No. 2013-SC-000791-MR, 2016 WL 2604759 (Ky. May 5, 2016)

Kentucky Supreme Court overturns trial court ruling that defendant waived claim that he was not subject to the death penalty due to intellectual disability after defendant had refused to accept evaluation by a state psychiatric center to determine intellectual disability and insisted on state payment for evaluation by a private psychologist.

Background: In 1980, White was convicted by a Powell Circuit Court jury of three counts of capital murder, three counts of first-degree robbery, and one count of burglary. He was sentenced to death for each of the three murders. Less than a month after he was sentenced, White was subjected to a psychological evaluation, which determined that he had an overall IQ score of 81. In 2004, White filed a motion in the Powell Circuit Court, based on Atkins v. Virginia, to set aside his death sentences on the grounds that he was intellectually disabled. White argued that the Kentucky Correctional Psychiatric Center (KCPC) was incapable of conducting the necessary evaluations to determine his competence for the death penalty, and that the state should instead pay for an independent evaluation by an intellectual disability expert selected by White. Over the next several years, several orders for evaluation by the trial court and subsequent writs of prohibition by both White and the Commonwealth were entered. The trial court ultimately rejected White’s demand for an independent evaluation and ordered an evaluation by the KCPC. White refused to cooperate with the evaluation by the KCPC, which the trial court ruled was a waiver of his intellectual disability claim.

Holding: On appeal, the Kentucky Supreme Court affirmed in part and reversed in part, holding that White is not entitled to public funds for an expert of his choosing. The court reversed the trial court’s judgment that White waived his right to an intellectual disability claim by refusing an evaluation by the KCPC.

Notable Points:

An evaluation by the KCPC does not violate a defendant’s Fifth Amendment right to remain silent during post-conviction proceedings: The court ruled that White’s Fifth Amendment rights would be minimally affected, if at all, by an evaluation by the KCPC. White was already tried and convicted of three murders; therefore, any inquiry by the mental health professionals into these crimes would not implicate the right.

Kentucky law barring executions of only those individuals with an IQ score of 70 or less was invalidated by the U.S. Supreme Court Decision in Hall v. Florida, 134 S. Ct. 1986 (2014): The Kentucky Supreme Court noted that the Hall decision “effectively invalidated our arbitrary intelligence score standard for evaluating” intellectual disability.

Found in DMHL Volume 35, Issue 2

Juvenile Offenders; Life Sentence without Parole

State v. Sweet, 879 N.W.2d 811 (Iowa 2016)

Iowa Supreme Court reverses and remands sentencing of a juvenile offender to life without parole in a doublemurder case, on the grounds that such a sentence violates the Iowa Constitution. (Vigorous dissent notes that the Court’s “categorical bar” of life without parole for juveniles goes beyond the U.S. Supreme Court’s decision in Miller v. Alabama.)

Background: Isaiah Sweet was 17 years old when he shot and killed his grandparents, who had raised him since the age of 4. He pled not guilty to two counts of first-degree murder, but after the State concluded its case, he pled guilty as part of a plea agreement with the State. The court entered an order for a presentence investigation report, per recent Iowa precedent concerning the sentencing of juveniles convicted of murder. After review of the report and expert testimony from a clinical psychologist, which detailed hardships in his life and the inherent difficulties of assessing risk in adolescents, Sweet was sentenced to life without the possibility of parole. Sweet appealed the sentence.

Holding: On appeal, The Iowa Supreme Court ruled that a sentence of life without the possibility of parole (LWOP) for a juvenile offender violates article I, section 17 of the Iowa Constitution. The Court noted that Sweet did not expressly cite the federal Eighth Amendment, so it proceeded with its analysis under the Iowa Constitution. The Court reviewed the history of federal Eighth Amendment case law up through the recent cases concerning juveniles (e.g., Miller v. Alabama), then reviewed Iowa case law. It noted that Iowa has extended the reasoning of recent federal cases to provide even greater protection to juveniles (e.g., requiring individualized hearings in cases involving long prison sentences short of life in prison without the possibility of parole). The Court ultimately held that a categorical bar on life without parole sentences was required under the Iowa Constitution.

Notable Points:

Categorical bar to LWOP replaces case-by-case analysis: The Iowa Supreme Court first assessed whether a consensus existed in favor of a categorical approach. The Court noted that nine states have abolished LWOP sentences for juveniles, and that another 13 have functionally barred the practice. It also noted, however, that several state supreme courts have concluded that a categorical bar is not necessary. Concluding that a consensus was not present, the Court then exercised its “independent judgment to determine whether to follow a categorical approach,” ultimately concluding “that sentencing courts should not be required to make speculative up-front decisions on juvenile offenders’ prospects for rehabilitation because they lack adequate predictive information supporting such a decision.” Instead, “[t]he parole board will be better able to discern whether the offender is irreparably corrupt after time has passed, after opportunities for maturation and rehabilitation have been provided, and after a record of success or failure in the rehabilitative process is available.”

Found in DMHL Volume 35, Issue 2

Provider Liability; Claims by Third Parties

Mitchell v. State, 369 P.3d 299 (Idaho 2016)

Idaho Supreme Court rules that the victim of a shooting by a person with mental illness who had been discharged from treatment services by the state’s mental health services program may pursue a claim against the state that his injury was the result of a negligent termination of services.

Background: Gerald Simpson had been receiving mental health services from the Idaho Department of Health and Welfare’s (IDHW) Adult Mental Health program until he was released on June 23, 2010. On September 27, 2010, Simpson shot Ryan Mitchell in the back outside of a coffee shop. Approximately ten days after the shooting, psychologist Daniel Traughber, Ph.D., prepared a memorandum on behalf of the IDHW explaining the processes and procedures that were used to terminate mental health services, subsequent to budget cuts, in a way that “reduced the risk of harm to patients and/or the community.” In August 2012, the district court dismissed the criminal charges against Simpson due to Simpson’s lack of competency to stand trial. Shortly thereafter, Mitchell filed this suit alleging that the State violated Mitchell’s constitutional and victims’ rights and was negligent when it discontinued Simpson’s mental health services. The district court issued an order granting summary judgment to the State on all claims.

Holding: On appeal, the Supreme Court of Idaho held that Mitchell’s victims’ rights claim was properly dismissed, but that the claim for negligence had been dismissed in error. The court determined that there was insufficient admissible evidence for the district court to make a determination as to whether the decision to cut Simpson from IDHW's mental health services was operational or discretionary. Thus, the district court erred in holding that the State’s decision to close Simpson’s file was discretionary and therefore erred in granting summary judgment to the State on Mitchell’s negligence claim.

Notable Points:

Mitchell’s negligence claim turns on whether IDHW's decision to release Simpson from its Adult Mental Health program was a discretionary function or an operational function: If the State’s decision to discontinue Simpson’s mental health services was a discretionary function then it would entitle the State to immunity. Here, there were insufficient facts for the trial court to determine whether IDHW's decision to cut Simpson from its health services was operational or discretionary. The evidence did not indicate who made the decision to close Simpson's file or how that decision was made.

Found in DMHL Volume 35, Issue 2

Employment Discrimination in Mental Health Facilities

Blackburn v. Dep't of Soc. & Health Servs., 375 P.3d 1076 (Wash. 2016)

Washington Supreme Court rules that psychiatric hospital cannot modify staff assignments to accommodate racial prejudices of patient, even when patient threatens violence if staff members of a particular race are assigned to him.

Background: Plaintiffs were employees of a psychiatric hospital and challenged alleged discriminatory staffing practices. Employees were generally assigned a particular home ward, but could be reassigned based on a “pull list.” The pull list was meant to ensure that employees were reassigned to other wards on an equal basis. M.P., a particularly violent patient, threatened an African-American staff member, which resulted in a decision not to assign any African-American staff to that patient’s ward to ensure staff safety. The following day, a nurse directed that a white staff person be assigned to M.P.’s ward, which would have been a deviation from the pull list assignment system. The plaintiff employees sued claiming employment discrimination and disparate treatment. The trial court dismissed the claims, concluding the adverse employment action was not severe enough to be actionable and the overriding factor was safety. The plaintiffs appealed.

Holding: The Washington Supreme Court ruled that there were no valid legal justifications for the race-based determinations in the staffing directive. The court reversed the decision of the trial court on this claim and remanded for a determination of damages.

Notable Point:

Bona fide occupational qualification (BFOQ): The court found it doubtful that a BFOQ defense could apply in this case, but ruled that it had been waived by the defense at trial.

Found in DMHL Volume 35, Issue 3

Judicial Order Authorizing Involuntary Administration of Medication in Hospital Setting

In re I.G., 2016 VT 95

Vermont Supreme Court reverses lower court order authorizing medication over objection of involuntarily committed patient because the lower court failed to make specific findings on whether patient’s written statement of objection to medication, made prior to hospitalization, was a competent refusal that had to be honored under Vermont law.

Background: I.G. was hospitalized at the Vermont Psychiatric Care Hospital (VPCH) pursuant to a court order stemming from an arrest for assaulting his girlfriend. I.G. was previously hospitalized at VPCH and was diagnosed with schizophrenia. When he was discharged from VPCH after the previous hospitalization, he started living at a residence for people with mental illness. While there, I.G. signed a document purported to be an advance directive stating that he did not want any psychiatric medication. Following I.G.’s current hospitalization, VCPH filed an application to involuntarily medicate I.G. After a hearing, the trial court ordered I.G.’s involuntary medication for 90 days. I.G. appealed. 

Holding: The Vermont Supreme Court ruled that the trial court did not adequately address the issue of whether the purported advance directive was a competent written expression or preference regarding medication according to Vermont statute. The court reversed and remanded for a determination of I.G.’s competency at the time of signing the advance directive.

Notable Point:

Advance directive: The Vermont Supreme Court reversed the decision of the trial court even though the advance directive at issue in this case did not meet the statutory requirements of an advance directive because it was not signed by two witnesses.

Found in DMHL Volume 35, Issue 3

Provider Liability and Duty to Warn Third Parties in the “Zone of Danger” of Potential Harm by Patient

Kuligoski v. Brattleboro Retreat, No. 14-396, 2016 Vt. LEXIS 106 (Sep. 16, 2016)

Vermont Supreme Court replaces its May 6, 2016 opinion with an amended opinion, which still finds the existence of a duty of mental health care providers to warn a patient’s caregivers of dangers posed by a patient if those caregivers are actively involved in the patient’s treatment plan and are within the “zone of danger” posed by the patient’s violent propensities.

Background: E.R. was involuntarily committed to state mental health facilities and was diagnosed with a schizophreniform disorder before being transferred to Battleboro Retreat. After being discharged from the retreat to the home of his parents, who were his ongoing caregivers, and while undergoing outpatient treatment with Northeast Kingdom Human Services (NKHS), E.R. assaulted his father, Michael Kuligoski. Plaintiffs filed suit against Battleboro Retreat and NKHS for failure to warn of E.R.'s danger to others, failure to train E.R.'s parents in handling E.R., failure to treat, improper release, and negligent undertaking. The superior court granted the defendants’ motions to dismiss for failure to state a claim and plaintiffs appealed.

Holding: The Vermont Supreme Court reversed the rulings of the superior court relating to the failure to warn and failure to train claims. However, the court explained that the duty to warn included elements of the failure to train claim and held that there was no independent cause of action for a failure to train. The court also held that a provider has no duty to convey information in violation of HIPAA.

Notable Points:

Duty to warn: The court explained that the duty to warn is narrow and “applies only when a caregiver is actively engaging with the patient's provider in connection with the patient's care or the patient's treatment plan (or in this case discharge plan), the provider substantially relies on that caregiver's ongoing participation, and the caregiver is himself or herself within the zone of danger of the patient's violent propensities.”

§ 43 of the Restatement Third of Tort Law: The court rejected the view that there is a duty to third parties based on the undertaking of another.

Found in DMHL Volume 35, Issue 3

Provider Liability and Duty of Care in Outpatient Mental Health Setting

Chirillo v. Granicz, 41 Fla. L. Weekly 345 (2016)

In medical malpractice suit against psychiatrist for suicide of patient, Supreme Court of Florida rules that while there is no provider duty to prevent suicide in the outpatient setting, there is still a duty of care owed to the patient and the case presented a genuine issue of material fact as to whether that duty was breached.

Background: Robert Granicz filed a medical malpractice case against his deceased wife’s primary care physician, Dr. Joseph Chirillo, alleging he breached his duty of care in treating her, which resulted in her suicide. The decedent had a history of depression and began seeing Dr. Chirillo, who changed her medication from Prozac to Effexor. Following that change the decendant called Dr. Chirillo’s office and told his medical assistant that she had stopped taking the Effexor because of side effects and that she had not felt right for the past few months. This information was given to Dr. Chirillo, who changed the decedent’s prescription to Lexapro. Dr. Chirillo’s office called the decedent and told her to pick up her new prescription, but did not request that she schedule an appointment with Dr. Chirillo. The decedent picked up her prescription later that same day, but Granicz found her body hanging in their garage the next day. Dr. Chirillo filed a motion for summary judgment claiming that he owed no duty to prevent a patient’s unforeseeable suicide while the patient was not in his control. The trial court granted the motion, but the Second District reversed on appeal.

Holding: The Supreme Court of Florida affirmed the decision of the Second District and held that the plaintiff showed a genuine issue of material fact regarding the proximate cause of his wife’s suicide. The court remanded the case for trial.

Notable Point:

First District Case: The Florida Supreme Court explicitly disapproved the analysis regarding duty used by the First District in Lawlor v. Orlando, 795 So. 2d 147 (Fla. Dist. Ct. App. 2001).

Found in DMHL Volume 35, Issue 3

Imposition of Probation Conditions Requiring Sex Offender Treatment

Villanueva v. State, 41 Fla. L. Weekly 319 (2016)

Florida Supreme Court rules that probation condition requirement that defendant attend sex offender therapy was invalid because it did not bear a “reasonable relation” to rehabilitation where defendant was charged with lewd and lascivious molestation but convicted of misdemeanor battery.

Background: Villanueva was charged with one count of lewd and lascivious molestation of a child older than 12 but less than 16 years old. The victim was Villanueva’s daughter, who testified that Villanueva touched her breast and buttocks on three separate occasions. The jury acquitted Villanueva of lewd and lascivious molestation, but found him guilty of a lesser included offense of misdemeanor battery. The trial judge sentenced Villanueva to 90 days in jail followed by one year of probation. A special condition of the probation was a requirement that Villanueva participate in sex offender therapy pursuant to a Florida statute. That statute set probation standards including sex offender treatment for certain enumerated offenses, which included the charge of lewd and lascivious molestation, but not misdemeanor battery. Villanueva appealed, raising the issue of whether sex offender therapy was restricted by statute to only the enumerated offenses and whether the imposition the condition in this case comports with probation standards announced by the Florida Supreme Court in Biller. The district court upheld the sex offender treatment imposed by the trial court.

Holding: The Florida Supreme Court ruled that sex offender treatment was not limited to certain enumerated offenses, overruling a lower court decision in Arias v. State, 65 So. 3d 104 (Fla. Dist. Ct. App. 2011). The court also ruled that the imposition of sex offender treatment in the present case was invalid under Biller, because the condition did not rationally relate to future criminality.

Notable Point:

Rational relation to future criminality: The court explained that Villanueva’s conviction of the lesser included offense of misdemeanor battery indicated that the touching was not committed in a lewd and lascivious manner; therefore, he should not be a candidate for sex offender treatment. The court also relied on the fact that Villanueva did not have any prior convictions.

Found in DMHL Volume 35, Issue 3

Intellectual Disability and Death Penalty

Hall v. State, 41 Fla. L. Weekly 372 (2016)

On remand from the U.S. Supreme Court decision in Hall v. Florida, Florida Supreme Court finds that Hall meets the clinical, statutory, and constitutional requirements to establish that Hall’s intellectual disability precludes his being executed for the murders he committed.

Background: Freddie Lee Hall was convicted of murder in 1978 and his conviction and sentence were upheld by the Florida Supreme Court in 1981. After numerous appeals, Hall’s case received cert to the U.S. Supreme Court on a claim that Florida’s requirement that an inmate show an IQ test score of 70 or below before presenting any additional evidence of intellectual disability violated the Eighth Amendment. The U.S. Supreme Court agreed and remanded the case for a determination of Hall’s intellectual disability. 

Holding: The Florida Supreme Court found that despite Hall’s IQ test scores above 70, he met the clinical definition of intellectually disabled based on evidence of organic brain damage, mental illness, and records indicating low intellectual ability. The court reversed the order of the circuit court denying post-conviction relief, vacated Hall’s death sentence, and imposed a life sentence.

Notable Point:

Age of onset for intellectual disability: The court reiterated that Florida statute requires only that intellectual disability be demonstrated to have manifested prior to age 18, not that it be diagnosed prior to age 18.

Found in DMHL Volume 35, Issue 3

Burden of Proof for Involuntary Commitment

In re Hospitalization of Mark V., 375 P.3d 51 (Alaska 2016)

Alaska Supreme Court rules that for involuntary commitment based upon the person’s inability to care for self in the community, the petitioner has the burden to prove that, even with the services and supports that are available in the community, the person is too disabled to care for self and that commitment is the least restrictive alternative.

Background: Anchorage police took Mark V. into custody and transported him to an emergency psychiatric facility after he was found nude in public claiming to be the King of England. The treatment facility petitioned the superior court for an ex parte order authorizing Mark’s hospitalization at Alaska Psychiatric Institute based on a determination that he was “gravely disabled” as a result of paranoid schizophrenia. The superior court granted the petition and ordered an evaluation period of 72 hours. During that initial evaluation period, Mark’s treating psychiatrist filed a petition seeking to extend Mark’s commitment for an additional 30 days. The superior court approved the 30-day commitment order based on testimony by Mark’s psychiatrist that Mark’s inappropriate behavior would continue if he were released before his manic symptoms improved.

Holding: The Alaska Supreme Court held that a 30-day commitment petition must allege less restrictive alternatives have been considered and petitioners must prove by clear and convincing evidence at a hearing that there are no less restrictive alternatives. The court found that this burden was met during the hearing and affirmed the decision of the superior court granting the 30-day commitment.

Notable Point:

No less restrictive alternative: The court explained that it is a constitutional prerequisite for involuntary commitment to prove that no less restrictive alternatives exist.

Found in DMHL Volume 35, Issue 3

Death Penalty and Intellectual Disability

Thompson v. State, 41 Fla. L. Weekly 510 (2016)

Florida Supreme Court reaffirms the rejection of a bright-line IQ cutoff of 70 in determining eligibility for the death penalty and holds it would be a manifest injustice not to give a defendant the benefit of the three-pronged test set forth in the Supreme Court’s decision in Hall.

Background: William Lee Thompson was convicted of first-degree murder and sentenced to death for a 1976 murder committed when Thompson was 24 years old. His sentence became final in 1993. Thompson filed numerous post-conviction motions claiming he is ineligible for the death penalty because of intellectual disability. Thompson’s IQ was measured by multiple experts with estimates ranging from 71–88. Thompson’s most recent post-Hall motion was denied by the circuit court because his IQ scores were generally over 80 and Hall only required courts to consider IQ scores 75 and below.

Holding: The Florida Supreme Court reversed the circuit court and remanded the case for a new evidentiary hearing regarding Thompson’s intellectual disability. In reaching its decision, the Florida Supreme Court rejected a bright-line IQ cutoff for intellectual disability and directed lower courts to apply all three prongs of the Hall test rather than relying on any one prong as dispositive.

Notable Point:

Retroactive Effect of Hall: In a short dissent two justices reject the idea that Hall should apply retroactively and would therefore have denied Thompson relief.

Found in DMHL Volume 35, Issue 4

Liability to Third Parties

Volk v. DeMeerleer, No. 91387-1, 2016 Wash. LEXIS 1374 (Dec. 22, 2016)

Supreme Court of Washington rules that victims of violence committed by a person in outpatient mental health treatment are allowed to pursue a claim against a therapist for “medical negligence,” even in the absence of any evidence that the patient made statements of any kind to the therapist that identified any intention to harm the plaintiffs, with the Court ruling that the “foreseeability” of the patient’s attack on the plaintiffs was a question of fact for the jury.

Background: In September 2001, Dr. Howard Ashby began treating Jan DeMeerleer, who had previously been diagnosed with bipolar and associated disorders. Ashby was aware of DeMeerleer’s treatment history including that he had been hospitalized in 1992 for suicidal ideation and sought outpatient treatment in 1997 for suicidal ideation, and that he was prescribed Depakote both times, but stopped taking the medication because of side effects. Ashby prescribed DeMeerleer Depakote and noted that it would be necessary to monitor compliance with the medication regimen. In 2003, DeMeerleer learned his wife was having an affair, and they divorced shortly thereafter. He suffered severe depression and again expressed suicidal and homicidal thoughts, but assured Ashby that he would not act on them. In 2005, DeMeerleer began a relationship with Schiering. The relationship progressed rapidly but fell apart when DeMeerleer struck one of Schiering’s sons in 2009. DeMeerleer also lost his job around this time. Ashby last met with DeMeerleer in April 2010, at which time he reported suicidal ideation but stated that he would not act on it.

DeMeerleer and Shiering attempted to mend their relationship, but Schiering ended it in July 2010. The next day DeMeerleer shot and killed Schiering and her son and attempted to kill her other son, who was able to escape. DeMeerleer then went home and took his own life. Schiering’s mother and surviving son filed medical malpractice and medical negligence claims against Ashby alleging a failure to follow the accepted standard of care in treating DeMeerleer. Ashby moved for summary judgment on the basis that the attack was not foreseeable and that Ashby did not owe the victims a duty of care. The trial court granted summary judgment in favor of Ashby, but the court of appeals reinstated the medical negligence claim.

Holding: The Washington Supreme Court reaffirmed the common law of Washington that the state does not recognize a cause of action for medical malpractice for third parties. Regarding the medical negligence claim, the court relied on its decision in Petersen v. State, 100 Wash. 2d 421, 671 P.2d 230 (1983) to find that a “special relationship” existed between Ashby and DeMeerleer such that Ashby owed a duty ofreasonable care to DeMeerleer’s foreseeable victims. The court explained that this duty extended to anyone who may foreseeably be endangered by a patient. The court recognized the difficulty of predicting behavior, but reasoned that requiring due care of mental health professionals counterbalanced that difficulty: as long as a mental health professional exercised due care (i.e., acted in line with standards of professional care) to reach an informed assessment of dangerousness, the professional would not be liable. The court found, however, that Ashby had not met such standards based on an affidavit from the plaintiff’s forensic psychiatrist, which, the Court noted, asserted that “Ashby's failure to schedule additional meetings, follow up with DeMeerleer, and monitor DeMeerleer's condition was a breach of professional standards and was a causal and substantial factor of the harms that befell Schiering and her sons.” The court held that whether Schiering and her sons were foreseeable victims was a material fact to be determined by a jury and, thus, summary judgment was inappropriate. The court remanded the case to consider the medical negligence claim.

Notable Point:

Dissent: A strongly worded dissent challenged the majority holding that mental health professionals can be held liable to third parties absent the ability to control the patient. The dissent argued that the holding significantly expands liability for mental health professionals and could chill the provision of mental health services.

Editor’s note: Virginia practitioners should be familiar with Virginia Code Section 54.1- 2400.1, entitled “Mental health service providers; duty to protect third parties; immunity,” which sets out in clear language the circumstances that trigger a mental health provider’s duty to take action to protect a third party from harm, and also describes the actions by the provider that “discharge” that duty. Compliance with this section gives immunity protection for providers from claims of various kinds.

Found in DMHL Volume 35, Issue 4

Involuntary Commitment of Sexually Violent Predators

In re Care & Treatment of Ellison, 384 P.3d 15 (Kan. 2016)

Supreme Court of Kansas holds that an ad hoc analysis of all of the factors resulting in a pretrial delay must be used to determine whether a defendant’s due process right to a speedy trial has been violated during proceedings for his involuntary civil commitment as a sexually violent predator.

Background: Todd Ellison was a convicted sex offender, and the state of Kansas sought to have him involuntarily committed under the Kansas Sexually Violent Predator Act (KSVPA). The KSVPA allows for the civil commitment of persons alleged to be sexually violent predators after the completion of their criminal sentences. A person suspected of meeting the statutory definition of a sexually violent predator is entitled to a probable cause hearing and a jury trial during which the state must prove its case beyond a reasonable doubt. The state filed a probable cause petition against Ellison in June 2009, but his trial was delayed more than 4 years due to multiple continuances. Ellison filed a motion claiming the delay violated his due process right to a speedy trial. The district court ruled that the delay violated Ellison’s due process rights and ordered his release. The court of appeals reversed and the state supreme court granted Ellison’s petition for review to determine the appropriate standard to measure due process claims for pretrial delays in KSVPA proceedings.

Holding: The Kansas Supreme Court ruled that the ad hoc analysis from Barker v. Wingo, 407 U.S. 514 (1972) in which courts must weigh various factors including the length of the delay, reason for the delay, defendant’s assertion of the right, and prejudice to the defendant applies to pretrial delays in KSVPA proceedings. The court held that the district court did not err in weighing the different factors that caused the delay in Ellison’s trial under the Barker analysis and affirmed the order for his release.

Notable Points:

Barker Factors: The court of appeals reversed the ruling of the district court on the assumption that too much weight was given to the 4-year delay and other factors were not properly considered. The Kansas Supreme Court emphasized that no one factor is either necessary or sufficient in determining whether a defendant’s due process rights have been violated and that the district court had properly considered other factors in reaching its decision.
Reason for Pretrial Delay: The district court inquired into which party was responsible for the continuances that led to the delay in Ellison’s trial. The court determined that some of the continuances were attributable to Ellison and others were by agreement. When the party responsible for any delay could not be determined, the court attributed it to the state. The court considered only the delay that was attributable to the state in reaching its decision in this case.

Found in DMHL Volume 35, Issue 4