Lay Testimony to Support an Insanity Defense Permitted Only When Accompanied by Expert Testimony; Testimony by Licensed Clinical Social Worker Excluded

White v. Common­ wealth, 616 S.E.2d 49 (Va. Ct. App. 2005)

The challenge faced by the defendant at trial was that the court-appointed evaluator had determined that, although the defendant experienced psychotic symptoms (including hearing voices that he believed to be from God) at the time of the offense, the defendant's cocaine use had initiated and exacerbated these symptoms and thus the defendant was not legally insane at the time of the crime. In response, the defendant sought to introduce the testimony of a licensed clinical social worker who worked at the jail where the defendant was held and who saw the defendant two weeks after the offense and ten times over the next six months. Because the symptoms continued during incarceration when the defendant had no access to illicit drugs, the social worker was prepared to testify that the psychotic symptoms were unrelated to drug use...

Found in DMHL Volume 25 Issue 1

Virginia Supreme Court Rejects Constitutional Challenges to Sexually Violent Predator Commitment Law

Shivaee v. Commonwealth, 613 S.E.2d 570 (Va. 2005)

The U.S. Supreme Court in Kansas v. Hendricks, 521 U.S. 346 (1997), and Kansas v. Crane, 534 U.S. 407 (2002), defused most federal constitutional challenges to the civil commitment of sexual offenders under the sexually violent predator (SVP) statutes enacted by many states in recent years.  State constitutions could, nevertheless, provide an alternative basis for challenging these enactments.

Found in DMHL Volume 25 Issue 1

Showing That a Father Poses a Serious Risk of Psychological or Emotional Harm to His Children Is a Sufficient Basis to Award Custody to Grandparents; Ruling Not Disturbed

In re Marriage of O'Donnell-Lamont, 91 P.3d 721 (Or. 2004), cert. denied, 125 S. Ct. 867 (2005)

Following a divorce, a bitter court battle over who should have custody of the children from the marriage often ensues.  The dispute may focus on who is the children's "psychological parent" (i.e., the parent to whom the children are most emotionally attached) or whether one of the parents pose a risk of psychological or emotional harm to the children...

Found in DMHL Volume 25 Issue 1

Random Drug Tests of State Employees Providing Mental Health Services to Prisoners and to Residents of State Hospitals Upheld; Ruling Not Disturbed

lnt'I Union v. Winters, 385 F.3d 1003 (6th Cir. 2004), cert. denied, 125 S. Ct. 1972 (2005)

The U.S. Supreme Court declined to review a decision by the Sixth Circuit that upheld a random drug testing program imposed by the State of Michigan on various state employees. Among the employees subject to testing are psychiatrists, psychologists, social workers, and nurses who provide health and mental health services to prisoners and residents at state hospitals for the mentally ill and developmentally disabled.  It has been established that random drug tests constitute a "search" and the Fourth Amendment generally protects individuals from searches without an "individualized suspicion'' justifying the search.  However, an exception to this requirement exists when a state can show a special need for the drug test...

Found in DMHL Volume 25 Issue 1

High Court of New York Affirms Dismissal of Complaint Focused on Sexual Relationship Occurring During Pastoral Counseling; Ruling Not Disturbed

Wende C. v. United Methodist Church, 827 N.E.2d 265 (N.Y. 2005), cert. denied, 126 S. Ct. 346 (2005)

A married couple obtained individual counseling services from their church pastor. In the course of this counseling, the wife and the pastor developed a sexual relationship that lasted several months.  After the husband discovered the affair, the couple filed a suit against the pastor and the church for sexual battery (for unwanted touching) and for clergy malpractice stemming from a breach of fiduciary duties.  Because the pastor was not licensed as a professional counselor, a complaint could not be filed with a licensing body.  The New York Court of Appeals ruled that the lawsuit could not be pursued...

Found in DMHL Volume 25 Issue 1

Guardian Ad Litems, Social Workers Given Immunity for Efforts to Protect Individuals Lacking Decision-Making Capacity; Ruling Not Disturbed

Dalenko v. Wake County, N.C., Dep't of Human Servs., 578 S.E.2d 599 (N.C. Ct. App. 2003), cert. denied, 124 S. Ct. 1411 (2004)

Every state has a mechanism that enables a state or local agency to intervene to protect vulnerable individuals when the care they are receiving is deemed inadequate.  This protection is typically afforded children, elder persons, and adults who lack decision-making capacity.  Among the interventions this agency may pursue are periodically monitoring the care being provided, obtaining a protective order, removing the person from the custody of the current care giver, or initiating guardianship proceedings.  When guardianship proceedings are initiated, a guardian ad litem will often be appointed to insure the person at risk is represented and has a spokesperson in the proceedings.  The current care provider may contest the actions taken, assert they are unwarranted and improper, and file a lawsuit for damages that resulted.  The Court of Appeals of North Carolina has established that it will be rare in North Carolina that such cases can be successfully  pursued...

Found in DMHL Volume 25 Issue 1

Social Workers Immune from Liability for Failure to Adequately Investigate and File Documents Concerning Reported Child Abuse; Ruling Not Disturbed

Forrester v. Bass, 397 F.3d 1047 (8th Cir. 2005), cert. denied, 126 S. Ct. 363 (2005)

Every state has a mechanism for the reporting and investigation of child abuse and neglect, with many states, including Virginia, establishing similar mechanisms for abuse and neglect involving "aged or incapacitated adults." The United States Supreme Court in DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189 (1989), held that although a state may violate the federal constitution when it fails to protect individuals who are placed in state custody or who are exposed to danger created by the state, the Constitution does not require a state to protect individuals from abuse committed by private actors. A series of lawsuits since then have attempted to find means by which DeShaney can be side-stepped to hold state officials responsible under the federal constitution for a failure to adequately investigate reports of child abuse in the community...

Found in DMHL Volume 25 Issue 1

Coverage Denied Under Homeowner's Insurance Policy Because Acts That Resulted from Mental Illness Considered "Intentional" Acts; Ruling Not Disturbed

Hastings Mut. Ins. Co. v. Rundell, No. 238549, 2003 WL 21508515 (Mich. Ct. App. July 1, 2003), cert. denied, 126 S. Ct. 372 (2005)

For no apparent reason, a married couple's son shot a woman outside a health care facility.  They and their son, who lived with them, were sued by the shooting victim.  They attempted to rely on their homeowners' insurance policy to cover damages that might be awarded to the shooting victim.  The insurance company responded that the policy did not apply because it specifically excluded intentional acts from coverage.  The family argued the policy did apply because their son suffered from schizophrenia at the time and their son's actions were not intentional...

Found in DMHL Volume 25 Issue 1

Sex Offender Registration/Therapy Can’t Be Condition Parole on TX Inmates Convicted of Non-Sexual Offense Without Finding They’re Threat to Society Because Lack of Sexual Control; Ruling Not Disturbed

Coleman v. Dretke, 395 F.3d 216 (5th Cir. 2004), cert. denied, 126 S. Ct. 427 (2005)

Texas sometimes requires sex offender registration and sex offender therapy as a condition of release on parole from incarceration.  While SVP commitment requires a hearing and is generally limited to offenders convicted of a specified sexual offense, these parole conditions could be imposed without a hearing and regardless of whether the inmate had been convicted of a sexual offense...

Found in DMHL Volume 25 Issue 1

Texas Supreme Court Upholds SVP Commitments and Concludes That Incompetent Individuals Can Be Committed; Ruling Not Disturbed

In re Commitment of Fisher, 164 S.W.3d 637 (Tex. 2005), cert. denied, 126 S. Ct. 428 (2005)

Like at least sixteen other states, Texas permits a court to commit individuals who suffer from behavioral abnormalities that make them likely to engage in a predatory act of sexual violence.   Unlike other states, persons adjudged to be a sexually violent predator (SVP) in Texas are committed to outpatient treatment and supervision. However, a violation of an associated imposed constraint is categorized as a third-degree felony and can result in jail or prison time...

Found in DMHL Volume 25 Issue 1

Florida Sex Offender Registration and Notification Scheme Upheld; Ruling Not Disturbed

Doe v. Moore, 410 F.3d 1337 (11th Cir. 2005), cert. denied, 126 S. Ct. 624 (2005)

The U.S. Supreme Court has rejected a series of challenges to the sex offender registration and notification statutes of various states. See Connecticut Dep't of Pub. Safety v. Doe, 538 U.S. 1 (2003); Smith v. Doe, 538 U.S. 84 (2003).  Among the issues not directly addressed by the Supreme Court are whether these laws violate these individuals' constitutional rights to substantive due process, equal protection, and travel.  The Eleventh Circuit of the U.S. Court of Appeals has rejected such claims in upholding Florida's sex offender registration and notification scheme...

Found in DMHL Volume 25 Issue 1

Competence to Stand Trial Determination Should Be Closely Reviewed; Stale Evaluations Insufficient Basis for Findings of Competence; Ruling Not Disturbed

Maxwell v. Roe, 113 Fed. Appx. 213 (9th Cir. 2004), cert. denied, 125 S. Ct. 2513 (2005)

The Ninth Circuit ordered a rehearing on a California trial judge's  ruling that a defendant was competent to stand trial (CST).  Although considerable deference is typically given to a trial judge's factual determinations, the Ninth Circuit held that CST determinations should be reviewed more closely because a defendant who is incompetent to stand trial is also incompetent to develop an adequate factual record on this issue or to assist his or her attorney in doing so.  The Ninth Circuit added that a trial judge has a continuing, affirmative responsibility to ensure that a defendant is not tried while incompetent and the judge should not conclude that a defendant is CST merely because the attorney representing the defendant did not pursue the matter...

Found in DMHL Volume 25 Issue 1

Federal Act Trumps State's Medical Marijuana Law

Gonzales v. Raich, 125 S. Ct. 2195 (2005)

The federal Comprehensive Drug Abuse Prevention and Control Act of 1970 classifies all controlled substances into one of five schedules, with Schedule I drugs considered to have the highest potential for abuse and to lack any accepted medical use.  Since the enactment of this law, marijuana has been classified as a Schedule I drug despite considerable efforts to change this classification.  As a Schedule I drug, the manufacture, distribution, or possession of marijuana is a federal criminal offense, with no exception provided for its medicinal use...

Found in DMHL Volume 25 Issue 1

Death Sentence Overturned Because Defendant's Lawyers Did Not Examine Case File from an Earlier Conviction That Would Have Indicated Defendant's Diminished Mental Capacity

Rompilla v. Beard, 125 S. Ct. 2456 (2005)

A defendant charged with murder and facing a possible death sentence has a right to present mitigating evidence that weighs against the death penalty.  This can include evidence of a mental illness or mental retardation that demonstrates  the defendant's diminished capacity and reduced criminal responsibility. The U.S. Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), established that a defendant has a Sixth Amendment right to "effective assistance" of counsel in discovering and presenting this evidence during the sentencing phase.  In Wiggins v. Smith, 539 U.S. 51O (2003), the Court indicated that this right required the defendant's attorney to diligently explore potentially mitigating mental health evidence...

Found in DMHL Volume 25 Issue 1

Police Cannot Be Sued Under the Federal Constitution for Failing to Enforce a Restraining Order

Town of Castle Rock, Colo. v. Gonzales, 125 S. Ct. 2796 (2005)

The U.S. Supreme Court, in a 7-2 opinion, ruled that the failure of the police to adequately enforce a restraining order does not constitute a constitutional violation and therefore individuals can not pursue a federal claim for harm resulting from this failure.   In this Colorado case, a woman involved in divorce proceedings had obtained a restraining order that commanded her husband to not molest or disturb her or theirchildren and to remain at least 100 yards from the family home.  The order directed police officers to "use every reasonable means to enforce this restraining order." ...

Found in DMHL Volume 25 Issue 1

Burden Placed on Parents to Show School District's Planned Services Will Not Provide the "Appropriate" Education to Which Children with Disabilities Are Entitled

Schaffer v. Weast, 126 S. Ct. 528 (2005)

A frequently litigated mental health question involves disputes over the nature of services owed children with disabilities by school systems under the federal Individuals with Disabilities Education Act (IDEA).  There are nearly seven million students in the country who receive special education services under the IDEA.  This law, which dates from 1970, requires school districts to provide a "free appropriate public education" and to work with parents to develop an individualized education program (IEP) for each student with a disability.  When parents and school officials cannot agree, an "impartial due process hearing," typically before an administrative law judge (ALJ), must be held...

Found in DMHL Volume 25 Issue 1

Mentally Incompetent Defendant Has No Due Process Right Against Being Tried, Committed and Treated as Sexually Violent Predator

Moore v. Superior Court of Los Angeles County, California, 237 P.3d 530 (2010)

Overturning the decision of the California Court of Appeals, the California Supreme Court in a split decision has ruled that a mentally incompetent defendant has no due process right to avoid being tried and committed as a sexually violent predator. The court held that due process does not require mental competence on the part of someone undergoing a commitment or recommitment trial, which is a civil proceeding under the California Sexually Violent Predators Act. The strong governmental interest in protecting the public through the proper confinement and treatment of SVP's would be substantially thwarted by recognizing an SVP's right to delay or avoid confinement and treatment for a sexually violent mental disorder because his problems render him incompetent to stand trial. Recognition of such a due process right could prevent an SVP determination from being made at all. Such a scenario could often recur and would undermine the purpose and operation of the Act. The court found that public safety could suffer as a result.

Found in DMHL Volume 30 Issue 1

Fourth Circuit holds Government Cannot Forcibly Medicate Incompetent Defendant Due to Special Circumstances.

United States v. White, 620 F.3d 401 (4th Cir. 2010)

In United States v. White, 620 F.3d 401 (4th Cir. 2010), the 4th Circuit Court of Appeals determined that the government’s usually strong interest in prosecuting someone charged with six felony offenses was too diminished in this case by “special circumstances” to make it constitutional to involuntarily medicate the defendant with antipsychotic drugs to restore her competency to stand trial. The defendant, charged with conspiracy, credit card fraud and identity theft, had already spent 41 months locked up and the estimate was that it would take another ten months before she would be competent to stand trial if treated with medication.

Prior to involuntarily medicating a defendant to restore his competency to stand trial, the United States Supreme Court held in Sell v. United States, 539 U.S. 166 (2003), that the government must establish that the treatment must 1) serve an important government interest, 2) be substantially likely to succeed without significant side effects, 3) be necessary in light of alternatives, and 4) be “medically appropriate.” Applying the Sell standard, the 4th Circuit found in United States v. Bush, 585 F.3d 806 (4th Cir. 2009) that the government must establish the Sell requirements by clear and convincing evidence. It also held that the government must establish not only that it has an important interest in involuntarily medicating the defendant, but also that this interest is not mitigated by special circumstances in a particular case.

Courts have generally found that a ten year maximum sentence constitutes a sufficiently serious crime to establish an important governmental interest. In this case, the defendant’s sentence if found guilty would likely range from 42-51 months; she had already been confined for 41 months; and the estimate was that it would take another ten months to render her competent. In addition, the crime charged was nonviolent; she was not a danger to herself or the public; her conviction met requirements for the federal ban on possession of firearms; and there was considerable ambiguity as to the side effects and effectiveness of antipsychotic medication because she suffered from a “rare form of delusional disorder.” Of note, Judge Barbara Milano Keenan added a concurring opinion stating that this case was not one of those exceptional cases contemplated by Sell and that a contrary ruling would come “perilously close to a forcible medication regime best described…as routine.” The Court therefore refused to authorize the government to forcibly medicate the defendant to restore her competency to stand trial.

Found in DMHL Volume 30 Issue 1

Sixth Circuit Refuses to Vacate Tennessee Consent Decree Involving Conditions in Arlington Development Center

United States v. Tennessee, 615 F.3d 646 (6th Cir. 2010)

The 6th Circuit Court of Appeals has refused to vacate a consent decree and court orders entered in the 1993 lawsuit concerning conditions at the Arlington Development Center. In the lawsuit originally brought by the Department of Justice under the Civil Rights of Institutionalized Persons Act, the trial court had found that the Tennessee Department of Mental Health and Developmental Disabilities had failed to provide individuals residing in ADC with medical care, and keep them free from abuse and neglect and undue bodily restraint. Tennessee sought to have the consent decree vacated on the grounds that there was a change in the law between the time the federal trial court approved the consent decree and entered orders enforcing its terms. Tennessee argued that “state control” changed the standard for determining when a resident is voluntarily confined as opposed to a person being placed involuntarily in a state-operated facility.

The Court stated that even though there was a split in the courts as to whether the state owes an affirmative constitutional duty of care and protection to voluntarily admitted residents as it owes to involuntarily committed individuals under Youngberg v. Romeo, the 6th Circuit had not ruled on the issue. It also noted that although individuals with intellectual disabilities are considered “voluntary” residents in Tennessee and are free to leave the facility at any time they wish, they are admitted with the consent of their parents or guardians and are at their mercy as to whether they will remain placed at the facility. The Court also recognized the comprehensive involvement of the state in every facet of a resident’s daily life, including provision of their food, transportation, shelter, medical care and protection, and that they generally remain in the state’s care for years. The Court therefore held that there had been no change in the law since entry of the consent decree and subsequent orders that would warrant vacation of the consent decree.

Found in DMHL Volume 30 Issue 1

Georgia Enters Precedent-Setting Settlement Agreement with Department of Justice

United States v. Georgia, N.D. Ga No. 1:10-cv-249-CAP
http://www.justice.gov/crt/about/spl/documents/georgia/US_v_Georgia_ADAsettle_10- 19-10.pdf

In order to settle the United States Department of Justice lawsuit brought against it under the Americans with Disabilities Act, the State of Georgia agreed on October 19, 2010 to substantially change its service delivery system for both persons with intellectual disabilities and mental illness by emphasizing community-based care over institutional settings. The Settlement Agreement is remarkable in its commitment to institute sweeping changes to the entire developmental disability and mental health service delivery system. Key portions of the agreement include:

For persons with developmental disabilities,

• stop all admissions to its facilities for persons with intellectual disabilities by July 1, 2011
• transition its residents with intellectual disabilities to community settings by July 1, 2015
• apply for 1150 home and community based waivers by July 1, 2015; 750 for those transitioning from state hospitals; 400 to help prevent institutionalization for those currently in the community
• provide family supports to 2350 families by July 1, 2015
• establish 6 mobile crisis teams by July 1, 2012
• establish 12 crisis respite homes by July 1, 2014 to provide respite services to persons with developmental disabilities and their families

For persons with mental illness,

• serve 9,000 people with serious mental illness in community settings by July 1, 2015. The target population consists of people currently served in state hospitals with frequent readmissions or seen in emergency rooms, including those who are chronically homeless or in and out of jail
• establish 22 PACT teams by July 1, 2013
• establish 8 community support teams by July 1, 2014 to provide services to people in their own home and ensure community resources for those who remain in their own home
• establish 14 intensive case management teams by July 1, 2015
• hire 10 full-time case managers that will coordinate treatment and support services and assist individuals with accessing community resources
• develop 45 case management service providers by July 1, 2015 to coordinate treatment and support services and help maintain services and supports already in place
• establish 6 crisis service centers by July 1, 2015 to provide walk-in psychiatric and counseling services that are clinically staffed 24 hours per day/7 days per week to serve individuals in crises
• add 3 crisis stabilization programs by July 1, 2014
• add 35 community based psychiatric hospital beds in non-state community hospitals
• establish a toll free telephone access system for people to obtain information about community resources
• establish mobile crisis teams in every county by July 1, 2015
• establish 18 crisis apartments by July 1, 2015 as an alternative to crisis stabilization programs and psychiatric hospitalization
• provide supportive housing to 9000 people with serious and persistent mental illness by July 1, 2015
• provide housing supports to 2000 people ineligible for benefits by July 1, 2015
• provide bridge funding to 540 people by July 1, 2014 to support their transition to supported housing
• provide 550 people with supported employment by July 1, 2015
• provide peer support services to PACT and CST services by July 1, 2014 for an additional 835 people
• hire one case manager and one transition specialist per state hospital by July 1, 2010.

Georgia will also develop an annual network analysis to assess availability of community supports by July 1, 2012 and develop a quality management system by July 1, 2012 to perform annual quality service reviews of community services under the agreement. Georgia will also fund an independent reviewer to assess the state’s compliance with the Agreement.

Found in DMHL Volume 30 Issue 1