Ohio Supreme Court Upholds Statute Permitting Grandparents to Seek Visitation Rights But Requires That Special Weight Be Given to Parents' Objections

Harrold v. Collier, 836 N.E.2d 1165 (Ohio 2005)

Historically, grandparents had no legal right to continue their relationship with their grandchildren when their own child (the grandchild's parent) died, divorced, or had his or her parental rights terminated.  This position was based on the view that custodial parents should generally be able to decide who can associate with their child.  During the 1980s and '90s, what are generally referred to as "grandparent visitation laws" were widely enacted to facilitate grandparents' ability to maintain contact with their grandchildren after a rift developed between the grandparents and a grandchild's custodial parent...

Found in DMHL Volume 25 Issue 1

NY’s High Court Rules Testimony by Prosecutor's Forensic Psychiatrist Recounting 3rd-Party Statements Where 3rd Parties Aren’t Available for Cross-Exam Violates Fed Constitution and Isn’t Admissible

People v. Goldstein, 2005 N.Y. Slip Op. 09654, 2005 WL 3477726 (N.Y. Dec. 20, 2005).

In recent years forensic evaluators have been encouraged to expand the information on which they rely beyond their examination of the defendant and the clinical record to include third-party data from sources such as family and acquaintances of the defendant.  A ruling by the high court of New York has placed limits in that state on testimony based on this practice and raised issues that may reverberate in other states...

Found in DMHL Volume 25 Issue 1

Officials at Designated Hospital That Refused to Admit Emergency Detainee Can Be Held in Contempt, but Permitted to Refuse Admission if Hospital Lacks Adequate Space or Staff

In re Contempt of Wabash Valley Hosp., Inc., 827 N.E.2d 50 (Ind. Ct. App. 2005)

In a case characterized as exemplifying "a national trend," the Indiana Court of Appeals held that a trial court has the authority to determine that hospital officials violated the law when they refused to admit a man deemed mentally ill and dangerous and judicially  committed for a seventy-two-hour emergency detention.   However, the appellate court vacated a contempt order and ordered a rehearing because the trial judge failed to give hospital officials an opportunity to explain their decision to deny admission...

Found in DMHL Volume 25 Issue 1

Medical Center Has a Duty to Protect Emergency Room Patients from Attacks but Not When the Attack Was a Surprise

Lane v. St. Joseph's Reg'I Med. Ctr., 817 N.E.2d 266 (Ind. Ct. App. 2004)

The Indiana Court of Appeals ruled that although a medical center has a duty to protect emergency room patients from criminal attacks, a hospital is not liable for the injuries that resulted when a teenage boy attacked a woman seated in the waiting area of its emergency room...

Found in DMHL Volume 25 Issue 1

Misrepresentations by Insurance Plan of Availability of Mental Health Benefits Can Not Serve as Basis for Consumer's Claim of Common-Law Fraud

Va. Acad. of Clinical Psychologists v. Group Hospitalization & Med. Servs., Inc., 878 A.2d 1226 (D.C. 2005)

Individuals contemplating enrollment in a behavioral managed care plan are typically provided a description of available mental health services.  When these services are not forthcoming following enrollment, they may file a legal claim against the administrators of the plans that asserts that the advertisements  and materials they were provided were misleading and thus fraudulent...

Found in DMHL Volume 25 Issue 1

Connecticut Supreme Court Mandates That Juries Generally Be Informed of Risks Inherent in Eyewitness Identification Procedures When Eyewitness Has Not Been Warned That Perpetrator May Not Be Present

State v. Ledbetter, 881 A.2d 290 (Conn. 2005)

A unanimous Connecticut Supreme Court has crafted a jury instruction that generally must be given in trials when an eyewitness identification is entered into evidence.  The court noted that psychological studies document that a witness is more likely to misidentify an innocent individual as the perpetrator of a crime during an identification procedure (e.g., during a photo array or lineup) where the witness is not warned that the perpetrator might not be present.  The court added the research also shows that warning the witness that the perpetrator might not be present does not significantly decrease the percentage of correct identifications...

Found in DMHL Volume 25 Issue 1

States Can Limit the Number of Individuals with a Developmental Disability Participating in a Community Placement Medicaid Waiver Program Without Violating the ADA

Arc of Wash. State Inc. v. Braddock, 403 F.3d 641 (9th Cir. 2005)

The federal Medicaid Act furnishes funds to the states to help them provide care to eligible low-income persons.  Although states are not required to participate, if they accept this federal funding, which all fifty states do, they must comply with federal requirements and regulations.  Washington, like many states under the Medicaid waiver program, provides a variety of non-institutional care options for qualified persons with a developmental disability who desire to live at home or independently.   Medicaid, and in turn the State of Washington, limits the availability of these services to a given number of individuals (9,977 when this lawsuit was commenced) to control the program's costs, which are jointly paid by the federal and state governments. Because all available slots are full and because openings generally occur only when a person who is currently receiving home or community-based services dies or becomes ineligible for services (which occurs relatively infrequently), extended delays may occur before a qualified individual is able to obtain these services...

Found in DMHL Volume 25 Issue 1

Sovereign Immunity Bars ADA Suit Against a State for Failing to Fund Community­ Based Services Through Medicaid

Bill M. v. Neb. Dep't of Health & Human Servs. Fin. & Support, 408 F.3d 1096 (8th Cir. 2005)

In many states there is a shortage of community placements and services for individuals with a developmental disability, even though these states created an entitlement to these community programs under their Medicaid program. Because the absence of community programs may necessitate that such individuals be institutionalized, various lawsuits asserting these individuals' legal rights are being violated have been brought against states and state officials....

Found in DMHL Volume 25 Issue 1

Administering the MMPI to Prospective Employees Violates the ADA

Karraker v. Rent-A­ Center, Inc., 411 F.3d 831 (7th Cir. 2005)

Concerned that individuals with disabilities often face barriers to joining the workforce based on unfounded stereotypes and prejudice, Congress in enacting the Americans With Disabilities Act of 1990 (ADA) limited the ability of employers to use "medical examinations" as a condition of employment. The ADA prohibits the use of pre-employment medical tests, the use of medical tests for existing employees that lack job-relatedness and business necessity, and the use of medical tests that screen out (or tend to screen out) people with disabilities.  An Illinois employer asked prospective employees 502 questions from the Minnesota Multiphasic Personality Inventory (MMPI) as part of a battery of tests.  The employer claimed that the MMPI simply measured potentially relevant personality traits and thus was not a prohibited medical exam...

Found in DMHL Volume 25 Issue 1

HIPAA Did Not Preclude Psychotherapist from Reporting That 16-Year-Old Boy Saw Child Pornography on His Father's Home Computer

United States v. Mathis, 377 F. Supp. 2d 640 (M.D. Tenn. 2005)

A sixteen-year-old boy disclosed to his psychotherapist that he saw (1) pornographic images of children on his father's computer at home and (2) his father sitting naked at his computer in front of a webcam.  Although there was no indication the father had sexually abused his son, the psychotherapist reported the disclosure to law enforcement authorities, which ultimately led to the arrest of the father. The father asserted that this report violated the Health Insurance Portability and Accountability Act (HIPAA) and, thus, all evidence generated as a result of this report, including a search of the father's computer, should be suppressed...

Found in DMHL Volume 25 Issue 1

Use of Five-Point Restraints on Inmates for 46-48 Hours Without Procedural Checks Ruled Unconstitutional

Card v. D.C. Dep't of Corr., No. 2:00CV631, 2005 WL 2260167 (E.D. Va. Sept. 13, 2005)

Incarcerated individuals with a mental illness may be particularly prone to engage in disruptive behavior.  When an inmate engages in disruptive behavior, correctional officials may respond in various ways.  They may reduce the inmate's privileges, place the inmate in isolation or segregation, or employ four- or five-point restraints to subdue the individual.  Under Virginia state policy, an inmate who tried to escape or demonstrated violent or unmanageable behavior could be positioned face up on a bed with leather straps applied to the wrists, ankles, and across the chest for up to forty-eight hours if initial approval had been provided by the Warden or Administrative  Duty Officer.  This policy was challenged by an inmate who had been placed in five-point restraints for 46-48 hours on five occasions (six to nine meal and restroom breaks were provided each time)...

Found in DMHL Volume 25 Issue 1

Requirements for Forcibly Medicating a Defendant Found Incompetent to Stand Trial Delineated by Fourth Circuit

United States v. Evans, 404 F.3d 227 (4th Cir. 2005)

The U.S. Supreme Court in Se// v. United States, 539 U.S. 166 (2003), held that the government may involuntarily medicate a criminal defendant to render the defendant competent to stand trial even though the defendant does not pose a danger to self or others.  The Supreme Court authorized such treatment under limited circumstances, but left it to the lower courts to flesh out the details of the requisite test. While reviewing a ruling by a federal judge in the Western District of Virginia, the Fourth Circuit provides many of these details...

Found in DMHL Volume 25 Issue 1

Capital Defendant Not Entitled To New Trial When His Attorney Failed to Investigate a Psychological Report Suggesting a Possible Organic Brain Disorder

Walker v. True, 401 F.3d 574 (4th Cir. 2005), petition for reh'g en bane denied, 411 F.3d 467 (4th Cir. 2005)

A defendant charged with murder and facing a possible death sentence has a right to present mitigating evidence that weighs against the issuance of the death penalty.  This can include evidence of a mental illness or mental retardation that demonstrates the defendant's diminished capacity and reduced responsibility for the crime.  The U.S. Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), established that a defendant has a Sixth Amendment constitutional right to "effective assistance" of counsel in discovering and presenting this evidence during the sentencing phase, and the Court indicated in Wiggins v. Smith, 539 U.S. 510 (2003), that this right required the defendant's attorney to diligently explore potentially relevant mental health evidence...

Found in DMHL Volume 25 Issue 1

Commonwealth Pays $85,000 After Resident at Geriatric-Psychiatric Facility Attacks Another Resident; Greater Number of Violent Attacks on Geriatric Residents in General Linked to Increase in Lawsuits

Fink, Ex'r Estate of Sarah Ann Lipscomb v. Commonwealth, Med-ma/ Death Settles for $85,000 Prior to Trial, 19 VA. LAW. WKLY. 1204 (Apr. 25, 2005)

A medical malpractice claim brought against the Commonwealth  of Virginia following the death of a resident at a state-operated geriatric/psychiatric  facility was settled prior to trial for $85,000.  Two days after being admitted, the resident was attacked by another resident, suffered a cerebral hematoma from being knocked down, and died a week later of complications from her injuries.  Family members in their lawsuit alleged the Commonwealth failed to provide a safe environment and inadequately supervised the aggressive resident, especially in light of evidence that staff knew or should have known about the aggressive resident's threatening behavior and violent tendencies. Depositions revealed facility staff were aware of previous acts of violence by the aggressive resident and the facility had the ability to separate and restrict aggressive residents from coming into unsupervised contact with other residents.  Fink, Ex'r Estate of Sarah Ann Lipscomb v. Commonwealth, Med-ma/ Death Settles for $85,000 Prior to Trial, 19 VA. LAW. WKLY. 1204 (Apr. 25, 2005)...

Found in DMHL Volume 25 Issue 1

Statute of Limitations Held to Bar Personal Injury Suit Against Catholic Diocese Based on 25-Year-Old Recovered Memories of Sexual Abuse

Mcconville v. Rhoads, No. L04-422, 2005 WL 1463850 (Va. Cir. Ct. June 8, 2005)

A man who alleged that he recently recovered memories of sexual abuse some twenty-five years earlier by a nun who taught at his Catholic school had his lawsuit against the Catholic Diocese of Richmond dismissed because the claim was barred by the Virginia statute of limitations on filing personal injury claims.  In Virginia, a lawsuit to recover for personal injuries generally must be filed within two years from the time the harm occurred, although if the injured person is a minor the two-year period does not begin to run until the person reaches the age of eighteen...

Found in DMHL Volume 25 Issue 1

Parental Rights of Woman with Schizophrenia Terminated for Failing to Take Needed Medication

Fields v. Dinwiddie County Dep't of Social Servs., 614 S.E.2d 656 (Va. Ct. App. 2005)

The Virginia Court of Appeals ruled that a woman's failure to consistently take the medication needed to control her mental illness could serve as the basis for terminating her parental rights.  Diagnosed with schizophrenia, the woman lost custody of her son immediately after his birth.  At the hospital she had initially said that she did not know she was pregnant and then stated that she had become pregnant from a tomato seed she had eaten in a can of spaghetti.  She lived alone at the time in a condemned house with no running water and only one working electrical outlet...

Found in DMHL Volume 25 Issue 1

Wife Was Competent to Execute a Settlement Agreement Even Though Treating Psychiatrist Testified That When He Saw Her Four Days Later She Was in "Acute Stage" of Bipolar Affective Disorder

Arey v. Arey, No. 0801-05-3, 2005 WL 2205646 (Va. Ct. App. Sept. 13, 2005)

To be binding, both parties to a contractual agreement must be mentally competent. Under Virginia law, each party is presumed to be competent and a party later seeking to establish incompetence has a "heavy burden" to show by clear and convincing evidence that the person "lacked the capacity to understand the nature and consequences" of the transaction.  A failure to exercise good judgment or to make wise decisions will not establish a party's incompetence...

Found in DMHL Volume 25 Issue 1

Young Girl Competent to Testify During Criminal Proceeding

Avalos v. Commonwealth, No. 2874-03-4, 2005 WL 1429772 (Va. Ct. App. June 21, 2005)

The Virginia Court of Appeals ruled that a young girl, whose exact age was not given, was competent to testify in a criminal proceeding.  The defendant in the case had been convicted of animate object sexual penetration of a child under the age of 13.  He claimed that the alleged victim was incompetent to testify because she did not independently remember the incident, had a limited capacity to recall the events, and did not understand or affirm the oath administered prior to her testimony...

Found in DMHL Volume 25 Issue 1

Children's Therapist Can Not Testify at Divorce Proceedings About Mother's Behavior

Schwartz v. Schwartz, 616 S.E.2d 59 (Va. Ct. App. 2005)

A court presiding over divorce proceedings in Virginia must consider the "mental condition of each parent" in making custody or visitation arrangements.  At the same time, as in most states, statements made to a licensed mental health care provider by a client are privileged (i.e., the provider cannot testify regarding any information obtained while examining or treating a client without the client's permission).  Formerly, this privilege was often disregarded during custody or visitation proceedings because the client was considered to have placed his or her mental condition at issue in these proceedings. However, a new law (VA. CODE § 20-124.3:1) was passed that limits the admissibility of mental health records in these proceedings.

Found in DMHL Volume 25 Issue 1

Request for New Trial and Opportunity to Raise Insanity Defense Based on Newly Discovered Evidence of Dissociative Identity Disorder Refused

Orndorff v. Commonwealth, 613 S.E.2d 876 (Va. Ct. App. 2005)

The use of diagnoses of Dissociative Identity Disorder (DID) (formerly known as multiple personality disorder) tends to be particularly controversial in the legal system.  Concerns have been raised about the validity of this diagnosis, its identification, its potential for manipulation, and its application in legal proceedings...

Found in DMHL Volume 25 Issue 1