This chapter pertains to cases of involuntary commitment of the mentally
ill. Under Oregon law, a mentally ill person is a person who, because
of a mental disorder, is either dangerous to self or others or unable
to provide for basic personal needs and is not receiving such care as
is necessary for health or safety. The types of cases referred to in this
chapter as 'commitment proceedings' include initial commitment, re-commitment,
conditional release, trial visit revocation, outpatient commitment, and
'diversion' (a 14 day period of intensive treatment). Because it is generic,
the term 'commitment client' is used in this chapter in lieu of the term
'allegedly mentally ill person.'
Not addressed in this chapter are any specific standards that may apply
to civil commitment of the mentally retarded. Nonetheless, counsel will
find this chapter useful in cases involving involuntary commitment of
the mentally retarded.
STANDARD 4.1
Pre-requisites For Representation
In addition to being proficient in substantive and procedural law, counsel
should possess knowledge, skill, training and experience commensurate
with the nature of the allegations and the complexity of the case. Implementation
1. At a minimum, counsel should meet the requirements of the Qualification
Standards for Court Appointed Counsel to Represent Indigent Persons
at State Expense, Oregon Judicial Department (1990), Standard 3.1 F.
2. Counsel should have basic knowledge of the classification of mental
disorders (Diagnostic and Statistical Manual of Mental Disorders
[Fourth Edition Revised]) and the ability to read and understand
medical terminology related to mental disorders and the treatment of
the mentally ill.
3. Counsel should be familiar with the medications used to treat mental
disorders and, in particular, the effects of those medications on the
client's participation.
4. Counsel should be aware of how a particular mental disorder will
affect attorney/client communications. Counsel should recognize communications
may require special efforts on the part of counsel.
5. Counsel should have familiarity with mental health resources and
other resources available in the community that will provide an alternative
to involuntary hospitalization.
6. Counsel should be familiar with the facilities, both inpatient and
outpatient, that provide services to the mentally ill.
7. Counsel should frequently represent clients in commitment proceedings.
If counsel is not frequently before the court representing commitment
clients, counsel should observe local court proceedings and/or consult
with counsel experienced in local commitment proceedings. Counsel should
be familiar with local court practices.
8. Counsel should avail oneself of any CLE's or specialized training
to further educate counsel on substantive issues, substantive law, statutory
law and procedures, local court rules, and local practices as they relate
to commitment proceedings.
STANDARD 4.2
Counsel's Role
It is counsel's role to act as a zealous advocate for the client's ultimate
goals and objectives in the commitment proceedings and to advise the client
on how best to achieve them.
Implementation
1. It is counsel's duty to ascertain the client's ultimate goals and
objectives in the proceedings.
a. It is the unusual circumstance where the client cannot express
the ultimate goal, i.e., 'I want out of this hospital, jail, custody
situation.' Counsel should nearly always be able to ascertain if the
client's desire is 'liberty'. If the client desires liberty, then
counsel should work to achieve liberty.
b. Counsel should assume the role of advocate for the client's rights
and not attempt to take on an additional role. Counsel is not the
judge, the consensus of the community, the client's family member,
the prosecutor or the mental health provider.
c. In those rare instances when a client, because of mental status,
cannot express his or her ultimate goals and objectives in the commitment
proceedings, it is the role of counsel to protect the client's constitutional
and statutory rights.
2. Counsel should advise the client of probable successes and consequences
of adopting any posture in the proceedings.
3. Counsel should assess whether counsel has the requisite training,
skill, knowledge and experience to represent a commitment client in
other types of legal matters before undertaking representation in such
matters.
4. If counsel represents the commitment client in other types of proceedings,
such as guardianship, conservatorship, or criminal proceedings, counsel
should assess how the client's participation and position in one proceeding
may potentially affect the client's participation and position in other
proceedings and advise the client accordingly. For example, if counsel
represents a client in both a civil and criminal matter, it may potentially
pose problems if counsel asserts a claim of mental disorder exculpating
culpability in the criminal matter while on behalf of the same client
counsel argues against a civil commitment because the client denies
a mental disorder.
STANDARD 4.3
Initial Client Interview
Upon being retained or appointed by the court, counsel should conduct
an initial interview with the client as soon as possible, in most cases
within 24 hours, but in all cases prior to the hearing.
Implementation
1. Counsel should ascertain where the client is located and visit personally.
In many instances, the client will be detained in a hospital, jail,
or locked care facility. In the remaining cases, the client will be
located via the information contained in the citation or delivery warrant.
2. In the initial interview, counsel should:
a. clearly introduce herself to the client and make sure the client
understands the role counsel plays in the civil commitment process
and the difference between counsel's role and that of the state's
attorney;
b. discuss the issue of client confidentiality and secure the client's
oral and written permission to obtain access to relevant records;
c. explain the reason for the commitment proceedings and the possible
results;
d. ascertain the client's desired resolution;
e. explain legal rights;
f. provide legal advice;
g. describe the likely course of events;
h. prepare the client for a mental status exam by examiners appointed
to aid the judge; and
i. describe the burden of proof and the findings the court must make
in order to further deprive the client of liberty.
3. When counsel has ascertained the client's ultimate goal, counsel
should advise the client of the available options and the probable success
and consequences of choosing a particular option. For example, if the
client wants discharge but in counsel's estimation is likely to be more
successful in presenting a conditional release, that alternative should
be presented to the client. Counsel should follow the client's desires
as to which option to pursue.
4. Counsel should inform the client of:
a. the right to a postponement and the likelihood of continued detention
during the postponement;
b. the right to subpoena witnesses, including expert witnesses;
c. the right to subpoena any physician who is, or has been, treating
the client at the client's request and counsel's statutory obligation
to do so under ORS 426.075(4);
d. the right to assert applicable privileges regarding confidential
communications with a psychologist, psychiatrist, caseworker, physician,
social worker or others, and the likely results of waiver of that
privilege;
e. the right to have the investigator personally present at the hearing
as a pre-requisite to admissibility of the investigator's report;
f. the right to object to the admissibility of hearsay in the investigator's
report; and
g. the right to request a qualified examiner in addition to the one
the Court is required to appoint.
5. If the proceedings are for a violation of trial visit or a violation
of conditional release, counsel should describe the proceeding, the
standard of proof required, the allegations before the Court, and advise
the client of the consequences of a revocation.
6. If the proceeding is a re-commitment proceeding, counsel should
inform the client of the right to protest re-commitment and require
an independent medical examination.
7. If the client is detained because of a certificate for a 14 day
period of intensive treatment, 'diversion', counsel shall meet with
the client and review the certificate within 24 hours of the filing
of the certificate. Counsel shall inform the Court whether the client
consents to or protests the certificate within one judicial day of the
time the certificate is delivered to the Court. ORS 426.237(3)(c)
8. Counsel should inform the client in the applicable case of the fact
that the Court may prohibit the client from possession of a firearm
in the future.
9. Counsel should advise the client of the legal basis under which
the Court will order:
a. discharge;
b. commitment;
c. conditional release;
d. revocation or modification of a trial visit;
e. outpatient commitment;
f. recommitment; and
g. the length of commitment.
STANDARD 4.4
Obligations Of Counsel Pre-hearing
Counsel should obtain documents filed in the case, review reports and
records of relevance, prepare pre-trial motions and engage in negotiations
at the client's direction.
Implementation
1. Counsel should obtain and review where relevant the:
a. court file;
b. investigation report;
c. medical records;
d. police reports; and
e. evidence offered by opposing counsel.
2. Counsel should conduct interviews with relevant witnesses prior
to the hearing.
3. Counsel should research, prepare, file and argue pre-trial motions
to protect the client's statutory and constitutional rights:
a. counsel should review and challenge the substance and process
of the initiation of the commitment proceedings:
i. counsel should ascertain if the notification of mental illness
meets the statutory criteria for substance and process, including
whether the notification is under oath, contains the factual basis
for a commitment proceeding, meets the statutory requirements for
a commitment proceeding, and comports with the timeliness provisions
of the statute;
ii. counsel should review the notice and content of the investigator's
report to see if they comport with the statutory requirements;
iii. counsel should review the notice and filing of medical records
sought to be introduced; and
iv. counsel should review the basis for a warrant of detention
and determine if the warrant is sufficient in its substance, execution
and return.
b. counsel should challenge for bias the judge or mental health examiners,
where appropriate.
c. counsel should be aware of the basis for and file a motion to
seek release from custody in the form of a Petition for Writ of Habeas
Corpus when appropriate.
d. counsel should be aware of the application of the rules of evidence
in the commitment proceedings and litigate matters of admissibility
of evidence by means of a motion in limine when appropriate.
e. counsel should make appropriate requests for extraordinary expenses
for the services of experts when necessary.
4. Counsel should ascertain whether the client may achieve the ultimate
goal without the necessity of a contested commitment hearing. If appropriate
in furtherance of that goal, counsel should:
a. seek to negotiate a satisfactory outcome with opposing counsel;
b. approach the mental health investigator about a dismissal or less
restrictive resolution without the necessity of a hearing;
c. prepare and present a conditional release alternative;
d. prepare and present a stipulation to the basis for a commitment
to the court; and
e. determine if a postponement will assist in achieving the client's
desired resolution. counsel should seek the postponement at the client's
request.
STANDARD 4.5
Commitment Proceedings
Counsel should provide quality representation and advocacy for the client
at commitment proceedings.
Implementation
1. At a hearing, counsel should be prepared to:
a. raise procedural motions, including the exclusion of witnesses
at the client's request;
b. assert privileges, including the physician/patient, psychotherapist/patient,
social worker/patient and other privileges;
c. protect against self-incrimination;
d. make an effective opening statement as to the client's ultimate
goal and the facts that will be presented to support that goal;
e. cross-examine and present expert and lay witnesses;
f. present a plan for discharge;
g. present alternatives, including conditional release, voluntary
commitment and outpatient commitment, where appropriate; and
h. present stipulations.
2. In closing, counsel should argue strict application of the burden
of proof and the law.
3. At all times, counsel should endeavor to preserve the record for
appeal.
STANDARD 4.6
Obligations Of Counsel Post-hearing
It is counsel's responsibility to represent or obtain representation
for any residual legal matters relating to the case.
Implementation
1. Counsel should take the necessary actions to effect an appeal at
the client's request. Counsel should undertake to file a Notice of Appeal
or assure that alternative counsel is appointed to perfect an appeal.
2. Counsel should assess any treatment issues that exist requiring
legal intervention and, where appropriate, refer the client to the bar
association, advocacy group, attorney general's office, legal aid, private
counsel or other appropriate source.
3. Counsel should, where appropriate, inform the client of the existence
of social services, such as housing and food available in the community,
the existence and location of community mental health providers, and
the existence of medical treatment available in the community upon discharge
from a hospital.
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