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Fresh cases setting precedents in mental health law

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Under what circumstances may someone be excluded from a hearing to determine whether they should be committed for mental health treatment?

eskenazi-6-15col.jpg Eskenazi Health in Indianapolis is at the center of appeals that are shaping the law around individual rights in involuntary mental health commitments in Indiana. (IL file photo)

The Indiana Court of Appeals grappled with that question during oral arguments June 28, just one day after another panel ruled on another matter of first impression regarding involuntary commitment — the court itself noting scarce caselaw.

Both cases involve Eskenazi Health in Indianapolis and patients who had been committed to the hospital’s inpatient psychiatric unit on an emergency basis. An attorney representing Eskenazi, Bryan Babb of Bose McKinney & Evans LLP, asked the court multiple times June 28 for guidance on how judges should handle commitment hearings where a person isn’t present at their hearing.

But the panel of judges expressed concern that the patient’s trial court lawyer in this case, A.A. v. Eskenazi Health/Midtown Community Mental Health Clinic, 49A02-1610-MH-02286, waived his client’s right to appear at the regular commitment hearing before ever talking with him.

“We’ve got a person who’s taken into custody because they’re acting out and they’re not apparently very rational, and somebody who’s never talked to them waives their right to be at a hearing. That’s just problematic,” presiding Judge John Baker said.

Babb agreed but said in this case, Marion Superior Probate Judge Steven Eichholtz faced a difficult decision. Babb said A.A. had assaulted staff during an emergency commitment on the Friday of Labor Day weekend last year, and his commitment hearing didn’t take place until the following Tuesday.

Eichholtz, Babb said, had to make a tough call as a practical matter. “Here is this individual’s mother. She is testifying. She is saying, ‘Please, please help me. This individual is sick, he’s threatened me, he’s threatened his brothers.’”

Judge Margret Robb observed that A.A.’s situation may have changed, though, between the time of his emergency commitment and his hearing. A.A. had gone off his medication, according to the record, but had been sedated and under treatment that weekend.

Nevertheless, Babb said he believed that even if A.A. had appeared, the commitment would have been justified. “I think it’s difficult for a judge to sit there and say, ‘You know what, ma’am? I’m sorry, but I’m not going to commit him, and I’m going to allow him to go back into your care and threaten you, and threaten his brothers — your other children — notwithstanding the fact I know he already knocked a grown man out,’” he said.

But Deborah Markisohn of the Marion County Public Defender Agency said A.A.’s due process and statutory rights were violated when he was not allowed to attend his commitment hearing. She cited the exception in Indiana Code 12-26-2-2(b)(3)(B) that allows a court to waive that person’s right to attend the hearing if the person’s presence would be “injurious to the individual’s mental health or well-being.” Here, she said the only evidence properly before the court was that A.A. was “agitated.”

She noted a doctor’s statement said A.A.’S attendance would not have been injurious.

“The colloquy that should have occurred that morning should have been something to the effect of the trial judge realizing that it was his duty to ensure that A.A.’s rights were protected,” she said. The judge “should have asked counsel for the hospital, ‘Why isn’t he here, what’s going on?’’”

But Judge Robert Altice noted A.A. had had multiple temporary commitments in the past year alone and stressed the nature of his physical altercations with staff.

Markisohn, though, stressed the importance of the right of a person to attend these hearings not just from a due process standpoint, but also for practical, even therapeutic, reasons. “Being present in court is particularly important for individuals like A.A. who suffer from paranoia, and they distrust others and are concerned they are treated fairly,” she said. “It’s important for people to understand why they were committed, and for the judges to hear their voice and know what their concerns are. These are some of our most vulnerable litigants, and they need to be listened to, and they need to know that the process for their commitment was fair.”

Babb noted that commitment hearings are now taking place more frequently at the hospital, which will make transportation of people from the psychiatric unit less of an issue in the future.

‘Undeveloped’ area of law

Separately, a panel of the Court of Appeals on June 27 ruled against Eskenazi in a case the hospital argued was moot because it dealt with special conditions in a mental health order that had expired.

“Because this is an issue of great public importance that is likely to recur and for which Indiana case law is practically undeveloped, we will address it here,” Judge Patricia Riley wrote for the majority that struck a condition that a committed man not use alcohol or drugs not prescribed by a doctor when he attained outpatient status.

There was no indication that M.L. used alcohol or drugs, and Dr. Aimee Patel testified he did not. Patel treated M.L., who she said exhibited clear bipolar mania in November 2016. He was admitted to the inpatient psychiatric unit on an emergency detention. M.L. had been previously treated at the hospital, and he returned demanding a list of chemicals he had been exposed to. Patel said M.L. was paranoid, delusional, pressured, and threatened himself and staff after he was placed in restraints.

But there was no evidence to support the special condition, the majority held, rejecting the hospital’s argument that M.L. had waived the argument on appeal because he had not raised it during prior hearings.

“… During Dr. Patel’s testimony, it was incumbent upon Eskenazi to elicit sufficient evidence with respect to the particularities of its request and its reason to impose the challenged special condition. There was nothing for M.L. to object to, and M.L. was not under a burden to present evidence as to the special condition’s necessity. Silence was indeed M.L.’s best strategy here,” Riley wrote in an opinion joined by Judge Edward Najam.

The majority also took Eskenazi to task for seeking attorney fees for an appeal the hospital argued was frivolous or in bad faith.

“We are taken aback with Eskenazi’s request for appellate attorney’s fees to be assessed against another arm of the same Marion County government. The Marion County Public Defender and Eskenazi serve a similar clientele — the most indigent and vulnerable in our community — and both are a vital part of that same public safety net for Marion County. To seek a financial retribution from the Public Defender Agency for protecting involuntarily committed individuals’ constitutional rights based on Eskenazi’s own misunderstanding of the legal mechanics of objection and waiver is remarkable. We deny Eskenazi’s request,” the majority wrote.•

Judge Cale Bradford dissented and would have affirmed the trial court, finding M.L. waived any challenge. The case is In the Matter of the Civil Commitment of: M.L. v. Eskenazi Health/Midtown Mental Health CMHC, 49A02-1612-MH-2823.•

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  1. He TIL team,please zap this comment too since it was merely marking a scammer and not reflecting on the story. Thanks, happy Monday, keep up the fine work.

  2. You just need my social security number sent to your Gmail account to process then loan, right? Beware scammers indeed.

  3. The appellate court just said doctors can be sued for reporting child abuse. The most dangerous form of child abuse with the highest mortality rate of any form of child abuse (between 6% and 9% according to the below listed studies). Now doctors will be far less likely to report this form of dangerous child abuse in Indiana. If you want to know what this is, google the names Lacey Spears, Julie Conley (and look at what happened when uninformed judges returned that child against medical advice), Hope Ybarra, and Dixie Blanchard. Here is some really good reporting on what this allegation was: http://media.star-telegram.com/Munchausenmoms/ Here are the two research papers: http://www.sciencedirect.com/science/article/pii/0145213487900810 http://www.sciencedirect.com/science/article/pii/S0145213403000309 25% of sibling are dead in that second study. 25%!!! Unbelievable ruling. Chilling. Wrong.

  4. Mr. Levin says that the BMV engaged in misconduct--that the BMV (or, rather, someone in the BMV) knew Indiana motorists were being overcharged fees but did nothing to correct the situation. Such misconduct, whether engaged in by one individual or by a group, is called theft (defined as knowingly or intentionally exerting unauthorized control over the property of another person with the intent to deprive the other person of the property's value or use). Theft is a crime in Indiana (as it still is in most of the civilized world). One wonders, then, why there have been no criminal prosecutions of BMV officials for this theft? Government misconduct doesn't occur in a vacuum. An individual who works for or oversees a government agency is responsible for the misconduct. In this instance, somebody (or somebodies) with the BMV, at some time, knew Indiana motorists were being overcharged. What's more, this person (or these people), even after having the error of their ways pointed out to them, did nothing to fix the problem. Instead, the overcharges continued. Thus, the taxpayers of Indiana are also on the hook for the millions of dollars in attorneys fees (for both sides; the BMV didn't see fit to avail itself of the services of a lawyer employed by the state government) that had to be spent in order to finally convince the BMV that stealing money from Indiana motorists was a bad thing. Given that the BMV official(s) responsible for this crime continued their misconduct, covered it up, and never did anything until the agency reached an agreeable settlement, it seems the statute of limitations for prosecuting these folks has not yet run. I hope our Attorney General is paying attention to this fiasco and is seriously considering prosecution. Indiana, the state that works . . . for thieves.

  5. I'm glad that attorney Carl Hayes, who represented the BMV in this case, is able to say that his client "is pleased to have resolved the issue". Everyone makes mistakes, even bureaucratic behemoths like Indiana's BMV. So to some extent we need to be forgiving of such mistakes. But when those mistakes are going to cost Indiana taxpayers millions of dollars to rectify (because neither plaintiff's counsel nor Mr. Hayes gave freely of their services, and the BMV, being a state-funded agency, relies on taxpayer dollars to pay these attorneys their fees), the agency doesn't have a right to feel "pleased to have resolved the issue". One is left wondering why the BMV feels so pleased with this resolution? The magnitude of the agency's overcharges might suggest to some that, perhaps, these errors were more than mere oversight. Could this be why the agency is so "pleased" with this resolution? Will Indiana motorists ever be assured that the culture of incompetence (if not worse) that the BMV seems to have fostered is no longer the status quo? Or will even more "overcharges" and lawsuits result? It's fairly obvious who is really "pleased to have resolved the issue", and it's not Indiana's taxpayers who are on the hook for the legal fees generated in these cases.

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