Attorneys: Guidance needed for waiving presence at hearing

December 19, 2017

Counsel for both parties to a mental health commitment case agreed on one central issue when they argued before the Indiana Supreme Court on Tuesday: attorneys and judges need guidance on when a respondent’s right to be present at their commitment hearing can be waived.

The attorneys also agreed a waiver determination should be made at the outset of a hearing, and that in some cases, an attorney can waive a client’s right to be present if sufficient evidence exists. And looking to the specific facts of the case of Commitment of A.A. v. Eskenazi Health Midtown CMHC, 49S02-1711-MH-00688, the attorneys also agreed the procedures that led to A.A.’s involuntary commitment fell short of accepted legal standards and practices.

Bryan Babb, counsel for Eskenazi Health, told the justices the case arising from A.A.’s mental health commitment was not a matter of winners and losers, but rather was a matter of adding clarity to statutory procedures that can jeopardize a respondent’s rights and well-being. According Deb Markisohn, counsel for A.A., her client’s rights were violated when his trial counsel waived his right to be present at his commitment hearing.

After unsuccessfully trying to reach A.A. to discuss his upcoming mental health commitment hearing, A.A.’s trial counsel told the Marion Superior Court he was “agitated,” so his presence was waived. The trial court accepted that argument and ordered his regular commitment, and that decision set off an appeals process that seeks to answer the question of when a respondent can be excluded from a hearing.

From the Court of Appeals’ perspective, an attorney can never make such a waiver, and a trial court can only do so if it determines respondents’ presence at their hearings would be injurious to their mental health or well-being. The appellate court upheld A.A.’s involuntary commitment on those grounds.

Both Markisohn and Babb agreed the respondent’s counsel or petitioner must put forth evidence that the respondent was competent to make a knowing and voluntary waiver of their rights, or a judge must have evidence that forcing the respondent to come to court or participate electronically would meet the statutory standard of injuriousness. But their views parted ways on the issue of what to do if a judge is later presented with evidence that causes him to change his decision regarding whether a respondent’s right to be present can be waived.

Justices Steve David, Mark Massa and Christopher Goff tackled that issue by asking whether the same evidence that is used to support a finding of injuriousness could also be used to support a finding that the respondent is gravely disabled, the standard that must be met to support an involuntary commitment. From Markisohn’s perspective, the answer to that question was “No,” because the issue of whether a respondent can come to a commitment hearing addresses a different question than whether they must be committed for mental health treatment against their will.

Babb, however, said the evidence put forth for those two determinations is not necessarily mutually exclusive. Thus, Babb discouraged the court from drawing a judicial line that would prohibit a judge from later determining a respondent should be present after hearing evidence regarding grave disability.

While Markisohn said she did not necessarily disagree with that premise, she advocated for bifurcating a commitment hearing if a judge decides to change an initial ruling on a respondent’s right to be present, rather than allowing all of the evidence to come in through one proceeding and co-mingling evidence related to both the injurious and gravely disabled standards.

For her part, Markisohn told the court she wants A.A. to be given a new hearing that would give him the opportunity to share his version of the events that led up to his involuntary commitment. Babb, however, advocated only for the court to develop a system that would require evidence to be put forth in any instance of individual or judicial waiver.  

The full oral arguments in the case can be viewed here.


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