In the book The Biological Origin of Human Values, George Edgin Pugh wrote, “If the human brain were so simple that we could understand it, we would be so simple that we could not.” While the human mind is still in many ways a mystery, our understanding of it has greatly increased in the approximately 40 years since Mr. Pugh published his book.
The increased understanding of our minds and how they operate has led to a number of significant changes across all aspects of our society. The legal system is no exception. Currently, some of the best and brightest minds in the legal profession agree that the criminal justice system is the primary means of dealing with individuals suffering from mental health issues.1 Local jail costs related to mental illness exceed $50 million per year for some counties.2 Almost no one is happy with the system the way it is.
Recently, there were two very good signs that change might be coming. One, the 85th Legislature passed the Sandra Bland Act, which made a number of sweeping changes to jail standards and law enforcement training in mental health, and two, the Supreme Court of Texas and Court of Criminal Appeals jointly formed the Judicial Commission on Mental Health. That said, no one can today can say what new recommendations the two high courts’ judicial commission might make, and the 86th Legislature is equally unpredictable. Who knows what new legislation be passed and whether the state or local government will be required to fund it?
With so much uncertainty on the horizon, it’s important that the many fine attorneys for the State of Texas (that’s you) be familiar with the mental health tools we have available. As it stands today, the biggest tool in our toolbox is the involuntary mental health commitment. Like all things in our line of work, larger, urban counties will deal with involuntary mental health commitments much more frequently than rural counties. The differences in resources between urban and rural can mean a lot when it comes to how effectively and efficiently authorities can respond to a mental health crisis. However, the legal requirements for an involuntary commitment are the same whether your county is large or small. While the process can be intimidating for the uninitiated, it is generally pretty predictable and will become second nature with a little bit of practice.
Where to start?
The journey of a thousand miles begins with a single step, or so I have been told. When I get asked a question about how to conduct legal research, I tell people the first step is always the Constitution and the second is always the Code. Except that’s not what I’m telling you today. The first step in understanding involuntary mental health commitments is to find out who the mental health gurus are in your local sheriff’s office.
For a rural county like mine, it might be the patrol lieutenant or someone in jail administration. In a larger, urban county, you will probably speak with a really cool group of specially trained individuals, often called a Crisis Intervention and Response Team (CIRT), who specialize in mental health issues.3 Whoever your guru is, get him to walk you through the policies and procedures from initial call or contact forward. After the guru has told you everything, get him to direct you to the mental health authority for your area.4 From the mental health authority, you will want to make time to speak with the county clerk’s office and the probate court that handles involuntary civil commitments. Take the time and get every one of those people to tell you “everything.”
Why go through all this trouble? Why not just pore over the Health and Safety Code yourself? Why not call a colleague in the next county and see how she does it? It is important to spend time learning from the mental health stakeholders in your area for a number of reasons, the biggest being that, while the statutory requirements for every county are the same, everybody seems to handle commitments just a little bit differently. The lingo is going to fluctuate from county to county. The available resources from one county to the next can vary wildly.5 The simple fact is that nobody is going to know the ins and outs of your county’s mental health system better than the people who work in the system every single day. Your local experts can paint you a picture of the whole process, from beginning to end, that you just won’t be able to replicate by simply reading the statute. Moreover, the information that mental health stakeholders in your county provide will help in understanding the requirements of the Health and Safety Code itself.
To the surprise of no one reading this article, the first call about someone experiencing a mental health crisis is usually to 911. If you are in a county with the resources, a specialized unit (such as a CIRT team) will be dispatched to the person’s location. If you are in a more rural jurisdiction, the closest police department or sheriff’s office unit should be dispatched.
Whoever arrives at the scene will ultimately have to decide if the person has a mental illness6 and whether, because of that mental illness, there is a substantial risk of serious harm to that person or a third party unless that person is immediately restrained. The Health and Safety Code states that a substantial risk of serious harm can be determined by:
1) the person’s behavior or
2) evidence of severe emotional distress and deterioration in the person’s mental condition.7
Officers don’t have to observe this behavior themselves. They can form the belief that the person requires apprehension based on information provided by a credible third party, the person’s own conduct, or the circumstances under which the person is found.8
Once the officer determines the person meets the criteria for apprehension, the Health and Safety Code authorizes him to take the person into custody immediately, so long as there is not sufficient time to obtain a warrant before taking the person into custody.9 This will be the case most of the time. By the time a person’s behavior has destabilized enough that someone calls 911, time will be of the essence. A peace officer who takes a person into custody under Health and Safety Code §573.001 is required to immediately transport him to the nearest appropriate mental health facility10—a jail or other detention facility will be suitable only in an extreme emergency.11 What facility someone goes to will vary on a county-by-county basis. This is a prime example of why it is good to talk to the mental health stakeholders about your local process for handling mental health crises.
When a peace officer makes a warrantless apprehension as described above, he is required to file a notification of detention. The Health and Safety Code provides the exact form for this notification,12 and it must be filed with the mental health facility. Generally, this form requires the officer to lay out the specific facts giving rise to the detention under §573.001.13 Mental health facilities must accept this form and can’t require peace officers to complete any additional form. After the peace officer has delivered the person to a mental health facility, he must notify the probate court with jurisdiction no later than the next business day.
Once detained, the mental health facility must do a preliminary examination.17 The facility may not keep the person in custody for more than 48 hours unless an order for protective custody is obtained.14 This 48-hour window includes any time the person spends waiting for medical care before the preliminary examination. The physician assigned to conduct this preliminary examination must do so as soon as possible but no later than 12 hours after the person is apprehended by the peace officer.15
For the person to be admitted to the facility for an emergency detention, the physician conducting the preliminary examination must essentially make findings analogous to the peace officer’s requirements to do a warrantless apprehension:16 The physician must find that the person has a mental illness, that there is a substantial risk of harm to himself or others, and that emergency detention is the least restrictive means by which the necessary restraint can be accomplished. This report must include a description of the nature of the person’s mental illness and a specific description of the risk of harm the person evidences.
If the physician does not make all of the findings required by §573.022, the person is to be released at the conclusion of the preliminary examination. If the person is detained under §573.022 and, at any point during the emergency detention, his condition improves and one of the requirements of §573.022 is no longer applicable, the person must be released.
Court-ordered mental health services
Many people detained under Chapter 573 will be released without any work on the part of a prosecutor’s office. The physicians attending them will prescribe new medications or, just as likely, get them back on medications they have been previously been prescribed and send them on their way to live calm, productive lives (let’s hope). Some people will not be so lucky, and that is where you come in.
County or district attorneys can file an application for court-ordered mental health services in the probate court of the county where the proposed patient 1) resides, 2) is found, or 3) is receiving mental health services as a result of a peace officer’s apprehension.18 There are some very specific requirements for the form of the application set out by §574.002. Double-check the application to make sure it meets the requirements. It’s been my experience that neither the county clerk nor mental health facilities will shy away from rejecting documents for error. Don’t let your mistake be the reason an ill person’s treatment is delayed.
A hearing on this application must be set within 14 days of its filing. Before the hearing, there must be two certificates of medical examination on file with the court.19 Each physician must have examined the proposed patient in the past 30 days and at least one of the physicians must be a psychiatrist (if a psychiatrist is available in the county). The requirements for these certificates are in §574.011.
After the application for court-ordered mental health services is filed, a motion for protective custody may be filed in the same court.20 The county or district attorney may file it, but it may also be filed on the court’s own motion. This motion must be accompanied by a medical certificate prepared by a physician who has examined the proposed patient within the past three days, even the physician who conducted the individual’s preliminary examination.
Within 72 hours of the proposed patient being taken into custody, the court must hold a hearing to determine if there is probable cause to believe that a patient under a protective custody order presents a substantial risk of serious harm to himself or others to the extent that he can’t remain free while the hearing on court-ordered mental health services is still pending.21 The court must also find that a physician has stated her opinion that the person has a mental illness, along with the detailed reasons for that opinion. The State can prove its case by way of the certificate of medical examination attached to its initial motion. If the court finds probable cause to believe the proposed patient presents a substantial risk of harm to himself or others to the extent the proposed patient can’t remain free, the court will issue an order for continued detention. The exact language of this order is specified by statute.22 If the court does not find that probable cause exists, the proposed patient must be immediately released.23
As mentioned before, the final hearing must be set within 14 days of the application for court-ordered mental health treatment being filed.24 All of the rules governing the hearing can be found in Subchapter C of Chapter 574, but I’ll touch on some of the big ones here. The proposed patient has a right to be present at the hearing and to have a jury trial, but these rights may be waived by the patient or the patient’s attorney.25 The hearing is open to the public, but the proposed patient or the patient’s attorney can request it be closed so long as the judge determines that there is good cause to close the hearing. The Rules of Evidence apply unless they are inconsistent with Chapter 574, and the State must prove each element of the criteria by clear and convincing evidence.
A judge may enter an order for the proposed patient to receive court-ordered inpatient mental health treatment if the fact-finder finds by clear and convincing evidence that the proposed patient has a mental illness and as a result of that mental illness:
• the patient is likely to cause serious harm to himself;
• the patient is likely to cause serious harm to someone else; or
• the proposed patient is:
1) suffering from severe and abnormal mental, emotional, or physical distress;
2) experiencing substantial mental or physical deterioration of his ability to function independently, which is exhibited by an inability to provide for basic needs (food, clothing, health, and safety); and
3) unable to make a rational and informed decision as to whether or not to submit to treatment.26
A judge may enter an order for the proposed patient to receive court-ordered outpatient mental health treatment if the fact-finder finds, by clear and convincing evidence, that appropriate mental health services are available to the proposed patient, and that the proposed patient has a mental illness and;
• the nature of the mental illness is severe and persistent;
• as a result of the mental illness, the proposed patient will, if not treated, continue to:
1) suffer severe and abnormal mental, emotional, or physical distress; and
2) experience deterioration of the ability to function independently to the extent that the proposed patient will be unable to live safely in the community without court-ordered outpatient mental health services; and
3) the proposed patient has an inability to participate in outpatient treatment services effectively and voluntarily, demonstrated by:
• any of the proposed patient’s actions occurring within the two-year period immediately precedes the hearing; or
• specific characteristics of the proposed patient’s clinical condition that make impossible a rational and informed decision whether to submit to voluntary outpatient treatment.27
To prove its case, the State (typically) will introduce the two medical certificates into evidence. Next, the State will put on a doctor who has examined the patient to prove the elements for either inpatient or outpatient treatment. The State must put on competent medical or psychiatric testimony.28 It’s good practice to call the officer who swore out the affidavit supporting the original application for detention as well. Between the doctor and the peace officer, you should be able to cover all of the elements required. The ad litem attorney for the proposed patient will have the opportunity to cross-examine these witnesses and any others the State feels are necessary.
The order signed by the judge at the conclusion of the proceeding shall state that the treatment is authorized for not longer than 45 days,29 though the court may order a period not to exceed 90 days if necessary. This restriction applies to orders for temporary inpatient and temporary outpatient mental health services alike.
Extended mental health services are available under §574.035. The State’s burden in a hearing for extended court-ordered mental health services is very similar to its burden at the initial hearing. The key difference is that, in the case of both inpatient and outpatient treatment, the person’s condition is likely to persist for at least 90 days and the person has already received court-ordered mental health treatment for 60 or more days over the preceding 12 months.30 To meet the clear and convincing evidentiary standard, the evidence must include expert testimony and evidence of a recent overt act or pattern of behavior. Live witnesses are required. Under §574.035(h), an order for inpatient or outpatient services must state that the treatment is authorized for “not longer than 12 months”—the court is not allowed to specify a shorter period.
Mental health commitments can seem daunting for the uninitiated. However, a few attentive conversations with the right people in your county and a little bit of study on the topic will go a long way. Once you understand the underlying law, an involuntary mental health commitment is no different from any other contested hearing a prosecutor’s office handles. Know the underlying facts, prepare your witnesses, and understand what you are required to prove, and you will be all set.
1 Order Establishing Judicial Commission on Mental Health, Supreme Court Misc. Docket No. 18-9025, Court of Criminal Appeals Misc. Docket No. 18-004 (Feb. 13, 2018).
3 If you have one of these teams know that 1) I’m incredibly jealous and 2) your group could be called something wildly different than the Crisis Intervention and Response Team. From the outside looking in, it seems that every county with a group like this calls them something different.
4 For example, a large swath of rural East Texas will get referred to Community Healthcore. A number of counties in the Dallas area will be referred to the North Texas Behavioral Health Authority.
5 For example, Harris County is experimenting with a pilot “tele-psychiatry” program where individuals who are experiencing a mental health crisis are given an iPad that allows them to have a 20-minute, face-to-face therapy session with a licensed psychiatrist. That psychiatrist can then prescribe medication and, if necessary, recommend the person be taken to an appropriate mental health facility.
6 As opposed to someone whose aberrant behavior is being caused by something else (for example, voluntary intoxication).
7 Tex. Health and Safety Code §573.001(b).
8 Tex. Health and Safety Code §573.001(c).
9 Tex. Health and Safety Code §573.001(a).
10 Tex. Health and Safety Code §573.001(d).
11 Tex. Health and Safety Code §573.001(e).
12 Tex. Health and Safety Code §573.002(d).
13 Tex. Health and Safety Code §573.002(b)(1)–(6).
14 Tex. Health and Safety Code §573.021(b).
15 Tex. Health and Safety Code §573.021(c).
16 Tex. Health and Safety Code §573.022.
17 Tex. Health and Safety Code §573.023(a).
18 Tex. Health and Safety Code §574.001(a)–(b).
19 Tex. Health and Safety Code §574.009(a).
20 Tex. Health and Safety Code §574.021.
21 Tex. Health and Safety Code §574.025(a)(1).
22 Tex. Health and Safety Code §574.026(d).
23 Tex. Health and Safety Code §574.028.
24 Tex. Health and Safety Code §574.005.
25 Tex. Health and Safety Code §574.031(c), §574.032.
26 Tex. Health and Safety Code 574.034(a).
27 Tex. Health and Safety Code §574.034(b).
28 Tex. Health and Safety Code §574.034(f).
29 Tex. Health and Safety Code §574.034(g)
30 Tex. Health and Safety Code §§574.035(a)(3)–(4); 574.035(b)(2)(E)-(F).