This Court repeatedly has recognized that civil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection....Moreover, it is indisputable that involuntary commitment to a mental hospital after a finding of probable dangerousness to self or others can engender adverse social consequences to the individual. Whether we label this phenomena "stigma" or choose to call it something else is less important than that we recognize that it can occur and that it can have a very significant impact on the individual.¹

This article, which is an attempt by the members of the State Bar Committee on Mental Disability Law to offer guidance to attorneys representing adults in civil commitment proceedings, has appeared twice previously in the Michigan Bar Journal.² By updating this article, it is hoped that changes in the law, as well as in the delivery of mental health services, will be brought to the attention of members of the bar. The committee hopes that it will be helpful for those attorneys who do not regularly practice in this area to gain some understanding of the civil commitment process.

More importantly, however, it is the intent of the committee to restate the fundamental, but often forgotten, principle that civil commitment for mental health treatment is inherently a deprivation of an individual’s civil liberty. The duty of zealous representation is owed by attorneys to their clients in civil commitment proceedings.

The Michigan Supreme Court has been quite clear on this point. According to the Probate Court rules, the duty of an attorney is to "....serve as an advocate for the individual’s preferred position."³ Thus, the failure of an attorney under any circumstances and for whatever reason to zealously advocate for the stated preferences of his or her client is a violation of the ethical responsibilities of the attorney and is an act of malpractice. We hope that the guidance furnished in this article will help attorneys avoid such pitfalls.

There are options available to clients who voluntarily seek inpatient mental health treatment. In Michigan, there are two forms of voluntary mental health treatment, informal and formal. Informal voluntary hospitalization,⁴ which is rarely utilized, allows the individual to terminate the hospitalization and leave the hospital at any time during normal shift hours by informing hospital personnel of the decision.

Formal voluntary hospitalization⁵ occurs when an adult executes an application for hospitalization and is deemed by the hospital to be clinically suitable for that form of hospitalization. In a formal voluntary hospitalization, the individual must give the hospital a three-day written notice of the intent to terminate the hospitalization. This gives the hospital the opportunity to clinically evaluate the person to determine whether he or she meets the criteria for involuntary admission and to file the application. If the application is filed, the individual remains hospitalized pending the hearing. If not, he or she is discharged.

An application for formal voluntary hospitalization may be executed by a guardian if the individual "assents."⁶ Note that this term is undefined in the Mental Health Code.

Before discussing the specific duties of the attorney in the commitment process, it may be helpful to review the process itself. There are essentially two determinations that must be made before the involuntary civil commitment of an individual to a hospital. The first is that the individual is a "person requiring treatment." This term is defined as follows:

Without a finding that the respondent is a person requiring treatment, there is no basis for a court in Michigan to order the involuntary civil commitment of an adult for mental health treatment. No matter how beneficial the attorney may believe that a course of treatment would be for his or her client or how hopeful a family member may be that their loved one will finally receive treatment, involuntary civil commitment cannot be ordered.

The second determination that a court must make (if it is first determined that the respondent is a person requiring treatment) is that there is no alternative to hospitalization. Although the Mental Health Code is replete with references to the concept of alternative treatment, the term is undefined. However, it is generally understood that alternative treatment includes some combination of the various services that are available from a community mental health services program.

It could include, for example, placement in a group home, outpatient therapy services, medication management, or the services of what is known as an assertive community treatment program. The requirement that the court find that there is no alternative treatment to hospitalization for a person requiring treatment is as follows:

The initiation of civil commitment proceedings occurs either by certification or by petition. The certification process begins when an application is completed by any person 18 years of age or over who asserts that the respondent is an individual requiring treatment, alleges facts for that assertion, together with the names and addresses of any known witnesses to the alleged and relevant facts.⁹

The application must also state the name and address of the nearest relative or guardian of the respondent or, if not known, a friend.¹⁰ The application must have been executed not more than ten days before it was filed with the hospital that will ultimately accept the individual for hospitalization. This application must be accompanied by a clinical certificate that may be executed by any physician or licensed psychologist that has personally examined the respondent. The clinical certificate must be completed no more than 72 hours before the time is filed at the hospital.¹¹

The commitment by certification process continues when the application and clinical certificate are delivered to a peace officer. The peace officer who receives the documents may then take the named individual into protective custody and transport him or her immediately to the pre-admission screening unit or hospital designated by the local community mental health services program. If the pre-admission screening unit determines that the individual meets the requirements for hospitalization, the peace officer must take the individual to a hospital designated by the community mental health services program.¹²

The hospital that has taken a person into custody through an application of medical certification must arrange for an examination by a psychiatrist as soon as it is practical, but within no more than 24 hours, excluding legal holidays, after hospitalization.¹³ The examining psychiatrist may not be the same physician who executed the clinical certificate to form the basis for hospitalization of the individual. If this psychiatrist does certify that the individual is a person requiring treatment, the hearing process, described in more detail herein, is begun.

The admission by medical certification process can also be initiated when an individual who has agreed to be hospitalized under the formal voluntary procedure has withdrawn his or her consent to the formal voluntary hospitalization. The certification process can also be started by any peace officer who observes an individual conducting himself or herself in a manner that causes the peace officer to reasonably believe that he or she is a person requiring treatment.¹⁴

Under such circumstances, the peace officer may take the individual into protective custody and transport him or her to the pre-admission screening unit of the community mental health services program. If someone has executed an application for hospitalization of an individual and is unable, after reasonable effort, to secure an examination of the individual by a physician or licensed psychologist, the application may be presented to the local probate court.

If the court is convinced that the application is reasonable and is in full compliance with the requirements of the code and that a reasonable effort was made to secure an examination, the court may order the individual to be examined at a pre-admission screening unit. The court may also order a peace officer to take the individual into protective custody and transport him or her immediately to the pre-admission screening unit.

Civil commitment proceedings can also be started by petition. A petition may be executed or filed in the court by anyone 18 years or older.¹⁵ The petition must assert that the individual requires treatment, set forth the facts that form the basis of the assertion, together with the names and addresses of any witnesses to the fact, as well as the name and address of the nearest relative or guardian or friend of the respondent.¹⁶

The petition may be accompanied by one of two clinical certificates. If accompanied by two clinical certificates, at least one must have been executed by a psychiatrist. If no clinical certificates accompany the petition, there must be an affidavit setting forth why the petitioner cannot secure an examination.

If the petition is accompanied by one clinical certificate, the court must order the individual to be examined by a psychiatrist. If no clinical certificates accompany the petition, and the court is satisfied that a reasonable effort was made to secure an examination, the court may order the individual to be examined by a psychiatrist and either a physician or licensed psychologist.¹⁷

The individual named in the petition may be received and detained at a place of examination for the purposes of examination for not more than 24 hours. If one of the examiners has concluded that the individual does not require treatment, it is possible for the court to order a third examination. If the results of the third examination are that the individual does not require treatment, the court must dismiss the petition.

The filing of the petition with the court, the clinical certificate executed by a physician or licensed psychologist, and a clinical certificate executed by a psychiatrist begins the hearing process and, with it, the involvement of the attorney.

The court-appointed counsel’s involvement in civil commitment proceedings begins with appointment by the court. Generally speaking, counsel must be appointed within 24 hours after the involuntary hospitalization of an individual.¹⁸

The potential for a favorable outcome to the commitment process and the likelihood that the respondent will believe that he or she has been zealously represented is dependent, in large part, upon the interview and investigation that the attorney undertakes. The code specifically requires counsel to consult in person with his or her client at least 24 hours prior to the time set for the court hearing.

Since the initial court hearing must occur within seven days of the date in which the court receives the petition or application and certification documents, time frames are somewhat compressed. Therefore, it is imperative that an attorney appointed in a civil commitment proceeding take immediate steps to interview his or her client. This means going to the hospital where the client is confined to conduct the interview.

Since the interview is being conducted under less than favorable circumstances, it is important for the attorney to give considerable thought and attention to the mechanics of the interview. Interviews should take place, and hospitals should make available, a closed room where confidentiality can be preserved. The attorney should make clear to the client that he or she has ample time to speak with the client and to gather facts.

To make some assessment of the client’s condition and ability to clearly relate facts, the attorney should determine whether the client has been administered psychotropic medication. Psychotropic medication generally may not be administered before the court hearing without consent of the individual and may not be administered on the day of or the day proceeding a court hearing unless the individual consents. However, psychotropic medications may be forcibly administered if they are necessary to prevent physical injury to the individual or to others.¹⁹

After making appropriate arrangements for a client interview and determining that the client is in condition to participate in the interview, the attorney must discuss his or her role with respect to the client. Specifically, the attorney should advise the client of his or her rights to preferred counsel. It is not uncommon for some individuals to have been through the civil commitment process previously. In the event that the respondent has counsel with whom they have had a favorable experience, they have the right to preferred counsel, provided that that attorney is willing to represent him or her.²⁰

Assuming that the client wishes to use the services of the court-appointed counsel, the next step is to review the formal assertions of the petition or application and the certifications that have been completed. Close attention should be given to issues of factual allegations that are remote in time and statements by witnesses who are not competent under the rules of evidence to support the allegations.

Additionally, close scrutiny should be given to the medical evidence. Any statement from a medical professional that is submitted to support the petition or application should be considered a violation of client confidentiality unless the requirements of the code have been met. Those requirements are that privileged communications between a health care professional and an individual subject to civil commitment proceedings may be disclosed only if the individual was informed at the outset of the interview that any communication with the health care professional could be used as evidence in a civil commitment proceeding. Without affirmative evidence by the medical professional that communication between him or her and the respondent was preceded by such a warning, the statement should be considered to be privileged and thus not admissible.

Another matter to be explored in some depth with clients is whether there has been compliance with code requirements for the timely completion of certification, filing of documents, and so on. Typically, hospital charts of a client will contain legal documents that should be readily available in the hospital ward to the attorney conducting the interview. By reviewing those documents, the attorney can decide whether or not there has been compliance with the time requirements. If there has not, then the attorney should move for a dismissal of the petition at the outset of the hearing.

Assuming that the attorney can find no procedural defect that should result in the dismissal of a petition or application, and there appears to be a colorable claim that the client may be a person requiring treatment as that term is defined under the mental health code, the attorney should spend some time with the client in exploring alternatives to hospitalization.

Here, the client’s history and experience with the mental health system is critical. If the client has had a lengthy history with the public mental health system, they likely have an understanding of the services and supports that they find most beneficial and helpful. For example, a client may report that he or she is willing to accept outpatient therapy on a weekly basis and the services of what is known as an assertive community treatment team. Having ascertained what the client is willing to accept as an alternative to hospitalization, the attorney should be prepared to offer that to the court at the time of the hearing.

However, the attorney’s responsibility with respect to exploring alternatives to hospitalization does not end there. All too frequently, community mental health services programs, which are required to submit to the court a report of the availability of alternatives to hospitalization, simply indicate that there are no alternatives available. The code reserves to counsel adequate time to investigate matters at issue, including alternatives to hospitalization.²¹

Thus, the attorney who is representing a client who faces hospitalization, but who is willing to accept some alternative to that hospitalization, must develop his or her case for an alternative to hospitalization. Preparation should include a complete review of the client’s file at the community mental health services program and interviews with mental health professionals who have been providing treatment, including therapists, case managers, psychologists, and psychiatrists. If these interviews cannot be conducted by agreement with the prosecuting attorney, the court-appointed counsel must use depositions and other forms of discovery.

Another means of exploring the issue of alternatives to hospitalization, as well as contesting the conclusion that the client is a person requiring treatment, is by seeking the appointment of a physician or psychologist as an independent expert. This is a right guaranteed under the mental health code and must be paid for at public expense if the client is indigent.²² Attorneys should note that the request for an independent clinical evaluation must be made before the first scheduled hearing.²³

Attorneys who regularly represent clients in civil commitment proceedings should try to gain some sense of the medical community in which they are practicing and identify those psychiatrists and psychologists who will do a good job in evaluating clients subjected to civil commitment. Specifically, the attorneys should become aware of those psychiatrists and psychologists who have come to the hospitals, spend considerable time, and who give a thoughtful assessment both regarding whether the person truly requires treatment and whether alternatives to hospitalization should be available.

The attorney must also explore with his or her client the right to request a jury trial.²⁴ It is the right of the client to request a jury trial, which may, on occasion, be an effective way to secure the dismissal of the petition or application.

Finally, the attorney must explore with the client the possibility of a deferral. A deferral meeting must occur within 72 hours after the petition and clinical certificates have been filed with the court. The meeting is to be held between the attorney, the treatment team member from the hospital, a representative of the community mental health services program, and the client.

At the deferral meeting, a hospital representative is to present a proposed plan of treatment. The attorney should discuss the nature and possible consequences of commitment procedures. Alternatives to hospitalization should be discussed. The respondent has a right to request that the hearing be temporarily deferred. During the period of deferral, the respondent agrees to accept the plan of treatment in the hospital or in the community. This will be treated as a formal voluntary admission. If the individual chooses to later reject the treatment plan, a hearing will be scheduled.

A deferral of the hearing differs from two other options that are available to the client. An individual may waive his or her right to attend the hearing or he or she may stipulate to the petition. In either case, the entry of an order of involuntary treatment is almost inevitable.

Having interviewed the client thoroughly and arrived at a trial strategy, the attorney must then begin to implement the trial strategy. It should be noted, however, that many of the strategies discussed above (requesting a jury trial, requesting the appointment of an independent clinical examiner, and extending discovery to explore alternatives to hospitalization) can all result in a delay in the hearing, during which the client typically remains hospitalized. The attorney should review that reality with the client. The attorney should also note, however, that the hospital is under an obligation to discharge an individual who no longer meets the status of requiring treatment.

If the efforts of the attorney to defeat the petition or application are unsuccessful, the attorney has an obligation to advise his or her client on certain issues. For example, the attorney must advise the client of his or her right to seek an appeal and of the timelines for filing the appeal. There is no specific statute or court rule guarantee of the right to appointment of counsel to assist in the appeal. However, some probate courts do appoint counsel and it would seem that there may be an equal protection argument that respondents are entitled to the appointment of counsel.

Counsel should also advise his or her client of the impact of the hospitalization order in both practical and legal terms. For example, the question may arise regarding whether a hospital can forcibly administer electroconvulsive therapy (ECT) or shock treatment against the will of the hospitalized individual. While some probate courts have held otherwise, the Mental Health Code is clear that a competent adult may refuse ECT and that the order of commitment does not grant the hospital the right to forcibly administer ECT.

Counsel should also advise his or her client of the impact of the alternative treatment order, which is typically a component of the commitment order. A person subject to an alternative treatment order can be returned to a hospital if he or she fails to comply with it. Currently, there is no requirement that there is a hearing prior to probate court ordering the return of the individual to the hospital and the order directing the return of the individual occurs after an ex parte communication, typically from a community mental health services worker.

The role of the attorney in protecting and securing the liberty interests of a person subjected to a civil commitment proceeding is fundamental. Although there are many pressures on attorneys to give little consideration to the rights of their clients or to be less than zealous advocates, there are many tools at the disposal of attorneys that can and should be utilized.

Footnotes