Hawaii residents with mental illness so severe and persistent that they do not even realize they need help may be instructed by a judge to seek outpatient treatment.
But since Hawaii Revision of the law on the treatment of assisted community As of July 2019, only one person received judicial assistance, according to the Institute for Human Services, a service provider that has filed requests for treatment of individuals.
Defense attorneys, the attorneys who represent mentally ill clients facing ACT petitions, are working to shut down the case at every turn.
“If I don’t get consent, I have to object, litigate, and fight for anything,” said Taryn Tomasa, a public defender who has represented several ACT clients. “And all for something that is really about implementing social services.”
As attorneys, defenders are legally and ethically obliged to zealously pursue the interests of their clients. That is, if clients refuse treatment, their lawyers must defend their right to make that decision – even if it is at the client’s expense.
“It’s a real puzzle,” said Connie Mitchell, IHS executive director. “I understand your legal responsibility. But I feel like I have a moral responsibility. ”
ACT is designed to help people with extreme challenges, Mitchell said. A new client is so mentally impaired and unable to take care of themselves that maggots eat open wounds. And yet he still doesn’t realize he’s sick, Mitchell said.
There are clients who lose limbs from self-neglect. Some wander the streets naked or go into traffic. Many suffer from addiction to substances such as meth, which can cause severe brain damage.
“You are just unable to make decisions for yourself,” she said.
Since the Reconfiguration of the Community Treatment Act in 2019, IHS has identified over 70 potential candidates, but only two cases have been brought to justice. The nonprofit managed to get one that’s now being challenged by the public defender’s office and lose the other, Mitchell said.
State lawmakers are considering changing the law to exclude public defenders from the trial. By Senate Act 199 and his companion, House bill 345The public defender would be replaced with a Guardian Ad Litem, a court-appointed representative who works for the client’s best – even if it’s not what clients say they want it to be.
Mitchell hopes the change will result in more people receiving help. The bills are supported by others in the behavioral health arena, including the Huli Au Ola Area Health Education Center on Maui and the Hawaii Substance Abuse Coalition.
Without public defenders acting as “obstructionists,” Tomasa said the process would be streamlined.
However, some individuals and organizations are concerned about the idea of losing a person’s right to legal representation.
“Just because the defense attorney makes it impractical to represent his client is not a good reason to expel him from the process,” said Louis Erteschik, executive director of the Hawaii Disability Rights Center, in a written testimony. “They do their job and represent their customers.”
The Hawaii Department of Health has also raised concerns.
“We continue to strive for a balance with people suffering from acute mental illness, where they can be treated at a time when they are ‘unconscious’ in all respects, but still ensure their right to self-determination and representation during the procedure is guaranteed to be honored, ”the department wrote on the testimony. “As written, we do not believe that this measure will achieve this balance.”
The Attorney General believes that the removal of the public defense attorney could deprive clients of procedural rights under the US Constitution, according to the Attorney General’s office.
The public defense office disagrees. People are entitled to counseling when they are threatened with detention or imprisonment. However, this does not include involuntary outpatient treatment, as the Public Defender’s Office noted on a written testimony.
“The ACT process and individual best interests are best served by the appointment of a Guardian Ad Litem to advise the court on whether ACT is in the best interests of the mentally ill person,” the office explains .
The public defender’s office said it would continue to crack down on social service providers and family members who try to help their clients without consent.
For some, treatment doesn’t come quickly enough
ACT petitions are a last resort for service providers, Mitchell said. IHS would rather have a person’s family step in as a guardian to make smart decisions and sign the paperwork required for government benefits.
Since IHS launched a city-funded outreach program to track down ACT cases, IHS has filed or is about to submit 14 petitions, Mitchell said. S.ix was dealt with under the ACT process through a “written order” which means that they eventually agreed to it. Instead, half a dozen people were compared to legal guardians.
ACT petitions are burdensome and involve a lot of paperwork, Mitchell said.
The petitioner is required to use medical histories – including criminal cases and hospital records – to demonstrate that he has been diagnosed with a mental illness and that he would benefit from treatment.
Almost immediately after filing in court, IHS will face a motion to dismiss the public defender, she said.
The cases can last so long that customers continue to deteriorate while IHS follows up on their case, Mitchell said. Some have lost brain function, according to Mitchell, others have suffered medical problems, or have suffered additional trauma from living on the street.
“Some people died before we could even petition,” she said. “Some people ended up in the hospital. One person was run over. She was hit by a car. ”
For the only court order IHS could get, the man had been homeless “many, many years” struggling with schizophrenia and methane addiction, Mitchell said. It took a year, she said.
He is still homeless and lives in and out of IHS’s shelter. But he’s now got medical care and his finances are controlled by a representative so he can’t spend any more money on meth, Mitchell said.
“He was a very different person after he got the medication,” she said. “Before you could even have a conversation with him. He just wasn’t there. Now at least you can talk to him. ”
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