The Law and Landmark Cases

“Our ideas about institutionalizing the aged, psychotic, retarded, and infirm are based on a pattern of thought that we might call the Toilet Assumption – the notion that unwanted matter, unwanted difficulties, unwanted complexities and obstacles will disappear if they are removed from our immediate field of vision . . . We throw the aged and psychotic into institutional holes where they cannot be seen.  Our approach to social problems is to decrease their visibility:  out of sight, out of mind . . . The result of our social efforts has been to remove the underlying problems of our society farther and farther from daily experience and daily consciousness, and hence to decrease, in the mass of the population, the knowledge, skill, resources, and motivation necessary to deal with them.”  –Philip Slater

This powerful quotation was the forward by Janet Marshall Wilson, Director Patients’ Rights, MHCC.


6 thoughts on “The Law and Landmark Cases

  1. MHCC says:

    Doe vs. Gallinot, C.A.9 (Cal.) 1981, 657 F.2d 1017

    “John Doe” had driven to a Los Angeles hospital parking lot, very angry because his girlfriend was admitted inside. He had an apartment with the rent paid, had food at home, and had plenty of clothes. Hospital security notified police [Gary Gallinot] who placed him on a §5150 or application for an emergency hold for psychiatric detention [up to 72 hours] on the grounds of “grave disability,” or the inability to provide food, clothing or shelter due to a mental disorder. John Doe was taken to an evaluation unit and transferred to a state hospital, where his §5150 was extended to a §5250 or certification for up to 14 days of intensive psychiatric treatment. He filed suit in federal court which resulted in the decision that due process requires an automatic administrative review of every 14-day certification, because the mere right to file a writ of habeas corpus is not adequate when the patient may not be advised of it and may be on powerful mind-altering psychotropic drugs. California Assemblyman Tom Bates codified Doe vs. Gallinot into state law in the Welfare & Institutions Code §§5250 et seq. The “Gallinot” [or certification review or probable cause] hearings are held at the hospital, and the patient is represented by an advocate or attorney before an administrative hearing officer, within strict timeframes. The burden of proof is on the facility to uphold the commitment, and the standard of proof is probable cause.

    Prepared By Janet Marshall Wilson, J.D.
    MHCC Director of Patients’ Rights & Advocacy

    • Cyndie says:

      Janet – – great information! Now I have a better understanding of Gallinot / Riese Hearings. Thank you for the posts.

  2. MHCC says:

    Riese vs. St. Mary’s Hospital and Medical Center (App. 1 Dist. 1987) 271 Cal. Rptr. 199

    Eleanor Riese was a patient who had suffered extreme kidney damage from the psychotropic drug Mellaril. When Mellaril was again prescribed for her during her involuntary stay at St. Mary’s Hospital, she objected. She was willing to take another psychotropic medication which would not affect her kidneys, but the facility forced Mellaril on her. A San Francisco Patients’ Rights Advocate, Jean Matulis, identified Eleanor Riese as a plaintiff, and attorneys Colette Hughes of Protection and Advocacy [now Disability Rights California] and Mort Cohen of Golden Gate Law School filed suit. On appeal, it was held in federal court that psychiatric patients on short-term holds [5150, 5250, 5260 and 5270.15J have the right to informed consent to psychotropic medications, that [after a conversation with the treating psychiatrist] they cannot be forced to take medication absent emergency circumstances [narrowly defined] or an administrative hearing, if they are refusing, after a petition has been served and filed. Riese vs. St. Mary’s Hospital and Medical Center is codified in Welfare & Institutions Code §§5332 et seq. Again, the burden of proof is on the facility and the standard of proof is higher than at Gallinot hearings: clear and convincing evidence, because of the severe intrusion to the body and mind of psychotropic medications. The petition must be specific enough [in terms of diagnosis and recommended psychotropic drug] to provide enough notice to prepare for the advocate and the patient. If not, the petition is void for vagueness. Long-acting decanoates [such as Haldol or Prolixin injections, for example, or Risperdal consta] are not allowable drugs for the petition because they remain in the bodily system past the timeframe of the hold. Thus, appeal is moot.

    Riese or capacity hearings are also held on the unit and appeal by either side is to Superior Court. This is called a “de novo review,” distinguishable from a writ of habeas corpus. If lab work is required to monitor a psychotropic drug, and the patient is found to lack capacity to give informed consent, then lab orders are legal.

    Prepared By Janet Marshall Wilson, J.D.
    MHCC Director of Patients’ Rights & Advocacy

  3. MHCC says:

    In re Roger 5., a minor, on Habeas Corpus (1977) 19 Cal.3d 921

    Roger S, a 14-year oId minor, sought release from Napa State Hospital to which he was admitted on May 10, 1976, on application by his mother made pursuant to Welfare & Institutions Code §6000. He was, at Napa State Hospital, diagnosed with “latent schizophrenia” for which he received an antipsychotic drug. Roger S. denied that he is psychotic, that he suffered from a latent form of schizophrenia, or that he had threatened to harm himself or others. In fact, at Gladman Memorial Hospital [a psychiatric facility] in Oakland, a physician concluded that he was “clearly not psychotic,” while a psychologist concluded that he was not only not psychotic, but was “a vulnerable youngster who has most of his energy focused on his own self protection.” Two other physicians from the same facility recommended that Roger S. not be .confined by a placement such as that at a juvenile hall since he “cannot tolerate physical restraint and needs space.”

    Notwithstanding these conflicting diagnoses, Roger was admitted to Napa State Hospital where he was allegedly confined in a complex which had barred windows and locked doors, in an open ward with 40 other minors, some of whom were so severely disturbed that they were unable to dress themselves. He alleged that he was approached sexually by other boys whose advances he repelled, and he feared further such advances. During his hospitalization, two other minors attempted suicide. Further case law has established sexual abuse by staff of minors on the Children’s Unit at NSH.

    The California Supreme Court found that in light of the drastic invasion of the minor’s right to personal liberty and the potential damage that may accompany an erroneous diagnosis and placement of a minor child in a mental hospital, the basic fairness requirements of due process required a precommitment hearing [administrative rather than judicial], with counsel present and the opportunity to discover and propose alternative treatment programs.

    The court recognized that minors under parental custody have less due process rights in a case such as this than wards of the court under §65S2. Parental right to “bring up children” is subject to limitation only “if it appears that parental decisions will jeopardize the health or safety of the child, or have a potential for significant social burdens.” Detention of Roger in a state hospital is “state action,” and the state, albeit at the behest of Roger’s mother, is therefore a significant participant in depriving Roger of the greater personal liberty which he would have outside the hospital. The US Supreme Court had recognized justification on limiting parental authority when hospitalization might well “jeopardize the health and safety of the child, or have a potential for significant social burdens.”

    Due process forbids the arbitrary deprivation of liberty. The court decided on a procedure that will ensure the child a fair opportunity to establish that [1] he is not mentally ill, or that [2] even if he is, confinement in a state mental hospital is unnecessary to protect him or others and might harm rather than improve his condition.

    Prepared By Janet Marshall Wilson, J.D.
    MHCC Director of Patients’ Rights & Advocacy

  4. MHCC says:

    Olmstead vs. L.C and EW. (1999) 527 U.s. 581, 119 S.Ct 2176

    Two women with mental disabilities were held in a Georgia state psychiatric hospital after the hospital’s own treatment professionals had recommended their transfer to community care. Lois Curtis, 31, and Elaine Wilson, 47, have mental disabilities. Each was hospitalized repeatedly over two decades, with periodic discharges to inappropriate settings [including a homeless shelter] followed by a return to the hospital. Only after Atlanta Legal Aid attorney Susan Jamieson brought a lawsuit in 1995 were they moved to a small group home.

    The lower courts had ruled that the state violated the Americans with Disabilities Act “integration mandate, “which requires public agencies “to provide services in the most integrated setting appropriate to the needs of qualified individuals with disabilities.”

    Georgia appealed, claiming the ruling could lead to the closing of all state hospitals and disruption of state funding of services to people with mental disabilities. However, the women were supported by a number of states, disability organizations, and others, including the U.S. solicitor general, who said, “The unjustified segregation of people institutions, when community placement is appropriate, constitutes a form of discrimination prohibited by Title II [of the ADA], and the U.S. Supreme Court overturned the state of Georgia.

    The Olmstead decision construed Title II of the Americans with Disabilities Act [ADA] to require states to place qualified individuals with mental disabilities in community settings, rather than in institutions, whenever treatment professionals determine that such placement is appropriate, the affected persons do not oppose such placement, and the state can reasonably accommodate the placement, taking into account the resources available to the state and the needs of others with disabilities. The U.S. Supreme Court stated that “institutional placements of people with disabilities who can live in, and benefit from, community settings perpetuates the unwarranted assumptions that persons so isolated are incapable or unworthy of participating I community life,” and “confinement in an institution severely diminishes everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment”

    Two statements of local politicians: [1] Ron Dellums [D-California] during the final passage of the ADA in the House of Representatives: “I have seen these institutions. The smell of human waste and detergent has stuck in my throat I have looked into the vegetative eyes of its inmates in their sterile environments, I have heard of the premature death ratio and prevalence of pneumonia and necrotic decubitus, literally allowing them to rot in their beds; these living dead, our imprisoned Americans with disabilities.” [2] George Miller [D-California] said in a Congressional debate on the bill that society made disabled people “invisible by shutting them away in segregated facilities.”

    Prepared By Janet Marshall Wilson, J.D.
    MHCC Director of Patients’ Rights & Advocacy

  5. MHCC says:

    Edward W. vs. Lamkins (2002) 122 Cal.Rptr.2d 1

    Edward W. was a patient in a Solano County psychiatric health facility. This was Edward W.’s third admission that year. There was a poor joke in Solano County that a third admit might carry a “third strike penalty” [conservatorship and all of the loss of rights which go along with that]. The 14 days of his 5250 came to an end, and his discharge plans were to return to his licensed board and care facility. His psychologist at the facility told Edward on the day (le was to be discharged, “Congratulations! Good work! Glad to hear that you will be going home and best of luck to you.” Also, the other residents had a farewell party for him. In short, Edward believed he was leaving.

    However, when the mail came, he was given a notice from the Public Guardian, signed by the judge, that he had been placed on a Temporary Conservatorship [Welfare & Institutions Code §5353]. He was then transferred to a long-term locked facility.

    Edward, in addition, had been compliant with his medication. An issue arose with the psychiatrist, the treatment team at the county outpatient clinic, the psychiatric health facility, and the long-term facility about his refusal to consent to Prolixin injections. However, he agreed to take and did take Prolixin in oral form. This factor seemed to have been one of the root causes of the Public Guardian’s decision to pursue the Temporary Conservatorship.

    A MHCC Solano County Patients’ Rights Advocate identified Edward W. as a plaintiff for attorneys Michael Stortz [now with Disability Rights California] and Mort Cohen [Golden Gate University] and became Edward W.’s guardian ad litem. Edward W. sued Gail Lamkins, the Public Guardian of Solano County, and in the discovery process it was found that in more than 600 cases, her office had never given notice to the patient that a Temporary Conservatorship was proposed. This case was never codified into statute and its implementation varies widely by county. The case requires 5 days written notice of intent to file for a Temporary Conservatorship and the opportunity for the patient to be “heard” in the manner specified in the notice [possibly submit objections to the ex parte application, possibly obtain a pre-establishment hearing and/or file a writ of habeas corpus].

    The Welfare and Institutions Code does not expressly describe the requirements for notice to a prospective LPS conservatee. In Edward W. vs. Lamkins, the California Appellate Court applied the advance notice provision under the Probate Code to proposed temporary LPS conservatorships noting that ” … with specified exceptions, the procedure for establishing conservatorship under the Welfare and Institutions Code is the same as that provided in Division 4 of the Probate Code. The applicable Probate Code provision states: “unless the court for good cause otherwise orders, not less than five days before the appointment of the temporary conservator, notice of the proposed appointment shall be personally delivered to the proposed conservatee.”

    “Good cause” for shortening or dispensing with statutorily prescribed notice requires an individualized showing of exigent circumstances such that notice cannot be provided in a given case.

    Since a conservator has the power to require detention of a temporary conservatee in a facility providing intensive treatment or in a facility specified in Welfare & Institutions Code §5358, “the appointment of a temporary conservator affects the conservatee’s interest in personal autonomy as well as in liberty.”

    Prepared By Janet Marshall Wilson, J.D.
    MHCC Director of Patients’ Rights & Advocacy

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