Mental Health and the Justice System, Part 2
By Robert Lerman, JD, Attorney Supervisor Mesa/Phoenix at Office of the Public Advocate, Mental Health Division
Digital - November 2022
The Office of the Public Advocate (OPA) is the legal agency appointed by the Superior Court to represent individuals facing civil commitment proceedings in Maricopa County. A civil commitment is when someone in the community petitions an individual who is facing a mental health crisis to involuntarily submit to a mental health evaluation to possibly receive inpatient and/or outpatient court ordered treatment. This article will explain the basic legal process of a civil commitment case from the defense attorney perspective.
The legal requirements for initiating, filing, and litigating a civil commitment case are explained in Title 36 of the Arizona Revised Statutes. The timeline to litigate a civil commitment is quite short. The case begins when a person in the community, typically a family member, clinic case manager, police officer, or social worker from a hospital, submits a petition for Court Ordered Evaluation (COE) and the Court signs a detention order allowing for the involuntary evaluation. It is at this time an OPA attorney is appointed as defense counsel. An individual Is either transported directly to a local crisis center due to an emergent petition or they are picked up later to be transported there due to a non-emergent petition. There are four crisis centers in different sections of Maricopa County where clients may be taken for a COE. They must be evaluated within 72 hours of the filing of the COE, which is conducted by either a Nurse Practitioner or Psychiatrist. An evaluation is a determination by the crisis center whether an individual requires psychotropic medication and whether that individual is capable of being a voluntary patient. They are either released, remain at the crisis center as a voluntary patient, or they are deemed involuntary and then transported to one of the local Valleywise mental health hospitals to complete the 72-hour evaluation.
Once admitted as a patient to Valleywise, they are evaluated by two Psychiatrists who determine if a Petition for Court Ordered Treatment (COT) is necessary. If considered necessary, a COT Petition is filed, and the Court signs another detention order holding the patient in the hospital. It is at this time the Court sets a hearing for Court Ordered Treatment within 4 – 6 business days. A typical attorney caseload can be up to 15 cases at any given time. Title 36 also designates the minimal duties of defense counsel in preparation for the COT hearing. This includes explaining rights to the patient, reviewing the petitions, interview of physicians and witnesses, and review of medical records. Sometimes it becomes necessary to obtain records and/or speak with a private physician who may have treated the patient for their mental health while in the community. The cooperation of the physician and their office staff is appreciated since it assists with obtaining a comprehensive treatment history leading up to this point. This can make a difference in the Court’s determination of either voluntary or involuntary treatment of the patient.
On the day of the COT hearing, witnesses are called to testify, a patient may choose to testify, and the attorneys make their arguments to issue a COT or not. The Court then renders its decision if a patient is placed on COT for up to 365 days. If placed on COT, the patient is typically given both an inpatient/outpatient order allowing them to be treated in the hospital longer and then provided a designated clinic to engage in treatment once they are discharged.
After placed on COT, a patient has a right to apply for judicial review once every 60 days to ask the Court to terminate the COT before it expires. Additionally, a patient may also be subject to an annual review before the termination of the COT to determine whether the continuation of the COT is appropriate. The patient is also appointed an OPA attorney at both these stages.
Learn More About the Author:
Robert Lerman, JD, has been a practicing attorney since 1995 working 23 years for Maricopa County. He has been with the Office of the Public Advocate (Mental Health Division) for 11 years representing patients facing Civil Commitment Proceedings and is also one of the Supervisors for this Division in Mesa and Phoenix. Before that he worked for the Maricopa County Public Defender’s Office in a trial group and also in various Specialty Courts, which included Mental Health Court, Drug Court, and Probation Violation Court among others. Contact Mr. Lerman through the Office of the Public Advocate.