revoking doctor’s authorization / missouri’s mental health law governing involuntary commitment to a mental health facility & appointment of a guardian and conservator

I’ll preface this column by saying that you don’t have to use a doctor you don’t like.  If you do change doctors, be certain you revoke the previous doctor and clinic’s authorization  to discuss your treatment.  I revoked my authorization for this clinic and received acknowledgement from the management. If a clinic or any employee of the clinic, currently employed there or not, discusses a patient’s treatment with anyone (including family members) after their authorization was revoked, that’s grounds for a lawsuit.  Anyone who received an illegal communication regarding that treatment could be required to testify.

We want to believe that physicians adhere to high ethical standards—but without pointing fingers,  the reality is some are unscrupulous and incompetent.  If the doctor is employed by a clinic, the clinic should have procedures in place to safeguard patients from doctor misconduct.  Depending upon the infraction, doctors can have their license to practice medicine suspended or revoked.

It’s illegal for a doctor to develop a “new” diagnosis in which a former patient last seen years ago is claimed to be currently dangerous, and then use that “new” diagnosis against the patient in a legal proceeding.  That’s not medicine, it’s fraud.  It would effectively curtail a patient’s right to choose their own doctor and allow former doctors to interfere with the patient’s present doctor and treatment.

Don’t let anyone con you into thinking that having a mental illness means you give up your civil rights.  You have enough problems—understand the law in your area, if necessary get an attorney, and don’t engage in behavior that might create more difficulties for you.  As you’ll see in what follows, you really have work at it to wind up in a jam.

I’ve discussed this before, and I know it’s disturbing to those coping with mental illness. But the issue impacts everyone from the homeless to celebrities.  This column reviews Missouri’s guidelines for involuntary commitment to a mental health facility, and the law regarding appointment of a guardian and/or conservator. Guidelines in other states may vary.  Understand the law in your jurisdiction.

Under Missouri law, if a person presents a danger of imminent harm to himself or others, that person can be involuntarily committed to a psychiatric facility.  Usually the police are involved.  The initial hold can be up to 96 hours with a judge’s approval. Should circumstances warrant, the hold can be extended to 21 days, 90 days, or 1 year, IF this standard is met:

The criteria that a person must be mentally disordered and, as a result, present harm to self or others includes a standard that a person may be harmful if, as a result or an impairment, he or she is unable to make decisions regarding hospitalization or treatment as evidenced by not providing for basic necessities of food, clothing, shelter, safety, or medical care.  Presenting harm to self or others doesn’t have to be an actual attempt at suicide or homicide—threats of suicide or homicide suffice.  An individual’s past behavior, if it resulted in harm, may also be considered when determining how long the hold will be.

Valerie Hughes Stalcup, Missouri’s New Mental Health Act: The Problems With Progress, 1979 Washington University Law Review 209 (1979).

In Missouri:

“The state may involuntarily commit for treatment a mentally ill person who, as a result of his mental illness, presents a likelihood of serious physical harm to himself or others. Likelihood of serious physical harm to oneself, under the code, requires a showing of a ‘substantial risk’ that physical harm will be self-inflicted as evidenced by ‘recent threats or attempts to commit suicide or inflict physical harm on himself, or by failure or inability to provide for his essential human needs.’ Likelihood of serious harm to others, on the other hand, must be evidenced by ‘recent overt acts’ that placed another in ‘reasonable fear of sustaining such harm.'”

Overt means “observable.”  Stalking someone you have threatened to harm is an example of an “overt act.”

Note that the law requires the likelihood of harm to oneself or others must be “recent.” The law seeks to protect the public but prevents concocting a case against the mentally ill.

However, under Missouri law:

“Persons who are mentally retarded, developmentally disabled, senile or impaired by alcoholism or drug abuse, shall not be committed judicially … unless they are also mentally ill and as a result present likelihood of serious physical harm to themselves or others.”

Every doctor, nurse, social worker—any professional in Missouri who works in the field of mental health—is briefed on this law.  Every attorney who practices family and probate law in Missouri understands this law.

So is everything on the level in Missouri?  Not exactly.

As the case of Garner v. Missouri Department Of Mental Health shows (US Court of Appeals, Eighth Circuit No. 04-3013/13 Mar 2006), there has been corruption in the mental health system.  In June 2000, two social workers at The Western Missouri Mental Health Center, a facility operated by the state, accused drug counselor Brenda F. Garner of taking money from a patient’s Social Security check.  Garner was suspended with pay. The head of the center ordered an investigation which revealed that “Garner and other employees had received gifts and bought items from patients, both violations of Center rules.”  Garner was fired, but subsequently sued the center for racial discrimination because the white employees weren’t fired as well.  The case dragged on into Mar 2006.

The potential exists to suborn clinic staff and government officials in Missouri’s mental health system.  Patients are often confused, vulnerable, and unaware of their legal rights.  Advocacy organizations like NAMI stress cooperation with mental health professionals and lawmakers to improve conditions for the mentally ill and are reluctant to antagonize those they want as allies.  One wants to believe impropriety is rare. Nonetheless, corruption can occur.

Although there has been much progress in recent decades, those with serious mental illness still struggle with social stigma.  Some mental health professionals tell patients with Bi-Polar Disorder or Schizophrenia that if questioned about their illness to say they have Clinical Depression, because it is so common and carries less stigma.  Anti-depressants like Prozac are the most commonly prescribed drugs of any type.

SO—sometimes involuntary commitment to a psychiatric facility leads to a guardian and conservator being appointed for those adjudged mentally incompetent under the law.

What’s that all about?

According to “Guardians And Conservators Under Missouri Law Revised 1/14,” a publication of The Missouri Bar:

“A guardian is a person who has been appointed by a court (usually the probate division of the circuit court) to have the care and custody of a minor or of an adult who has been legally determined to be incapacitated.

“A conservator is a person or corporation, such as a bank or trust company, appointed by a court (again, usually the probate division of the circuit court) to manage the property of a minor or of an adult person who has been legally determined to be disabled.”

How is someone determined to be incapacitated or disabled?

“As defined by Missouri law, ‘an incapacitated person is one who is unable by reason of any physical or mental condition to receive and evaluate information or to communicate decisions to such an extent that he [or she] lacks capacity to meet essential requirements for food, clothing, shelter, safety or other care such that serious physical injury, illness, or disease is likely to occur.’  Similarly, a disabled person is one who ‘is unable by reason of any physical or mental condition to receive and evaluate information or to communicate decisions to such an extent that the person lacks ability to manage his [or her] financial resources.'”

As is evident, the terms “incapacitated” and “disabled” as used here have specific legal meanings in context of this law.  The key here is that the individual “is unable by reason of any physical or mental condition to receive and evaluate information or to communicate decisions.”

Let’s say you’re at an intersection where a cop is directing traffic.  You’re mentally ill and cannot understand the cop’s direction to wait until it’s safe to cross the intersection, so you walk out into traffic.  You may be “incapacitated.”

You have $5,000.00 in the bank, and you give it all to someone who claims they’ll invest it with Space Aliens and in 3 days you’ll receive a Million dollars by teleportation.  You may be “disabled.”

Petitions to appoint a guardian and/or conservator are filed in the probate division of the circuit court in the county in which the minor or alleged incapacitated or disabled person (the “respondent”) resides.  If the “respondent” lives in Greene County, then the petition must be filed in Greene County, even if the proposed guardian/and or conservator live elsewhere.  Both parties must be represented by attorneys.

As is evident under the law, you’ve got to be really out of it to be remanded to a psychiatric facility, or have a guardian/and or conservator appointed for you.  There must be a hearing, and the burden is on the petitioner to show that the “‘respondent” cannot meet these very basic requirements to maintain life or cannot handle their money because of “any physical or mental condition.” You could walk out into traffic because you were preoccupied, and you could lose a lot of money in a bad investment—but if it wasn’t due to “any physical or mental condition,” the court will not appoint a guardian/and or conservator. The bar is set very high to prevent the law being abused by those who just want to get control over someone’s money—and it happens.

Having religious views out of the ordinary isn’t evidence of being “incapacitated” or “disabled.”  The issue isn’t your religion—it’s if you can take care of your physical needs and handle your money.  Having words with a store clerk isn’t evidence of being “incapacitated” or “disabled.”  An occasional lapse of memory isn’t evidence of being “incapacitated” or “disabled.”  You don’t have to be perfect—if the petitioner has no evidence showing you can’t take care of yourself, there will be no hearing.  The law doesn’t permit yanking someone off the street and making them prove they’re “sane.”

~ by Jeffrey Thomas Chipman on August 21, 2014.

 
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