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The Florida Bar Journal
April, 2018 Volume 92, No. 4
Mental Health: The Issue of Our Time

by Michael J. Higer

Page 4



I thank Judge Steve Leifman, co-chair of the Special Committee on Mental Health in the Courts and chair of the Florida Supreme Court Task Force on Substance Abuse and Mental Health Issues in the Court, for his assistance in drafting this column and spotlighting this important issue for our members.

Judge Steve Leifman — a leader not just in our state but in our country — on the issues of our mental health system joins me in writing this column.

Whether it is criminal, civil, family, juvenile, probate, or any other area of law, a common thread that runs through the legal community is the impact of mental illnesses on individuals, families, and communities. Mental health issues touch every facet of our personal and professional lives from the clients we serve; to the lawyers, judges, and colleagues we depend on to provide effective assistance of counsel; to our friends and our family members.

Every year, more than two million people with serious mental illnesses are arrested and booked into jails in the United States. On any given day, there are roughly 550,000 individuals with mental illnesses housed in local, state, and federal correctional facilities and another 900,000 under correctional control in the community.

Up to 80 percent of the nearly half million children in foster care experience significant mental health issues; yet just 23 percent of those who are in foster care for at least 12 months receive any mental-health services.

Between 60 and 90 percent of women who experience domestic violence have significant mental-health issues, and the harm is not limited to victims of physical abuse. At least 3.3 million children witness parental domestic violence annually, leading to both immediate and long-term social, emotional, and behavioral problems.

During the economic downturn from 2005 and 2010, the proportion of completed suicides committed by individuals experiencing employment, financial, and legal difficulties increased from 32.9 to 37.5 percent. Presumably, many of these individuals had active relationships with attorneys at the time of their deaths.

Among the legal profession, the occurrence of mental illnesses and other behavioral health disorders is particularly acute. A 1990 study by Johns Hopkins University of more than 100 occupations found that lawyers experienced depression at a rate 3.6 times that of other professions. In 2016, the American Bar Association Commission on Lawyer Assistance Programs published a study of nearly 13,000 practicing lawyers. It found that between 21 and 36 percent qualified as problem drinkers, and that approximately 28 percent, 19 percent, and 23 percent, respectively, were struggling with some level of depression, anxiety, and stress.

The Florida Bar’s own data raises similar concerns. In 2015, a membership survey found that 33 percent of Florida lawyers saw high stress as a significant challenge while 32 percent of respondents said balancing work and family life was a significant challenge.

Clearly, mental health and untreated mental illnesses present significant practice challenges for all aspects of the legal system, and for our colleagues, friends, and families. Recent events, including the horrific massacre in Parkland, have amplified the call for more appropriate and responsive approaches to identifying and responding to individuals in need of mental health care. Included in this call to action is the need to better prepare and equip members of the community to recognize signs of potential psychiatric distress and, when appropriate, to take action.

To this end, The Florida Bar created two special committees on mental health. One is focusing on the health and wellness of lawyers, which I have written about before. The other is a 13-member panel developing recommendations for improvements to Florida’s mental-health treatment system, including examining existing mental health laws and civil commitment standards, as well as making recommendations to improve training and education provided to lawyers, judges, and others who work in the justice system.

The Florida Mental Health Act, commonly known as the Baker Act, was enacted in 1971; however, the underlying commitment criteria has its foundations in mid-18th century English law that is predicated on a very narrow definition of imminent danger to self or others. At the time, the Baker Act was drafted, the mental-health system was under intense scrutiny for being overly coercive and abusive. The circumstances that exist today are much different, and our policies and laws should reflect the contemporary landscape of science and the community. Statutes based on dangerousness-related criteria should be retained, but adding criteria to address need for treatment would permit intervention before tragedy becomes imminent.

As part of its work, the committee is actively exploring changes to the Baker Act that will hopefully balance individual liberty and due process considerations with evidence-based approaches to public health and safety.

In addition to legislative changes, the committee is also developing recommendations to redesign approaches to legal education so that lawyers, judges, and others in the justice system are knowledgeable about best practices and ABA standards when interacting with clients or other parties with mental illnesses. Mental illnesses and other behavioral health disorders underlie or influence a substantial percentage of cases across the justice system, yet only a small percentage of attorneys and judges receive any education or training on these subjects. At the very least, it is critical that judges and lawyers are provided with basic knowledge regarding mental illnesses, the mental-health system, and available resources in the community so that they are prepared to make informed decisions when mental-health concerns or issues arise. In addition, a better educated workforce within the justice system will contribute to more effective collaboration with the mental-health system and other community stakeholders.

This special committee on mental health is scheduled to conclude its work with a report and proposed set of recommendations to be presented to The Florida Bar Board of Governors at its May 2019 meeting. At the conclusion of its work, the committee will have completed a comprehensive examination of how we address mental-health issues in the justice system, including what works and what needs improvement. I know the road is a long one, and there will be no easy answers or quick solutions, but the Bar remains committed to diligently and passionately making a difference and positive impact in our justice system as to mental-health issues.


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[Revised: 03-27-2018]