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March 15, 2018
Mental health in the courts panel eyes the Marchman and Baker acts

By Gary Blankenship
Senior Editor

With the 2018 Legislative Session going full bore, the members of the Bar’s Special Committee on Mental Health in the Courts were already gearing up for next year’s session as well as improving education for lawyers about mental health matters.

Judge Steve Leifman The committee, chaired by Miami-Dade County Judge Steve Leifman, spent much of its time at its gathering at the Bar’s Winter Meeting working on the Marchman Act and the Baker Act, which allow involuntary commitment, respectively, of people with substance abuse or mental health problems.

The committee’s goal is to have recommendations ready for the 2019 Legislative Session. Prospective incoming House Speaker Jose R. Oliva, R-Miami Lakes, and prospective incoming Senate President Bill Galvano, R-Bradenton, have expressed interest in making mental health issues a priority during their leadership terms.

The committee also looked at a series of CLE courses to educate lawyers about mental health and substance abuse matters, including how mental illness affects the criminal justice system and how it affects family, juvenile, and virtually every other court division.

“The goals are twofold. One is to do legislation that might help the systems of care as they might pertain to serious mental issues,” Leifman said after the meeting. “The other is to do a better job educating lawyers. The truth is serious mental health issues have crossed nearly every area of law, whether it’s probate, juvenile justice . . . even landlord tenant.

“It’s important for lawyers to understand these issues and respond to them better.”

Consequently, the committee is looking at CLE courses and other alternatives. Leifman noted bankruptcy attorney Paul Singerman recently wrote an article about six of his clients who committed suicide.

Quote “How do we put counselor back into the practice of law? How do we recognize the signs of serious mental illness and direct our clients into treatment if necessary?” he asked.

Leifman said it’s also vital to recognize the symptoms in other lawyers, who have a much higher rate than the general population of mental health issues (See story on page 1).

The judge co-chairs a national initiative for judges on psychiatric issues.

“We teach judges around the country using a psychiatrist and a judge on how to recognize signs of mental illness in their courtroom and how to access treatment for them, instead of ignoring it,” he said. “I think we need to do the same for lawyers,” including recognizing the symptoms in other lawyers.

“If someone was having chest pains, you would immediately dial 911. If someone has a brain illness, we look the other way, and it can cause more damage,” Leifman said.

Aside from education, the committee is looking at improving the Marchman and Baker acts. Among the committee’s recommendations approved at the January meeting for next year:

• Similar to the Baker Act, naming the state attorney “as the real party in interest” in Marchman Act cases. Sixth Circuit Public Defender Bob Dillinger said the change could create a funding and workload issue for state attorneys, and the final motion was contingent on that being addressed by lawmakers.

• Extending the time to schedule a treatment/service hearing in Marchman cases from five to 10 days, the same as the time to schedule an assessment hearing. The court has previously had 10 days to schedule both hearings, and committee members noted that even 10 days created problems in notifying all parties. The shorter time reduces the flexibility of courts in setting hearings, and the additional time will allow for more treatment.

• Eliminate slight differences in Marchman petition, admission, and treatment hearing statutes, including having uniform standards on waiving appearances and allowing for teleconference testimony. In some cases, if the evaluating doctor is not present, his or her testimony is considered hearsay, even if there is a written report, and a case is dismissed.

• Allowing the state attorney to seek a one-week continuance for a Baker Act hearing. Currently, the defendant can seek up to a four-week continuance, but the state attorney cannot seek any continuance, which can create difficulties in finding witnesses and issuing subpoenas. The committee discussed allowing continuances up to four weeks before settling on seven days.

• Exempting information about substance abuse and mental health cases, including names, of those committed under the Baker Act, from the public record.

• Conforming the Marchman Act petition and criteria for treatment, which currently do not match up.

• Allowing defense counsel access to treatment facilities, something currently not allowed by law.

• Reducing the number of hearings required under the Marchman Act to order a patient into treatment from four to two, similar to its predecessor Myers Act. That action includes recommending that if a patient had three prior adjudications for treatment, the assessment hearing could be skipped.

The committee discussed, but deferred action on several other recommendations. Those included returning the maximum time a person could be ordered for inpatient placement to six months after the Legislature reduced it to 90 days in 2016. Six months remains the maximum if the patient is ordered to a treatment facility. Committee members noted the shorter commitment time has led to an increase in court hearings, but Judge Leifman said there are no more civil beds for these commitments because the state had allocated them for criminal forensic examinations.

The committee also postponed acting on removing the option for judges to appoint guardian advocates (who are required in hearings where a patient has been found to be injurious to him or herself) in cases where the patient may be incompetent to consent to medical treatment. Committee members said some courts have frequently made such appointments, and there is no money appropriated for it, so it reduces funds for treatment. Committee members said they want to get more information about the practice statewide before acting.

The committee is also looking into the suddenly high-profile issue of firearm possession by people with mental health issues. Committee members noted that people involuntarily committed under the Baker Act go on a federal list that prevents them from buying guns. But only 1 to 2 percent of Baker Act commitments are involuntary, and those who agree to a commitment under the act retain the right to buy guns. Furthermore, there is no procedure for dealing with guns already owned by people who are involuntarily committed. Committee members discussed alternatives and then tabled the matter.

[Revised: 03-23-2018]