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November 2021Volume 8Number 1PDF icon PDF version (for best printing)

Issues in Defending Mental Health Court Clients

I have been practicing in mental health court for 11 months. In that time, there are a few issues that I have found that appear to be unique to mental health court, or at least that I did not come across while practicing in other areas of the law. It should be noted that for 10 of my 11 months, I have been working with the added difficulties that COVID has brought to all of us, and so, I will only be discussing issues that I believe will continue after we return to post COVID work.

The first issue is the pace of the mental health court process. It is much faster than other areas of law. In other practice areas, you may have a case for years before considering going to trial. You would have had full discovery, multiple depositions, and dispositive motions before ever considering taking a civil case to trial. This is not possible in mental health court. This is understandable. In many cases, the respondent needs medical treatment which may be time-sensitive and years-long pre-trial proceedings may impair the client’s prognosis. Additionally, I presume that if each case required a typical pre-trial process, the medical system would become overburdened by the number of people being held inpatient waiting to have their medication petition heard. Moreover, extended pre-trial process could potentially be used coercively to pressure a respondent. Because of this, trials are often held within a few days of filing of an initial pleading. This often leads to attorneys on all sides entering a trial without a full and complete picture of the facts or law of the case. It is not exclusive to any one party, nor is it a regular occurrence, but it seems more prevalent than in other areas of the law. In a typical civil matter, by the time you get to trial the parties have made most of their legal arguments in their dispositive motions, and the facts of the case would be fully flushed out by written and oral discovery. The burdens on the pace of mental health court seem to be a necessary and unavoidable issue that is inherent to the practice.

Another issue that seems to be unique to representing respondents in mental health court is that, at times, it is exceeding difficult to build a report with my clients. Many of the clients I have had are experiencing paranoia or another presentation of mental illness that makes developing trust with them difficult. This issue is compounded by the issue discussed in the previous paragraph. Given the time constraints inherent in mental health court, I only have a limited amount of time to get my client to trust me and open up to me so that they may be an active participant in the litigation. I have been told by colleagues that this is difficult at the best of times, and during the age of COVID it is even more difficult. Due to restrictions, I have been meeting with clients primarily via computer-based communication platforms like Zoom. This adds a layer of technical issues to our communication that would not normally be there, but I imagine it also makes me seem other or strange to my clients. When seeing a client in person it is easier for a client to see my humanity, that I take the time to visit them because I care about their case. This is not to say that building a report with my clients is impossible. It has just been more difficult than what I have experienced in other practice areas.

Finally, working in mental health court has further highlighted the importance of the role of an attorney as a counselor. One of the functions of an attorney is to provide knowledge comfort to their clients. Most people who need a lawyer are having a bad day, to put it lightly. They may be accused of a crime, or been injured in an accident, or are being sued. It is our job, as attorneys, to guide our clients through that ordeal and obtain the best result for them under the law. As every lawyer knows, in some cases, even with the best representation that one can provide, the chance of success is low. This occurs often while representing respondents in mental health court. In my experience, my clients in mental health court have a greater amount fear regarding negative outcomes to their case than my prior clients in civil cases. In other areas of the law, potential negative outcomes are not as scary a prospect because there is an immediate out. In a civil case you can settle, in a criminal case you can take a plea. In mental health court, there is not always an immediate out. If the doctor believes that the respondent lacks capacity, the respondent may not be permitted just agree to take the medication. This is especially true if the respondent has a history of non-compliance. Given these additional difficulties, in my opinion, my role as counselor is more prominent in my mind as I represent my clients in mental health court.

Learning to navigate these issues has been made more difficult by COVID, and like many people, I am looking forward to getting back to practicing law in person. That being said, I believe that these issues will outlive the COVID restrictions.

Timothy Lea is a staff attorney with the Illinois Guardianship and Advocacy Commission, Legal Advocacy Service, North Suburban Regional Office.

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