CLE program highlighted mental health issues and legal professionalism

On May 16, 2018, the Illinois State Bar Association’s Mental Health Law Section Council hosted a continuing legal education event titled, “What’s New in Mental Health Law: Mental Health Issues and Legal Professionalism.” Four speakers shared their professional involvement with Mental Health law in Illinois from different perspectives.

Section Council Chairperson Robert J. Connor began the program. Connor is a deputy general counsel with the Illinois Department of Human Services, which he has represented for over 30 years.  His rich experience includes work in areas such as mental health law, developmental disability and rehabilitation service laws.  His expertise lies in the area of confidentiality of records.  He has conducted legal review of the new databases that aggregate the private data of mental health consumers.
Connor thanked participants for attending the live presentation. He emphasized the importance of reviews and updates on mental health law. He then introduced the four speakers by highlighting their talents and extensive expertise.

Barbara Goeben spoke first. A graduate of Northwestern Law School, she has worked at Land of Lincoln Legal Assistance Foundation, Inc., with a specialty on consumer and housing issues. While there, she helped establish the consumer information desk at the Madison County Small Claims Court docket and a program to do direct legal outreach at homeless shelters. Since 2006, Goeben has worked at the Illinois Guardianship and Advocacy Commission Legal Advocacy Service, where she has represented clients at both the trial and appellate levels.

Goeben provided an update of 2016-2017 Mental Health Case Law decisions in the Illinois Appellate Court and Supreme Court levels. She reviewed cases and highlighted the most salient developments. The cases she covered revolved around themes such as: medication issues, commitment, the Mental Health Confidentiality Act, guardianship, criminal law, and DCFS involvement. This summary features Goeben’s discussion of two Supreme Court cases and one case from each appellate district, though she covered more.

First, Goeben started with Illinois Supreme Court case In re Linda B., 2017 IL 119392 (Opinion filed September 21, 2017) (Petition for Rehearing denied November 20, 2017). The respondent was admitted to a medical floor of a hospital, where she received both general medical and psychiatric treatment. She was subsequently transferred to the behavioral health unit of the same facility. At that point, the State filed their Petition for Commitment. The court affirmed both lower courts, which denied respondent’s argument that the petition was filed too late. The court addressed two important issues: 1) what constitutes an admission to a mental health facility and 2) what constitutes a mental health facility, itself. An admission may be defined by the respondent’s legal admission (rather than mere physical admission), specifically, when the respondent begins to receive mental health services. The court expanded the definition of a mental health facility to include any facility where the respondent has received mental health services, despite the title of the facility, which is irrelevant in making the determination.

Goeben has found that best practice is to file a petition earlier rather than later. As soon as the recipient is receiving mental health services (and wants to leave the facility), one should pursue filing a petition.
 The other Illinois Supreme Court case on which Goeben reported is In re Benny M., 2017 IL 120133 (Opinion filed November 30, 2017). It is a medication case involving the handcuffing (shackling) of the respondent at the hearing. The holding indicated that when a court is faced with a respondent who could be disruptive in court, the judge may not rely solely upon the word of the State’s Attorney or the hospital to determine whether or not shackling is appropriate. Rather, the judge must make an independent determination, on the record, based on factors such as whether the respondent is a risk for flight, a threat to safety, or presents an issue with maintaining order in the courtroom. In addition, defense counsel bears the burden of advocating for the removal of the handcuffs from their client. Counsel must object to the handcuffs and request an opportunity to be heard. Ultimately, in Benny M., the court reversed the appellate court’s judgment and affirmed the circuit court’s ruling, which had found that the respondent may be physically restrained during the hearing. The court found that the trial court did not rely merely upon the security officer’s opinion but, rather, appropriately weighed the information provided through its own independent assessment.

Goeben spoke about some district court cases, including In re Debra B., 2016 IL App (5th) 130573 (May 31, 2016). It discusses involuntary medication and the requirement of providing written information. Debra B. also addresses the sufficiency of evidence regarding suffering and deterioration of the ability to function for involuntary medication. The decision must be made based on a person’s current mental state. Respondent must be provided with written information regarding alternatives to medication. Regarding proof of suffering, the State needed to show that the respondent was experiencing the type of suffering that can be alleviated by psychotropic medication. Regarding deterioration, the appellate court held that the State needed to show a deterioration in the respondent’s ability to function on a basic level. The appellate court ultimately reversed the trial court’s decision and held that the trial court’s findings (that the respondent was suffering and that her ability to function had deteriorated) were against the manifest weight of the evidence.

Next, Goeben spoke about In re Clinton S., 2016 IL App (2d) 151138 (Dec. 2, 2016). This case involves involuntary treatment as it relates to hemodialysis, testing, and other procedures. The respondent could not take his medication because it would further harm his kidney disease, as there is a direct correlation between the medication and kidney disease. The doctor ordered hemodialysis. The Clinton S. court affirmed the trial court’s decision to order hemodialysis as a procedure for the safe and effective administration of the psychotropic medication.

Goeben also spoke about In re Tara S., 2017 IL App (3d) 160357 (August 3, 2017). This case found that the psychiatrist must personally examine the recipient; a mere review of the records is not sufficient for involuntary medication. The expert testimony must be that of a psychiatrist who personally examined the respondent. Tara S. also represents the fact that a respondent must receive sufficient written information about medications before being required to take the medication. In this case, the court held that the respondent could not be compelled to take the medication (lithium) “without receiving written notice of side effects, risks, benefits, and alternative treatments to lithium.”

Additionally, Goeben gave background on In re Jian L., 2018 IL App (4th) 170387 (Opinion filed January 29, 2018). In this case, the respondent filed a written request for discharge. The State proceeded with the hearing even though the respondent withdrew her request for discharge. The appellate court affirmed the trial court’s decision to proceed on a petition despite the fact that the respondent withdrew the request for discharge from voluntary admission. Further, the Jian L. court held that any (technical) deficiencies in the certificates (which had not been executed under the penalty of perjury under the Mental Health and Developmental Disabilities Code) that were attached to the State’s petition did not prevent the court from adjudicating the petition.

Finally, in People v. Viramontes, 2017 Il App (1st) 142085 (Opinion January 9, 2017), Goeben explained, a witness testified as to whether her mental health records were admissible. This case addresses the confidentiality of a witness’s mental health records, as it implicates the Illinois Mental Health and Developmental Disabilities Confidentiality Act.  The trial court determined that some of the witness’s mental health records were admissible, whereas six years of them were not. The appellate court stated, “It is well-established under Illinois law ‘evidence of a witness’ mental condition is admissible to the extent it bears upon the credibility of the witness’ testimony.’” The Viramontes appellate court affirmed the trial court, holding that “the vast majority of records concerned depression, anxiety, and an eating disorder, none of which would be relevant to testing” the witness’s credibility.

The next speaker was Mark Heyrman, a Clinical Professor at the University of Chicago Law School. He teaches courses in Mental Health Advocacy and Mental Health Law. Heyrman is a board member and Past President of  Mental Health America of Illinois and chairs its Public Policy Committee. He helped found and is the facilitator of the Mental Health Summit.

Heyrman spoke about mental health legislation that is either pending in or has passed out of the 100th General Assembly of 2017-2018. He categorized the legislation into eight different topics: criminal justice, guardianship and advance directives, gun violence, Medicaid, the Mental Health and Developmental Disabilities Code, miscellaneous bills, private insurance / mental health insurance parity, and workforce issues. This summary features some of the bills that Heyrman discussed within each topic.

First, Heyrman spoke about legislation in the area of criminal justice. He noted that our country confines more people in jails and prisons than any other country. Many of those people suffer mental illnesses. House Bill 375 (Public Act 100-0247) improves police training regarding persons with mental illnesses. This is where the CIT (Crisis Intervention Team) training comes into play.

Heyrman also spoke about Senate Bill 1276 (Public Act 100-0424), which requires a report about whether persons found unfit to stand trial for a misdemeanor will be fit before their sentence would expire (rather than within one year); it also changes the periodic treatment reports for insanity acquittees from 60 days to 90 days. This helps to resolve the problem that many people arrested on misdemeanors never truly stand trial.
On the topic of guardianship and advance directives, Heyrman referenced Senate Bill 1319 (Public Act 100-0427), which permits the use of videoconferencing in guardianship hearings. This will help to facilitate probate proceedings in a similar manner to videoconferencing in Mental Health cases.

Further, Heyrman discussed Senate Bill 2609, which clarifies that objecting to treatment does not revoke an advance directive. In Illinois, two types of advance directives are: a Power of Attorney for Healthcare and a Mental Health Treatment Preference Declaration. In terms of the first, more generic type, there are three listed ways to revoke a Power of Attorney for Healthcare: 1) tear it up, 2) deface it, or 3) declare one revokes it. This bill clarifies that the effect of refusing medication does not revoke the Power of Attorney for Healthcare. This bill was being voted upon, in Springfield, the day of this program’s presentation.

In terms of the area of gun violence, Heyrman mentioned that House Bill 772 was still pending. It creates the Lethal Violence Order of Protection Act to permit the temporary removal of guns following a hearing. It is modeled on the domestic violence order of protection so you can obtain a temporary restraining order. A loss of weapons only occurs after a full court hearing. In terms of gun violence as it relates to mental illness, one-third of homicides and two-thirds of suicides are committed by firearm.

In the realm of Medicaid, Heyrman informed that a very large number of people with serious mental illness are now covered under the Affordable Care Act. He also enlightened participants about a few different bills. One such bill is House Bill 2907 (Public Act 100-0385), which amends the Medicaid law that governs telepsychiatry to remove the requirement that the healthcare professional be in the room with the patient. This should help to expand the use of teleconferencing and alleviate the tax on the existing workforce shortages among psychiatrists and psychologists.

House Bill 4096, which requires DHFS to create a standard preferred drug list for Medicaid-managed care organizations that allows MCOs (Managed Care Organizations) to offer more but not fewer choices, is another bill Heyrman elaborated upon. Medicaid and insurance companies will pay for it.

Next, Heyrman talked about House Bill 4950 / Senate Bill 2951 (which was pending at the time of the presentation), which creates Medicaid pilot programs for early mental health treatment for youth and early engagement for persons with opioid addiction. Early intervention, he noted, is very effective.

Heyrman next spoke about the Mental Health and Developmental Disabilities Code. He highlighted House Bill 3703 (Public Act 100-0012), which creates a pilot program allowing interstate commitments with Iowa in the Rock Island area. Thus, commitments can occur across state lines.

Additionally, he focused on House Bill 3709 (Public Act 100-0196), which increases the amount of outpatient treatment which may be provided to a minor (mainly aged 12 and above) without parental consent. This is particularly relevant where harm would come to a patient if he or she asks a parent for permission.

Another, miscellaneous bill that Heyrman mentioned is House Bill 2477, which the ISBA’s Mental Health Law Section Council developed. It allows long-term residents of the State hospitals to vote.

On the topic of private insurance and Mental Health Insurance parity, Mark Heyrman authored an op-ed in the Chicago Sun-Times in favor of House Bill 4146. The bill prohibits changes in the coverage of pharmaceuticals during the term of coverage. This is particularly relevant for people who manage chronic conditions.

Finally, in the sphere of workforce issues, Heyrman explained House Bill 5109, which creates a Community Behavioral Health Professional Loan Repayment Program. This is a mechanism to help fund professionals’ training and address workforce shortages.

The next speaker was Christine Anderson, Esq. She is the Director of Probation and Lawyer Deferral Services and Senior Litigation Council at the Attorney Registration and Disciplinary Commission. She has been with the office for about 30 years. During her employment with the ARDC, Anderson has investigated and prosecuted hundreds of cases of attorney misconduct and has argued several disciplinary cases before the Supreme Court of Illinois. She currently monitors the attorneys placed on diversion, supervision status by the Inquiry Board and probation and conditional admission by the Supreme Court of Illinois.

Anderson spoke about Licensure and the Impaired Lawyer. She highlighted five areas: 1) facts and figures relating to the ARDC and impairments in the legal profession, 2) signs and symptoms of impairment issues and attorney regulation, 3) promoting wellness and LAP (Lawyers’ Assistance Program), 4) colleagues and attorney wellness, and 5) rule amendments.

At least 25-30 percent of Illinois lawyers who face formal disciplinary charges before the ARDC are identified as suffering from addiction or mental illness. Fewer lawyers are being reported as suffering from these issues. But when complaints are filed, they are very serious. Himmel reports (filed by lawyers) show that almost 50 percent of formal ARDC complaints at hearing are generated by a lawyer’s report. Three reasons to take action are: 1) the organization’s success, 2) the well-being influences ethics and professionalism, and 3) humanitarian reasons, meaning that untreated mental health and substance use disorders can ruin lives and careers.

Some of the warning signs of an impaired lawyer are: attendance issues, personal problems, financial issues, performance problems, and health issues. From the perspective of the impaired lawyer, their duty is spelled out in Rule 1.16, which is titled, “Declining or Terminating Representation.” It states that a lawyer shall not represent a client or…shall withdraw… if: the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client.

The ARDC refers cases to the Lawyers’ Assistance Program (LAP), which prioritizes confidentiality, above all else. Supreme Court Rule 766 governs referrals from the ARDC to LAP. It states, in part, “…the ARDC may refer a lawyer to LAP despite an otherwise confidential investigation when there is reasonable cause to believe that a lawyer is, or may be, addicted or abusing alcohol or other chemicals or is, or may be, experiencing a mental health condition or other problem that is impairing the lawyer’s ability to practice law.”

Regarding the obligations of the impaired lawyer’s colleagues and law firm, Illinois Rule of Professional Conduct Rule 5.1 requires lawyers with supervisory authority over other lawyers to make reasonable efforts to ensure the conduct of these individuals is consistent with the ethical obligation of a lawyer. Discipline procedures regarding impairment issues dictate that if the lawyer is not incapacitated (is in treatment or recovery): they can be either subjected to probation, maintain active status with conditions, receive “108 supervision,” or receive “diversion,” which permits the file to be closed.

Anderson next spoke about Illinois Rules and amendments to the rules. Illinois Supreme Court Rule 758 outlines what happens in the setting of a lawyer’s “Mental Disability or Addiction to Drugs or Intoxicants.” It states that a lawyer is incapacitated if their judgment is impaired due to mental infirmity, mental disorder, or addiction. It states that the Inquiry Board votes that a petition be filed with the Hearing Board. It also obliges the lawyers to transfer to disability inactive status or active status with conditions. Further, Anderson delineated the new changes to the MCLE rules that now require lawyers to complete one hour of mental health and substance abuse as a part of their Professional Responsibility CLE requirement. In addition, Anderson discussed Illinois’ new PMBR requirement, which requires lawyers who lack legal malpractice insurance to complete a four-hour, online, self-assessment regarding the operation of their law firm. Illinois is the first state that has made this mandatory.

Finally, Anderson discussed lawyers’ wellness. The ARDC administers a confidential questionnaire on their website, which provides lawyers the opportunity to test their knowledge on how to handle issues surrounding impaired lawyers. It highlights that lawyers are three times more likely than the general population to suffer from depression and that almost t 20percent of lawyers report that they suffer from anxiety. Also, in relation to the topic Anderson had previously discussed on colleague and supervisor intervention, the ARDC’s online tool provides some guidance in this regard, as well.

The final speaker was Madeleine M. Sharko. She is an attorney with the Illinois Office of the State Guardian (OSG), where she has practiced law since 1991. Sharko practices in the adult guardianship arena, primarily in Cook and Will counties. She is a National Certified Guardian with the Center for Guardianship Certification. Sharko has been a volunteer with the Illinois Lawyers’ Assistance Program (ILAP) since February 2012. Further, she received the “Carl Rolewick Award” at their Annual Dinner. She also holds a Master of Arts in Counseling.
Sharko stated that many clients are now referring themselves. Lawyers who are 30 years old and younger are more aware. Substance issues account for 47 percent of the clients’ bases for becoming an LAP client; psychological issues account for 51 percent of them.

When Sharko began volunteering for LAP in February 2012, she became a mentor
and a “lawyer’s lawyer.” She can serve as a peer mentor and as “an affirmation.” She runs a men’s group, a women’s group, and a new lawyers’ group. LAP gives them a referral for the group rather than accepting walk-ins. LAP does not have to reveal the source of the call and / or the referral. The groups are confidential and free. She speaks with law students during office hours who state they want a “good life,” as their goal, rather than merely stating that they want to be a good lawyer. She also helps at law schools.

The LAP services are successful because stigma is reduced, as everyone there is a lawyer. A good majority of attorneys who have used LAP services are better for it and are more financially successful because of it.

Lawyers are (more) at risk for a few reasons. One reason is that student debt is eclipsing even the larger attorney salaries. Financial pressure can be a strong contributing factor. Other causes involve the competitive nature of lawyers and high expectations from clients.

In order to spot substance abuse problems in a lawyer, one may “follow the ‘MAP.’” One may notice “Mood” or attitudinal disturbances. One may see changes to the person’s “Appearance” or physical changes. Finally, a drop in “Productivity” and quality of work may be present.

If a lawyer notices a colleague exhibit signs of depression, anxiety, or suicidality, the lawyer can take a few steps to help. The lawyer can “ask, care, and escort, or ACE.” In terms of escorting the colleague, the two may call LAP together (LAP is not connected to the ARDC.) and ask to speak to a clinician. Also, the lawyer may call LAP on their own and report their colleague but LAP needs a contact number. LAP will contact a trained LAP volunteer (who is bound by confidentiality). Further, LAP will reach out to the person, sharing that someone (who may choose to remain anonymous) expressed concern for their well-being and invite them to come to the office.

To volunteer for LAP, members can be trained as peer mentors every June for about six to seven hours. LAP will contact volunteers to ask whether they are free to serve as a mentor, who is not a therapist but rather a confidential peer support. Volunteers’ time commitment can be as little as a couple hours a year to fifteen-minute increments. LAP works with volunteers to find a time commitment that fits best.

Rob Connor closed the program with concluding remarks. He expressed appreciation for each of the speakers and thanked participants for attending the program in person.

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Dara M. Bass is an independent contractor attorney, based out of the Chicago area, who is licensed in Illinois and Missouri. She has been a member of the ISBA’s Mental Health Law Committee since 2006. She may be contacted at: darabasslaw@gmail.com

Editor’s Note:  SB 2609 was signed into law as Public Act 100-0710.