I went to law school to protect the constitutional rights of vulnerable minorities. My first pro bono case protected a mentally ill prison inmate. My heart aches for those suffering from mental illness. We must do better.
From our nation’s earliest history, we have failed persons suffering from mental illness. We treated their illness as a religious or moral failing. We stigmatized and demonized them. People were locked away in asylums, often for a lifetime, with no effective treatment or legal recourse.
Things began improving in the mid 1900s. In 1975, the Supreme Court ruled that mentally ill persons may not be hospitalized against their will if they are not dangerous. The judicial system now presumes that everyone has decisional capacity and that no one should be treated against their will unless they are proven to be “imminently dangerous to self or others.”
A major problem arises when mental illness (or substance abuse) destroys a person’s decisional capacity, so they can no longer comprehend treatment choices or make decisions for their own self-preservation. We see them living on our streets in very unsafe conditions, because they are not “imminently” dangerous to self or others.
Some argue that homeless persons experiencing mental illness should be allowed to live on our streets without restrictions or treatment, because they “choose” to be homeless and “choose” to refuse treatment and shelter. Yet often their severe mental illness causes lack of decisional capacity, so their “choice” is a direct product of illness rather than an informed decision.
These disabled individuals have a legal right to appropriate medical treatment, to ease their suffering and restore them to higher functioning levels. Sadly, it takes substantial time, money and effort to bring each person’s treatment needs to court, so this rarely occurs. As a result, these persons often deteriorate and die on our streets.
We need to improve our laws so courts can promptly provide guardians or similar protections for persons who no longer have legal capacity for health-care decisions. Then someone can help make decisions that would be in their best interest. Our legal system should provide earlier intervention to authorize appropriate treatment and supportive services as needed, to truly help these incapacitated persons.
Thankfully in Hawaii, our laws are slowly improving. Earlier procedures entailed substantial delays, waiting months for a treatment order, during which patients lost limbs or even their life. More options exist now. But more can still be done with strategic partnership between the judicial and health-care systems.
We seek your support of these bills that can help our legal system work better:
>> House Bill 1155 and Senate Bill 982 — make improvements to further expedite “community assisted treatment” orders.
>> HB 1156 and SB 916 — make improvements to expedite inpatient “orders to treat” over objection.
>> HB 1154 and SB 915 — expedite guardianship orders for persons who lack decision-making ability in psychiatric facilities, hospitals and homeless shelters.
Together we can help our neighbors in need.
Ellen Godbey Carson is a retired attorney and former president of the Hawaii State Bar Association, Hawaii Women Lawyers, Institute for Human Services and Hale Kipa Youth Services.
