Jesse: This is Committable, a podcast about involuntary commitments. I'm Jesse Mangan and I'm here with Committable producer Michelle Stockman.
Michelle: Hello.
Jesse: And for this episode, we are going to be talking about mental health laws in Texas.
Michelle: I'm a little scared for Texas, I won't lie.
Jesse: Honestly, I'm a little scared of every mental health law, but in this case I think we have an excellent guide because to learn more about mental health laws in Texas, I spoke with Cindy Gibson.
Cindy Gibson: My name is Cindy Gibson, and I work for Disability Rights Texas. I supervise investigators who go into state hospitals and private psychiatric hospitals and jails to monitor for abuse and neglect or rights violations. We also represent individuals who feel that their rights have been violated, or that they have been abused and neglected.
Jesse: So, in Texas the mental health law is the Texas Mental Health Code. It's the part of the Texas Health and Safety Code that deals specifically with admissions and discharges from psychiatric hospitals. And Texas, like every state, has a detention for evaluation process within their laws. This process is often what starts someone on the path to a civil commitment. So I asked Cindy, how does that detention for evaluation process work in Texas?
Cindy Gibson: Well, actually in Texas we have several ways it can start. So one of the ways it can start is with a peace officer. Any member of law enforcement can do what's called an emergency detention if the police have reason to believe that you may be dangerous to yourself or to another person. The officer can detain you and take you to the nearest hospital or clinic to be evaluated to determine whether you need to be detained in a psychiatric hospital. Another way you can get there is through a warrant. Literally, anybody in the state of Texas can go to a magistrate and apply for a warrant to commit somebody, to basically do an emergency detention, without law enforcement. The magistrate reviews the warrant application and decides whether or not the individual needs to be detained and transported for evaluation for emergency commitment. And then the third way you can be detained is if you have a guardian. A guardian can transport you to a psychiatric hospital and that psychiatric hospital has to accept you for evaluation, for emergency detention.
Jesse: If someone in the community applies to have another person evaluated and the magistrate approves, do they then send peace officers to get that person and bring them in?
Cindy Gibson: Yes, the magistrate will issue a warrant, and that warrant will direct law enforcement to detain the individual and transport them to the nearest acceptable facility.
Jesse: For the person going through that process, do they have the right to a hearing? To appear before a magistrate or a judge?
Cindy Gibson: No. In fact, the magistrate can decide before he issues a warrant that he wants to interview or talk to the individual, but that rarely if ever happens. So, during the emergency detention process you have no right to a hearing. You're detained, you have a right to know why you're detained and where you're detained, and to be evaluated within 12 hours by a physician, but the door isn't open yet for a hearing. And the main reason is that you're only being detained, you're not being committed to treatment. So at that point, you can't be forcibly treated. You can only be detained to determine whether there is a need, or further need, for treatment.
Jesse: Okay, so at this point in the process a person is being detained and within 12 hours there's an evaluation. If the physician or clinician decides this person does need to be held for treatment, what happens next?
Cindy Gibson: So, what happens next is from the point that the individual is brought to the facility, which includes the time that he or she waits for the evaluation, the facility can admit the person, or they can be transported to a facility that will admit the person. And they can be detained for 48 hours. So that 48 hours does not include weekends, it does, okay, so it's a little complicated. Because if the 48 hours ends on the weekend or a holiday, you have to wait till the next business day. So if you go in on a Friday, the weekend counts and your time expires on that following Monday. But if you go in, for example, for people that were brought in, say on Tuesday night, Thanksgiving week, and the 48 hours would end on Thursday. If they were brought in on Tuesday, they have to stay Thursday and Friday because those are holidays Saturday and Sunday because those are the weekend days. And then the first time that they would be eligible for release is at nine o'clock Monday morning. So it's 48 hours, but depending on your luck and what month it is and what day it is, you can be held for longer than 48.
Michelle: It continues to boggle my mind that our holidays can really screw someone over so significantly. And there's in fact all of these pushes to increase mental health awareness around the holidays and to increase hotlines being staffed, and you know, we learned that not all hotlines are really great in season two.
Jesse: Yeah, this has always confused me because my very first psychiatric detention happened on a Wednesday night. It was supposed to be a 72 hour hold, and I was told by staff at the psych ward that the earliest I could leave was Monday, because there would be no one on staff who could discharge me on the weekends. Which seems so obviously problematic. I assume the argument for why this is happening is staff shortages, or something like that, but I think a good general rule to follow is that if you don't have enough staff to discharge someone, then you probably shouldn't be allowed to detain them.
Michelle: That is a reasonable rule as far as I'm concerned.
Jesse: Okay, so we're discussing the detention for evaluation process where someone can be involuntarily detained in an ER or a psychiatric facility for evaluation. So my next question for Cindy was, if at the end of this evaluation the facility decides that they want to keep this person inpatient longer, what happens then?
Cindy Gibson: They have two options. The first option is the person can agree that they need help, which does happen, and the person can sign a voluntary admission. And even though it's called a voluntary admission, it is actually a commitment, you are volunteering yourself to be committed. So if you voluntarily admit yourself and you say, oh wait, I made a terrible mistake and I don't wanna be voluntarily admitted, you have to request release. And the facility has 24 hours, which is business days, to evaluate you and determine whether or not they're going to release you or go to the next step, which is what I'm about to talk about. Because the second option, if a person says, no way, I don't wanna be admitted, I wanna go home, the facility can file for what is called an order of protective custody. An order of protective custody is an order signed by a judge. In Texas it's a probate judge, the same judges that do wills and guardianships. And if the judge accepts the application for an order of protective custody, then you can be held for 72 hours before you have a hearing with a judge.
Jesse: So, the judge will sign this order that starts the three business day clock, and at some point you get a hearing. What does that hearing look like? Is the facility providing their own lawyer and then you get some sort of defense attorney?
Cindy Gibson: The way that works is, at the first hearing, which is the probable cause hearing, which is the hearing that occurs after 72 hours or three business days. So in the court you have an attorney, that attorney is appointed by the court, and you can go to your hearing and present your case to a judge. And the state, who is bringing you to the hearing, it's not actually the facility, it's the state, is represented by the county attorney's office. And then the judge makes a decision whether or not you can continue to be detained based on probable cause, or you're released. If the judge says there's not probable cause and you're released, then effectively you can be released straight from the court, the hospital no longer has the authority to even make you go back to the hospital to discharge. If the judge determines that there is probable cause to keep detaining you then you can be detained a total of 14 days on an order of protective custody, which includes the three days that you were waiting for your hearing. So, technically, an order of protective custody is 14 days if the judge approves for you to be detained for the entire time.
Michelle: Okay, so 14 days and then you get your probable cause hearing.
Jesse: Uh, no.
Michelle: No.
Jesse: Okay, this can all get really complicated, so let's do a recap.
Michelle: Okay.
Jesse: First, there is the detention for evaluation process, and there are three ways that can be initiated. First is with an emergency detention, that is where a peace officer apprehends you on the spot and brings you to a facility for evaluation. The next way a detention for evaluation can be initiated is with a warrant. This is where anyone in the state can apply to have a magistrate issue a warrant to have someone else detained for evaluation.
Michelle: Don't forget any guardian.
Jesse: Yes, right.
Michelle: And Britney Spears taught us that there's no issues with those.
Jesse: Uh…yes. It's a valuable lesson and we should all be paying more attention to guardianships and how they can be abused.
Michelle: Continue.
Jesse: Okay, so that initial detention for evaluation is 48 hours, or two business days to be more precise. And at the end of those two days the facility can apply for an order of protective custody. And this is where it gets a little confusing because as soon as that order of protective custody is approved a probable cause hearing is scheduled, which should happen within three days of that order of protective custody being signed. So the order of protective custody is 14 days total, but you are supposed to get a probable cause hearing three days into that 14 day period of detention.
Michelle: So the hearing happens in the middle of the 14 days? Potentially?
Jesse: I would say it's more towards the beginning of the 14 days but essentially, yes.
Michelle: If it goes well for you do you still have to finish the 14 days?
Jesse: No, if a judge decides in your favor then you should be immediately released. But most people who go to one of these probable cause hearings do end up being committed. And not only do they automatically give you a date for a probable cause hearing when that order of protective custody is signed, they also automatically schedule you for commitment hearing. And that is supposed to happen at the end of that 14 days.
Michelle: They just go ahead and pick a hearing out of the gate because they're like, there is barely a chance that you will not need one of these?
Jesse: Possibly? It might be that the probable cause hearing and the commitment hearing are being scheduled at the same time merely as a matter of convenience. Because regardless of the outcome of the probable cause hearing, the law has already clearly defined when that commitment hearing is supposed to take place, if the process does actually reach that step. But that commitment hearing is supposed to be sort of the final legal check in this process before someone gets committed for an even longer period of time. So, my next question for Cindy was, what happens at that commitment hearing? What does that hearing look like?
Cindy Gibson: At the commitment hearing you can be committed, it used to be 90 days, but the state changed that law back in 2018 so that it is 45 days. But the judge has discretion to lengthen it up to 90 days if he doesn't think 45 days is enough, but if he doesn't specify, it's 45. At that hearing, you have the original certificate of medical examination by the doctor who originally thought that there was probable cause, but then you have to also be evaluated by another doctor. One of the two doctors has to be a psychiatrist and can't be the doctor involved in your treatment. So, the second doctor evaluates you and fills out an additional certificate of medical examination. Both of those certificates of medical examination have to be submitted to the court and one of the two physicians that filled out the certificate of medical examination have to be present at the hearing and you're represented by the same attorney who represented you at your probable cause hearing. And the majority of people who go to court for a commitment hearing are committed. There are people who win their commitment hearings and it's all dependent on whether they have an attorney who is actually invested in helping them not be committed. I mean, in reality, all of the attorneys that represent proposed patients are appointed by the court, except for the handful that work for public defenders offices in the larger cities. They're just sort of appointed private attorneys who get paid very little and really have not a broad breadth of knowledge about mental health. So these hearings tend to go real fast and the majority of people get committed, especially if they're in a public or state hospital. Private hospitals have this practice where they get the order of protective custody, they go to the probable cause hearing, they can hold the person up to the day of their commitment hearing, and they then let 'em go that morning and say, well, we decided not to go forward with a temporary commitment so you can leave. In the private hospitals that tends to remarkably coincide with how long the insurance company is willing to continue to pay for the stay.
Jesse: So there are checks and balances in the system but it's really complicated because it seems like the easiest way out is, basically, to do what you're told?
Cindy Gibson: You know, I hate giving people that advice because obviously I'm an advocate and I want people to stand up for their rights, but it's really difficult. I mean, it's the same reason why in criminal courts people end up doing the plea bargain because in order to go through the entire court process to prove that you're not guilty for a sentence that would be less than the time you're sitting in jail waiting for a hearing, becomes attractive. In the criminal system people who have their own attorneys turn out much better than people who get court appointed attorneys, and that's not different in the civil mental health system. Your representation is only as good as how much that court appointed attorney wants to work for you and has the time to do the work that's necessary to.
Michelle: I will be honest, when she was explaining some of this I feel like my brain just completely blanked out. Because it sounded like a comedy routine, like a comedy routine about someone explaining a very complicated game. Like, it's so unnecessarily complicated, and I understand there was some level of checks and balances, but to have something that complicated almost feels like it makes checks and balances virtually irrelevant. And I also want to mention that, you know, when we talk about things like probable cause and, you know, danger to others, I mean, for a lot of people sure they're gonna find other ways of saying this, but for a lot of people, does that person seem dangerous? Is the same question as are you black?
Jesse: Yeah. I've never seen a mental health law anywhere in the US that effectively checks the bias of the clinician. And think about the authority given to the general public? Law enforcement can at any time decide to use an emergency detention to involuntarily confine someone for evaluation, but on top of that, any member of the community can apply to have a magistrate issue a warrant to have someone else detained for evaluation. A warrant that will be carried out by police. So the law gives any community member the capacity to weaponize the police against someone else they view as strange, different, deviant, or dangerous. And once you go through this process, even if only once, you can become marginalized and stigmatized in a whole new way.
Michelle: And I know that we're talking about a lot of families, we're talking about families, and I know, I know a lot of families feel very overwhelmed if they have a loved one in distress. And I don't want to diminish that. But I do also feel like an important part of making people aware of what's going on here is to make people aware that when you have the best intentions for your loved ones, sometimes the system isn't gonna be as much help to them as you want it to be, or as you think it might be. Because, I know that there are many, many people who feel these systems have helped them, and I also don't wanna diminish that, that there are people out there who say, I got the help I needed. This was really powerful for me. I'm so glad a family member intervened. But that you are taking a huge risk that that's gonna be the outcome instead of a lifetime of further trauma.
Jesse: Yeah. There are so many perspectives that need to be considered when thinking about mental health laws, but the most important perspective, the one that always needs to be centered, is the perspective of the people who are being forced through these systems. And that was one of the things that really resonated with me when talking with Cindy.
Cindy Gibson: One of the reasons I got into this business is because when I was 18, I was committed to a state hospital and I was there for three years. The only reason I was able to get out of the hospital was because of a federal lawsuit in Texas that was suing the state for the conditions of the state hospitals, and the lack of treatment and not getting people out. So I was released because of that lawsuit and I haven't really been back to a state hospital since then. But at the time I was in college for psychology, I wanted to be a psychologist. I know I got a real inside education on that. I knew that if I ever wanted to be a licensed psychologist, all of that would come up and I would have to discuss why I was in a state hospital for three years, other than I was girl severely interrupted. So it really does have an impact on people's lives and, you know, you have the Americans with Disabilities Act and you can ask for accommodations. But if you have a mental illness and you've been involuntarily committed you automatically get all of these different levels of review if you want to pursue certain types of careers. And there isn't a discussion, for instance if you want to be a nurse, about how to accommodate mental illness. Or even driving. If you're on psychotropic medication you're supposed to tell the police that you're on psychotropic medication. And then they have a medical committee that reviews to determine whether you can drive, so nobody says they are. I mean, essentially everybody lies on the application for a driver's license. They ask what medications you're on because if you put down a whole list of mental illnesses and then you list what it's for, they're gonna review your application to determine whether you should drive.
Jesse: One of the ways that people might try to change the conversation in society about situations like this would be for people with lived experience to get positions where they do have some sort of authority, or they are interacting with these situations. But it seems like there's a selection process inherent in the system. If you've gone through this system, you are much less likely to be able to have an elevated voice, or a voice of authority.
Cindy Gibson: When I got outta the hospital, I pretty much didn't wanna have anything to do with anything related to mental health. I just wanted to stay low and get a job. But I ended up working for an advocacy group that was individuals with lived experience. And from there I worked for the state trying to change rules and laws, but it's very hard. Much like people with other conditions or situations that create bias. When you're someone that is known to have had a mental illness, you hear that you're very articulate, you have such passion, but you really have to fight to be taken seriously. Which is one of the reasons I came to Disability Rights Texas, because I work for an attorney and they don't have to listen to me but if they don't listen to me, then they have to listen to my supervising attorney. And so, it gives me more latitude to basically advocate for other people. Cause I know I have backup from an attorney.
Jesse: I find it so frustrating that something like a commitment, which in and of itself doesn't mean anything. Being committed just means that at some point in time some legally authorized person had an opinion about you. And if anyone should be considered an expert on the impact of the commitment process it should be the people who have experienced them firsthand. And yet simply having a record that documents that you went through a commitment automatically creates all of these barriers that can prevent you from being able to influence the system that you went through.
Michelle: I mean, not just barriers, but in some cases they're acting as actual funnels. Both you and Cassidy's story start with academia, and start with asking for help in what seems like an innocuous and innocent way. That's not just a barrier for you to go back to academia. You're aware of the fact that being within academia is potentially a part of why this happened in the first place. I mean, I don't know how yours and Cassidy's stories may have changed if you had been in a different world. So, yeah, I mean, it's not only what else can you do because of these barriers but it's also what's safe for you, you know? Where can you be honest and articulate and voice these things and be safe as well?
Jesse: Yeah, I don’t know. Podcasting, maybe?
Michelle: Alright, good point.
Jesse: Alright, next time on Committable, we'll be talking about mental health laws in Arizona. Michelle: Mm-hmm. .
Jesse: And we just might be put in a position where we have to talk about the chemical imbalance theory.
Michelle: Oh, damn…
Jesse: Yeah, I'm putting “theory” in air quotes there.
Jesse: Committable is produced by Jim McQuaid,. Michelle Stockman and me, Jesse Mangan. All music is from the Song Reasonable by Christopher G. Brown.