Jesse: Jim, as a professor of sociology, if someone were trying to commit you would you insist that they call you doctor?
Jim: I actually, when people call my doctor, I kind of cringe in general, but in that situation where I'd be kind of trying to grab onto any shred of power or control, even if it's petty and ridiculous and ultimately, counterproductive. I know that once the situation takes over, it kind of just takes over.
Jesse: Yeah, every time I've tried to resist the commitment process it ends with a whole bunch of crying from me.
Jim: I would probably also end up crying.
Jesse: And speaking of sharing tears with a friend while attempting to face oppressive systems of control, what podcast is this?
Jim: Ha!
(laughter from Jesse and Jim)
Jesse: Uh, ready?
Jim: This is Committable.
Jesse: And now on to the mental health laws.
Jesse: This is Committable, a podcast about involuntary commitments. I'm Jesse Mangan and I'm here with Committable producer Jim McQuaid.
Jim: This is Jim McQuaid.
Jesse: And for this episode we are talking about mental health laws in Minnesota and to learn more about those laws, I spoke with Daniel Repka.
Daniel Repka: Good afternoon, my name is Daniel Repka. I am an attorney licensed to practice in both Minnesota and Wisconsin, I own Repka Law, LLC. We have a location in South St. Paul, Minnesota, and also a location in Hudson, Wisconsin. I practice primarily in the areas of criminal defense and civil commitment defense.
Jesse: So to start, what is the mental health law in Minnesota called?
Daniel Repka: The civil commitment statute is 253B Minnesota statute, chapter 253B. It's also cited or entitled Minnesota Commitment and Treatment Act. There are also special rules that govern proceedings under that civil commitment act. But what we're really talking about when we're talking about civil commitments is Minnesota statute, chapter 253B, as in bravo. There's also a 253 D, as in delta. Those are indeterminate commitments. I guess there are two types of, of commitments in Minnesota. Number one, you've got what we call determinate commitments. In other words there is an end date to that commitment, the court can only commit a person for so long before the government has to petition for a renewal or continued commitment. Then there's also indeterminate commitment. People who are mentally ill and dangerous, people who have sexual psychopathic personalities and are sexually dangerous. Those don't have end dates. So essentially, if you're committed under Minnesota statute chapter 253D, you get committed and the only way out is to essentially beg for your freedom.
Jesse: In that situation with a 253D, is there a much higher standard that has to be met?
Daniel Repka: Not really. The legal burden of proof, the standard is the same, it's clear and convincing evidence. Now, there are different elements to a determinate commitment versus an indeterminate commitment. There are more elements that the government has to meet for those indeterminate commitments, but the burden of proof is the same, clear and convincing evidence.
Jesse: The commitment process usually begins with some sort of detention for evaluation. How does that detention for evaluation process work in Minnesota?
Daniel Repka: In my experience, 9 times outta 10, a person is evaluated at the hospital after they experience what we like to call a psychiatric emergency. You're brought to the hospital by ambulance, you're brought to the hospital by law enforcement because you're experiencing this psychiatric emergency, this mental health emergency. And once you arrive at the hospital the physicians there will conduct an interview and an evaluation, and if the physician believes that you might meet criteria for civil commitment based on the behavior that you're exhibiting, that's what triggers the next step for a potential civil commitment. In a case where a person is brought to the hospital and they're interviewed, they're evaluated to determine if they meet criteria for civil commitment, a physician has the authority under Minnesota law to put a hold on you, a hospital hold on you, and that hold can last up to 72 hours. The hospital can't do multiple hospital holds, right? They can't say, Hey, this 72 hours expired. We're gonna do another 72 hours because we really think you need this evaluation. We really think you need this confinement. So within that 72 hour period, The hospital through the nurses and the physicians will document the observed behaviors and then forward that information to the county attorney's office, the county in which the person resides, and it's ultimately up to the county attorney to determine if there's sufficient evidence to move forward on a civil commitment petition.
Jesse: So in this situation, someone is in an ER, or hospital, they've either entered willingly or been brought there against their will, and then they're being evaluated. Is the person doing that evaluation a physician? Does it have to be a physician?
Daniel Repka: Yes and no. The evaluation report that's submitted to the county attorney's office, yes, it has to be a physician, but the physician is allowed to use the information collected by other medical professionals. Ultimately, when there's a physician's statement signed in support of a civil commitment, the physician has to sign off on it, and the physician has to attest to the fact that he or she observed these certain behaviors that lead to the conclusion that civil commitment is founded. But the physician isn't bound by only his or her observations. The physician is entitled to rely on the medical records generated before the hospitalization, if there are any, and the medical records that are generated during that hospitalization.
Jesse: So, in Minnesota, the commitment process is divided into several different sections, but often the first interaction that someone has with this process is through a transport hold. A transport hold can be initiated by a police officer, a mental health professional, or pretty much any community member who applies to have someone else detained for evaluation. Once the transport hold is initiated that person will be detained and transported to a facility and they're supposed to be evaluated within 12 hours. And this evaluation can lead to the next step in the commitment process, which is a 72 hour emergency hold authorized by a physician. So my next question for Daniel was, If during that 72 hour emergency hold the physician decides that this person should be committed, what happens then?
Daniel Repka: At that point the physician signs a statement, forwards it to the county in furtherance of petitioning for civil commitment. It's up to the county attorney through usually their local Department of Human Services to staff the case, to see if there's enough information and ultimately refer it to the actual county attorney who's in charge of making these decisions to pursue a civil commitment petition. If the county attorney is on board with filing a civil commitment petition, then a petition is filed in the district court where the patient resides. At that point, once the petition is filed and the court signs off on it, there's now a new hold, right? The hospital hold, or the physician hold is done, right? A lot of times county attorneys will wait until the very last minute to file this. Once that decision is made to file a civil commitment petition, then you have what's called a court hold. And the court hold can last up to 72 hours until you have what's called a preliminary hearing. The preliminary hearing, the purpose of the preliminary hearing is to determine whether you should remain hospitalized, pending the outcome of the case, or if you can be released pending the outcome of the case. But once that court hold is in place it becomes very difficult to leave at that point. Securing someone's release after a petition has been filed is very difficult until after the case is done.
Jesse: So this is another 72 hours, which does not include weekends or holidays I assume.
Daniel Repka: Correct.
Jesse: And at some points that person has the right to a hearing and they should appear before a judge, what does that hearing look like?
Daniel Repka: It's called a preliminary hearing. The preliminary hearing is only to determine whether you pose, essentially, a substantial risk of harm to yourself or others. The burden is on the government to prove that. There are very few cases that I've seen where the government agrees that a person can be released from the hospital pending the outcome of a petition. I've been able to argue it successfully a couple of times, but it's very difficult. So, the hearing looks like this, the county attorney presents evidence to prove that the patient poses a substantial risk of harm to himself, herself, or other people. The county attorney is absolutely entitled to rely on just the medical records, no testimony is needed. They can simply submit the reports to the court. The court can independently review them and then make a decision. The patient, of course, has the right to present evidence at that hearing, but a lot of times because of how little time the patient has with his or her, usually court appointed attorney, there's not a whole lot of evidence to present. So again, I'd say 9.9 times out of 10, a patient is being held at the hospital as a result of that preliminary hearing on a court hold.
Jesse: What criteria does the physician have to believe is present in order to start that hold?
Daniel Repka: There are certain elements in a civil commitment case that have to be met. When you're facing your initial civil commitment you need to be diagnosed with a mental illness, of course, if we're talking about a mentally ill civil commitment. You know, sidebar here, there are different types of determinate commitments. You've got mental illness commitments, chemical dependency commitments, developmentally delayed commitments. This conversation, or this part of the conversation only focuses on the mentally ill civil commitments. But the physician has to show, or the physician has to attest that a person has an organic disorder of the brain, a mental illness, and as a result of that organic disorder of the brain, as a result of that mental illness, the person is unable to provide the necessary clothing, food, shelter, healthcare, or has exhibited a recent threat or attempt, or succeeded attempt I suppose, at self-harm or harm to others. So there's this recency component, not only do you have to have the mental illness, that organic disorder of the brain, but you also have to have a recent episode of harming yourself, trying to harm yourself, harming somebody else, trying to harm somebody else, or a recent inability to essentially receive the necessities of life, clothing, food, shelter, healthcare.
Jesse: Is there a specific timeframe in which the danger has to be displayed? Like, is it imminent? Does the danger have to exist right now? Or could the danger have existed 30 days ago?
Daniel Repka: That is a great question. It's just like any answer in the law, it depends. There's never a black and white, especially in civil commitment law. What I tell my colleagues and I tell my clients is that civil commitment law is very squishy, right? There's not a lot of black and white, it's all very soft. I had a case in Minnesota about two years ago where, essentially the person that was petitioned for civil commitment as a chemically dependent person, and very long story short, we didn't have the ultimate civil commitment hearing for like four months. Maybe it was like three months, it was a long time. Part of that was the treatment center actually released my client in error, right? Wasn't supposed to do that. The court said, you know, you're being held until the end of the case, but the treatment center released my client, so he ran, right? I'm outta here. He dusted off his shoulders and I'm outta here. So he ran, he's nowhere to be found, and we didn't have the actual trial until, I believe it was like three months after the petition was filed. It was a very extraordinary case, and that was one of the arguments that we made is, you know, judge, there's no recent attempt here, that was three months ago. How could you possibly call that recent? But through that case, what everyone seemingly learned is that there is no definition of recent. It's very squishy, it's very soft, recent to one judge or one case may be distant to another judge in another case. So, to answer your question, to sum it up, there is no real answer as to what recent means. Imminent is certainly stronger for the government, but the longer time that passes between the incident and the actual hearing, the better it is for the patient who is trying to avoid civil commitment.
Jesse: So in Minnesota, the mental health law defines a mental illness as “...an organic disorder of the brain, or a clinically significant disorder of thought, mood, perception, orientation, memory, or behavior…”. Which is similar to how mental illness is defined in many other states, but equating a mental illness to an organic disorder of the brain is stigmatizing and dangerous. Because when a mental illness is diagnosed, it's diagnosed based on symptoms. The root cause of those symptoms is usually not known by the person giving the diagnosis. So defining mental illness with a term like organic disorder of the brain broadens the range of conditions so much that it could apply to virtually anything related to psychiatry or neurology. It could apply to symptoms caused by a stroke, or symptoms related to Alzheimer's, or a virus, or bacteria. This term is so broad that it is virtually impossible to disprove, which then allows for physicians to cast a really wide net when forcing people into the commitment process.
Jim: A lot of this just comes down to a doctor or, you know, police or somebody just, they wanna get somebody into the emergency room if they're a cop, or they wanna get somebody committed if they're a physician, and they're gonna just do that regardless of whatever the legal standards are or the processes, like, they're gonna make it happen. And no one's gonna question them because there's, I mean, basically if they're seen to be acting in good faith they can kind of do anything, unless there's some kind of like gross, horrific misconduct. They can kind of do whatever and the worst thing that's gonna happen is the person who they were trying to commit gets released.
Jesse: Yeah, and in this system you can be detained for several days, possibly a week or more, while you're going from transport hold, to emergency physician hold, to court hold, to a preliminary hearing, all before you actually get a commitment hearing, which is probably the closest this system comes to a comprehensive legal check against whatever authority is detaining you. So my next question for Daniel was, What happens at that commitment hearing?
Daniel Repka: So, at this point now, the burden is on the government to prove by clear and convincing evidence that the respondent meets criteria for civil commitment. And at that point in between the preliminary hearing and the actual civil commitment hearing, the court has to appoint an examiner, a doctor to conduct an evaluation of the respondent. In that evaluation the doctor has access to all of the relevant medical records, and the doctor has access to the respondent by way of an interview. And based on the examiner's review of the medical records as well as the interview of the respondent, the examiner offers an opinion, Hey, does this person meet criteria for civil commitment? And the answer is essentially yes or no, right? If the answer is yes, then we look at whether there is a less restrictive alternative, is there something below commitment that's a good fit for the respondent, even if he or she meets criteria for that civil commitment? If the respondent doesn't like the result of the first court appointed examiner, then the respondent is entitled to a second examiner of his or her choosing. Again, all of these have to be court appointed examiners, so there's a list of examiners that are authorized to conduct these evaluations in the state of Minnesota, but this time you get to pick, Hey, the court picked the first one, I get to pick the second one. And same thing, that second examiner has access to the respondent's medical records, that second examiner has access to the respondent to conduct an interview. And same thing, the second examiner, just like the first one, offers an opinion as to whether the person meets criteria for civil commitment. And if the answer is yes, are there any lesser restrictive alternatives to commitment that meets that respondent's needs? In the interim, more medical records are generated at the hospital. If the person continues to be held at the hospital, those medical records are used at the hearing. In my experience, you can have, again, your support network come in and testify on your behalf to say, Hey, you know, we'll take care of the respondent, no problem. If the person has received psychiatric care or chemical dependency treatment in the past, you can offer that evidence to show that commitment is not necessary here. The legal standard here is relevant evidence is admissible, right? So if you can tie the evidence to how it's relevant to the issue at hand, which is whether the person meets criteria for civil commitment, it comes in, right? And then based on the information presented by the examiners, as well as any other information that's offered at the hearing, the court then has to make a judgment call. Has the government met its burden of proof by clear and convincing evidence to prove that the respondent meets criteria for civil commitment? If the answer is yes, are there any lesser restrictive alternatives? If the answer is yes, then you look at those. If the answer is no, then it's civil commitment. If the ultimate answer to the ultimate question of whether the person meets criteria is no, then the petition is dismissed and the patient/respondent is discharged.
Jim: I just wanna comment on one thing, and this is something that doesn't just apply to Minnesota but to any context, which I'm guessing is all of them, in which one of the primary criteria are the medical records. There's a big problem there in that if a person, they don't wanna be committed, but the hospital wants to commit them, they are also the ones who are creating the medical records that are being used to determine the appropriateness of commitment. And so, you're looking at evidence created by the group of people who you know has determined what they see as the appropriate outcome, and is what's being fought. So if I'm the person who is fighting the commitment, I am fighting against the “expert” opinion of those who wanna commit me. And the major criterion that's being used are the documents provided by the very people who, you know, want to commit me. So like, The deck is very stacked against the patient there.
Jesse: Yes, to clarify though, in Minnesota I believe that when the patient is evaluated by a court appointed examiner, that examiner is required to at least attempt to interview the person directly. But yeah, I think you're absolutely right that generally speaking, medical records are as a default considered to be factual and objective when they should be, as a default, at least in this context, scrutinized.
Jim: And there's a lot of evidence, I mean, there's a lot of research into how medical records are written and the degree to which once something is “formally documented”, how it becomes reality. It becomes, so for instance, we read a report from a physician and we read that report as if it's a piece of objective analysis and diagnosis. We don't think about the fact that that physician may have been, scrawling those words quickly in the middle of a really busy emergency room, with lots of lights and sounds and movement and distractions, and that that person may have been working for 15 hours, and only kind of paying attention to the patient in front of them, right? All that context is lost, and all that remains is this description of behaviors outside of context, outside of meaning from the person being assessed. The creation of medical records, or the generation of medical records, is not an objective rational process, but they appear objective at the end of it. They appear to be neutral evidence, neutral assessments of a person's mental state, behavior, but they're not that.
Jesse: Yeah, if the story of your life were a film, medical records would be a review of that film as written by a critic. A critic who has the legal authority to forcibly detain you if they don't like what they see.
Jim: Yeah.
Jesse: Okay, so this brings us to the end of the interview with Daniel Repka, where I asked if there's anything else that is important to know about mental health laws in Minnesota.
Daniel Repka: Yeah, totally, so two things that I think are important to know. Number one is the length of commitment, right? In Minnesota, an initial commitment cannot last longer than six months, but a report is due within 60 to 90 days of the court ordering the commitment. And in that report the social worker for the county has to essentially offer an opinion as to whether further commitment, or continued commitment, is recommended. And if the recommendation is yes, we should continue the commitment, then you have to set a review hearing before the expiration of that six month commitment to determine if continued commitment is appropriate. Continued commitment is another legal term. The continued commitment, if ordered, can last an additional 12 months. So you've got the initial commitment of six months and then it could be extended for another 12 months, so 18 months total. If after the end of that continued commitment, the government still wants you to receive treatment services they have to file what's called a re-commitment petition. So it can be ongoing, right? If there's still evidence that the government feels supports your continued commitment it can be a revolving door, just on and on and on and on. Number two is there is, in the statute, I alluded to this earlier, something that you can file, it's called a 17 petition. It's under Minnesota statute 253B.17, right? Hence the 17. The 17 petition allows for you to ask the court to either discharge you from the commitment, or to order any lesser restrictive alternative, at any time. So you could in theory file successive 17 petitions every week if you wanted to, and you're entitled to a hearing on that petition within 14 days of filing it, and it essentially restarts the process, right? So if you file the 17 petition, the court will appoint an examiner to conduct a review, to offer an opinion as to whether the commitment is appropriate. You have the right to a second opinion, and we have another hearing. The difference between the initial commitment hearing and the 17 petition hearing is that the recency requirement no longer applies, it's the highly likely standard. It's the likely standard instead of the recent standard. But you can argue for dismissal of the commitment at any time after you've been committed. But the standard, so to speak, is much lower because we're not arguing about a recent attempt at self-harm, harm to others, or an inability to provide the necessities of life, we're talking about the likelihood of that being a problem.
Jesse: So, the commitment process in Minnesota is still frightening, but the way that they delineate the process into multiple different, fairly clearly defined checkpoints, is actually a more comprehensive system than several of the other states that we've looked at.
Jim: I think they're like, setting a standard for what shouldn't be something aspirational, but is because everything else is so bad.
Jesse: And we'll have plenty of time to talk about how bad some of these systems can get because next time, on Committable, we’ll be looking at mental health laws in Iowa.
Jesse: Committable is produced by Jim McQuaid, Michelle Stockman and me, Jesse Mangan. All music is from the Song Reasonable by Christopher G. Brown.