Jesse: So, I think one of the things that we haven't talked about much is how mind numbingly boring it can be on a psych ward.
Jim: Yeah, there's just nothing happening, right?
Jesse: Yeah, during my last hospitalization, the big event that took days of preparation and negotiation was watching Disney's Aladdin in the common room.
Jim: Can you imagine you're in the psych ward for like months, you know that tomorrow is Aladdin day and then you get discharged, and you're like, God damn it!
Jesse: That is kind of what being inpatient felt like. It really, really sucks, so you're grasping for some small semblance of hope and just as you're figuring out how to survive this experience, when you figure out how you might be able to navigate this, that is when they push you to the curb and hand you the bill. Which is kind of like what I'm going to do right now with this intro, because what podcast is this?
Jim: This is Committable.
Jesse: Perfect. And now on to a whole new world…
Jim: Uh huh, Uh huh.
Jesse: …of mental health laws.
Jim: Nailed it!
(laughter)
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 looking at mental health laws in Iowa. And to learn more about those laws, I spoke with Frank Tenuta.
Frank Tenuta: My name is Frank Tenuta, I'm a managing attorney with Iowa Legal Aid. Iowa Legal Aid does a number of kinds of things, the biggest areas of law that we practice in are family law, primarily abuse, and landlord tenant housing law. Those are our two biggest areas. We also do a lot with government benefits and we, um, also look a little bit at the rights of people with disabilities. So one of my interests over the years has been people specifically with mental health issues and how the law impacts their lives.
Jesse: So mental health laws are different in every state, but the commitment process usually begins with some form of detention for evaluation. So I asked Frank, how does that detention for evaluation process work in Iowa?
Frank Tenuta: So, what has to happen to start a process is there has to be a filing by someone called an applicant. And that person has to have at least one other person, or a statement from a physician, or a person who provides mental health treatment services of some kind. So, it takes more than one person to do the commitment. Once that's filed, you know, there's allegations of what the reason for it is, there have to be some factual allegations. In Iowa, generally, essentially, you have to show that the person has a mental illness, it's impairing their judgment, so they're not making good decisions about treatment, and they're posing some kind of danger to themselves or others. So it has to be that dangerous, that's really a constitutional requirement. So once that application is filed, then the clerk takes it and forwards it to a judge who will review it.
Now, the system works differently in different parts of the state as far as what kind of judge reviews it. It can go to what's called a district court judge, which is the general highest level of trial court in Iowa. Can also go to an associate district court judge, which is a district court judge who has more limited jurisdiction. And then it could go to a magistrate or a hospitalization referee. And again, a magistrate is someone who has even more limited jurisdiction, they're generally part time judges. And a hospitalization referee, I don't even know if we've got any in Iowa anymore. They used to be very common, they're not as common now. That's a person who's an attorney who's just specially appointed to only do the commitment cases. So anyway, it goes to one of these judges and the judge will review it and then the judge has to make an initial decision about whether the person poses such a danger that they should be immediately picked up.
Now I believe that when the statute was written, the notion was that most people would not be picked up immediately, that that would be only the most extreme case and that other people would be told, you need to go for an evaluation and then we're going to have court on such and such a date. Which is usually a little bit down the line, they have to get two days, at least two days notice of the hearing and there may be a time limit but the hearings happen pretty quickly. But what's happened is, practically speaking, almost all of them are immediate pickups in Iowa now. At least that's my experience, and that's the experience of other people I've talked to. So, while not technically required for immediate pickup, that's usually done, and I guess in some ways it's understandable because you have to allege that the person is dangerous in order to get a commitment filing that's going to go past the, sorry, this doesn't meet the criteria initially. So it's quite common that the person is picked up and then they will be placed in some kind of hospital typically where they will be evaluated. There will be a report prepared and that will be submitted to the court at the time of the hearing.
Also, one of the other, to kind of backtrack because all these things are happening simultaneously. The judge, at the time that they make the decision about whether there's the immediate pickup, also schedules the hearing, there's an order that says when the hearing date is. And then, most importantly, an attorney is appointed to represent the individual. And so, that attorney will try to touch base before the hearing. How often that happens, whether they meet in person or by phone, probably varies a bit depending on the attorney and the time frame. But there should be some communication between the attorney and the person prior to the hearing. And then there will be the hearing at which a determination is made as to whether the case is dismissed or whether it goes forward.
Jesse: So in Iowa, like every state, peace officers can initiate an immediate detention of someone who they suspect meets criteria for an involuntary hospitalization. But in addition to that, there's also an application process where any interested party can go to a court clerk and fill out an application to have someone else detained for evaluation. The person filling out the application is referred to as the applicant, and the person being targeted for hospitalization is referred to as the respondent.
Jim: Okay.
Jesse: So the application is filled out then presented to some form of judge or magistrate. And if approved the application is sent to the Sheriff's Department and a Sheriff, or Sheriff's Deputy, is then supposed to notify the respondent that there is going to be a hospitalization hearing. And the judge who approves the application can also authorize an immediate detention of the respondent. In which case, when the officer notifies you of the hearing, they will also be taking you into custody.
Jim: Oh, that sounds miserable.
Jesse: The law does require that the judge consider having the respondent placed in the custody of a relative, a friend, or other suitable person instead of in a facility. But in Iowa, regardless of what setting you are being confined to during that pre-hearing phase, you are going to be examined by a physician or mental health professional, and that examination is supposed to determine whether or not you are “Seriously Mentally Impaired”. They have to determine whether or not you meet any one of the following criteria.
A. Likely to physically injure the person's self or others if allowed to remain at liberty without treatment.
B. Likely to inflict serious emotional injury on members of the person's family or others who lack reasonable opportunity to avoid contact with the person with mental illness.
C. Person is unable to satisfy their needs for nourishment, clothing, essential medical care, or shelter so that it is likely that the person will suffer physical injury, physical debilitation, or death.
D. Has a history of lack of compliance with treatment, and lack of compliance has been a significant factor in the need for emergency hospitalization.
So this criteria is unusually broad, and I have a lot of concerns about how it might be interpreted, but the part that really sticks out to me is the “Likely to inflict serious emotional injury on members of the person's family…”.
Jim: So it's likely serious emotional injury on someone else who isn't going to be in a position to escape from the person. It seems like that could turn into some real ambiguous guidelines, which is a problem across the board in mental health care and commitment where a person can really get committed for really basically anything. Under the right circumstances, with the right interpretation. So, any sort of ambiguity leads to more potential for abuse.
Jesse: Absolutely, and I suspect that this ambiguous language is not completely unintentional. It seems designed to allow for broader use of this involuntary detention authority. And while the detention process is often justified as a way of protecting the person who is being detained, in this instance the criteria specifically identifies the person suspected of being mentally impaired as being a threat to the emotional well being of others.
Jim: Yeah, I mean, this criteria specifically, likely serious injury on other people. I mean, that's explicitly, we are committing you in order to protect other people from emotional injury. Which, I mean, like, we're doing this because we expect you to harm other people. You haven't necessarily, but we expect you to, so we're gonna imprison you.
Jesse: Yeah, and at this point in the process a person has been pulled into this system, is awaiting their hospitalization hearing, and at some point before that hearing they are evaluated by a physician or mental health professional. So I asked Frank, how much impact does that evaluation have on the hearing?
Frank Tenuta: Right, so what happens is there's a report that needs to be prepared by a medical officer at the facility. That answers all these questions about if they have a diagnosable mental illness, it does happen occasionally that the person will get released immediately after the doctor sees them, if they think there's nothing there, but I don't know that that's real common. And also, I mean, I have to say that we don't do the actual representation in commitment hearings for the most part because of that right to a court appointed attorney. So, if I'm involved, it's usually after the fact when someone's committed and whatever, although I have done some initial proceedings as well. So I'm sorry I got sidetracked there a little bit, but yes, there'll be a report prepared for the court that will come to the court and then there'll be the hearing at which the applicant should be there to testify. The respondent, the person who's alleged to be mentally impaired and their attorney will be present. The court has the ability to keep that a closed hearing and limit who's there, it's also supposed to be an informal hearing. All over the place, at least in time and space that is over my career and across the state as to whether the hearing is actually at a courthouse, in a courtroom, in an office in a courtroom, in a office or separate room at a hospital. And a lot of that may be driven by how the local county or district assigns the cases. One other thing is that there has to be some input from the medical provider, and the code generally provides that the doctor or person doing the report should testify. My experience is that that's frequently waived because there's typically, probably a belief that, you know, if the doctor's report says something that's just what they're gonna say. Or they will testify by telephone. And in my experience, it's all over the map because the code does allow to waive the doctor's presence. So, That's going to come up to, you know, how the process works in any particular location is going to be driven by how it's always been done there, right? Just like anything else. So there's going to be quite a bit of variation there.
Alright, so we go through this process and we've gotten to the point where the court has decided, yes, this person meets the criteria. They lack the judgment to make good treatment decisions. They have a mental impairment. And they do pose a danger to themselves or other people. And then the order will basically be to commit them to a particular place for another period of time, like 15 days or something, and then there's supposed to be another report come back. But there's supposed to be these regular reports, depending on the limitation on the person's liberty, right? So some places are, you know, more confining than others, right? So like a hospital might be the strictest where they're on a locked ward. They might be in some kind of residential facility where they have more general freedoms, and all those kinds of things. So the commitment is supposed to be to the place that they need to be, and it can be adjusted as time goes on based on these reports that come back. Again, that's going to vary quite a bit from place to place as far as where the person typically goes for usually a little more intense treatment to begin with, and then maybe a more residential-like placement afterwards. The other thing that comes into play at this point is funding. Funding is a big driver of what level of services and types of treatment a person might get or not get.
Jesse: So at the point where a civil commitment is authorized, does the person who is under the civil commitment, do they have access or the right to an attorney during the civil commitment too?
Frank Tenuta: Once the attorney finishes that initial hearing, they typically are excused from further representation of the individual. At that point there is another person called a mental health advocate who is supposed to step into that role somewhat. Now, the mental health advocate typically is not an attorney, but it is someone who by experience and interest is concerned about people who are in the commitment process. And there's a whole association of them across the state and many of them have multiple counties, and they also have extremely high caseloads, and it's their job to try and keep an eye on people as they are in the process. So they do get something if the attorney doesn't stay on at that point.
Jesse: So a person is pulled into this process, either from some form of emergency detention or by someone filling out an application, which leads to an evaluation by a physician or a mental health professional. And the report generated by this evaluation is presented at the hospitalization hearing.
Jim: So, I wanted to talk about the doctor's report at some point. I don't know if...
Jesse: Yeah, go for it.
Jim: So there's a report produced by medical professionals, the hospital, psychiatrists, the doctor, that gets presented at the hearing and the expectation is that the doctor will also be there to testify. But the judge can waive the doctor's presence and the assumption, or the justification there is that the doctor is just going to say what's in the report. There is a massive problem there though, in that if they're not there you can't ask follow up questions. You can't ask for clarifications. You cannot offer clarifications. You cannot raise any points to try and point out that the doctor maybe acted unfairly, or misinterpreted, or misrepresented something. What if there are problems with the doctor's assessment? What if there is a doctor that is either not acting in good faith, or is acting in good faith but did not put the time and effort into the report that they should have? Or really didn't think things through, or possibly misinterpreted something? I mean, can doctors not misunderstand or misinterpret things that they witness? So, if a doctor reports that a person was, you know, really agitated because of a mental illness and the person could say, hey, wait, I was agitated because I'm a sexual assault survivor, and I had just had someone put their hands all over me because the police brought me in. Or yeah, I seemed really lethargic and out of it because I was asleep. Or they put me on medication that I'd never had, or whatever. The doctor never has to have their respective argument interrogated, or discussed, or questioned. The doctor is never in a position to defend their report.
Jesse: Yeah, to clarify though, if the clinician doesn't appear at the hearing the respondent and their attorney can still challenge what's in the report. But those challenges are going to be severely limited because as soon as you get to a question that only the clinician can answer, then that line of questioning might just stall out. And an additional element to these hearings is that the county attorney, so the attorney arguing for the commitment, the county attorney can ask that the respondent be removed from the hearing during any testimony that the judge determines is likely to cause the respondent severe emotional trauma. So someone can apply to have you detained on the allegation that you might cause them emotional injury, and then at the hearing where the applicant has to testify about that allegation the judge can have you removed because the judge believes that hearing that testimony might cause you severe emotional trauma.
Jim: The possibility for abuse here is just really pretty, pretty huge.
Jesse: And that is supposed to be why these legal checks exist, why there is a civil commitment hearing. And if the judge does decide that you need to be committed, then the hospital is supposed to send the court periodic reports about whether or not that commitment needs to continue. So my next question for Frank was, with each one of these periodic reports, do you also get another commitment hearing?
Frank Tenuta: The simple answer is no, um, but there's a little more complicated answer. And actually, before we get to that, I'm going to sidetrack you again just a little bit, because a person who's been committed does have a right to appeal.
So, uh, depending on if there's a lower level, like if it's a magistrate or hospitalization referee, they get appealed to a district court. If it's straight in district court or associate district, then the appeal is to the Iowa Supreme Court. And then, of course, someone who appealed from a magistrate to the district court, they can still appeal to the Supreme Court after that. So there is an appeal process. It's rare to have something overturned on appeal, would be my experience. Okay, putting that aside, back to this ongoing process, and this is actually related to this idea about where someone gets stuck and how funding comes into play. So a number of years ago, there was a situation where an individual judge ordered someone placed to a particular place and the funder refused to pay for it. And so there became this whole stalemate, which actually wound up in federal court with a successful summary judgment motion in favor of the committed individual against the county and the state requiring that they have something that solves this gridlock thing. And essentially what then happened was we put into place, in Iowa here, a procedure whereby someone can challenge their placement. So when they get placed, these reports come in, it may say they need to continue to stay here, or it may say we want to put them in a different place. The individual who's committed should get a copy of a notice which says, this is the report, if you want to challenge your placement, you can request a hearing. Or the judge, when they look at things, can do a placement hearing. At the placement hearing, then there should be input, you know, from the medical providers and the fiscal providers. And then the judge makes the decision saying, okay, this person needs to go here, even though the fiscal people don't want to pay for it, or you know what this alternative by the fiscal person after we talked to the doctor again, this one will work so we're going to go there. So that's how it's supposed to work. They would get, uh, or can get a court appointed attorney again for that placement hearing, and, you know, sometimes those come up because the person has contacted an attorney and they're not happy with where they are and the attorney's already involved and starts the placement hearing. How common these hearings are? I really couldn't tell you. My experience is that they're probably not as common as they should be, and people frequently get these notices and don't understand them. Or The people who are trying to look out, you know, like relatives or friends don't get the notices or don't understand the process or whatever. The mental health advocates are overloaded, nobody can keep an eye on everything and sometimes people just don't, you know, they get a little bit lost in the system I would say.
Jesse: Okay, so if at the hearing the judge determines that you do need to be committed for treatment, then the chief medical officer at the facility where you're being detained has 15 days to send the judge a report on whether or not you need to continue to be detained. After that, the chief medical officer has to periodically send additional reports to the court, but these additional reports do not guarantee additional hearings. You can however ask for a placement hearing. Which basically allows whatever entity is responsible for paying for the commitment, whether it be the state, or the county, or Medicaid, or a private insurer, this placement hearing can bring the funder into the process and provide them with an opportunity to say whether or not the placement is appropriate. So, I asked Frank, at these placement hearings, can a funder actually seek to have the patient released?
Frank Tenuta: Well, unfortunately the history of that is that people, in my opinion, were more interested in getting funding from other sources than necessarily figuring out what was the best placement, okay? So I've been involved in this stuff for years, right? When I started there were mental health institutes, you know, big buildings with many people who are committed in them. We had one in the area close by where I'm at, and that's how I actually got somewhat interested in this, because we got a lot of contact from people who said, I want to get out. You know, over time, probably three things have led to much less institutionalization, right? One is the law, the rights of people who've been committed, especially in the seventies, really expanded and saying, oh, these people have rights not to be locked up unless they're really dangerous, et cetera. Two was improvement in drugs. And three was the cost of institutionalizing people. So those factors early on in my career had an effect of trying to get people out of institutions, and I think a positive factor. But you still have these situations where funding comes into play, and I still hear about some of these around the state. We used to have county funding. We then went to something called regional funding, where the counties were together in regions and the money was still local. Now, just recently, we've changed the funding again, they still have the regions that do kind of the funding decisions, I guess you would say. I mean, it's very technical, way beyond what I can even understand sometimes. And then now they're basically shifting towards more state funding, still using the regions. I generally think that that's been better for people because the smaller the pool of funds, i. e. at the county level, the more difficult it is. Because the counties, they only have so much money, what are they going to do? Right? And so, you know, there was this impetus and this was this case I mentioned to you earlier that what happened was the county didn't want to have to pay, and if the individual was in a nursing home then federal Title 19 would pay. But the individual's needs were more than the nursing home could handle. He was actually posing a danger because of his mental health issues. So he wound up going to the hospital on an emergency basis, so he's on a locked ward in the hospital. Everybody said, OK, we got this other placement, this is where he should go. The county basically didn't think they should have to fund it, so they refused to fund it, and so he was stuck in a hospital. Ironically at a much higher cost than the appropriate placement. Because the fight was about who would pay, not what was the best place, and not what was the cheapest funding, which it turned out that those two things actually coincided in that particular case, right?
So that's how we got into this law that I said about having these hearings for placement and things like that, where those things should be looked at. How much that's really done on an individual basis? I can't say because I'm usually, you know, I'm not as involved in these as I used to be. And it's usually if someone's got a complaint about something, they let me know. I hear from the hospitalization advocates, the mental health advocates, sometimes with some of their frustrations. So got off on a tangent there again for yourself.
Jesse: So at this point in the civil committment, uh, is the general process that the person who has been committed is just waiting for some medical professional to approve their release?
Frank Tenuta: Yes.
Jesse: Okay.
Frank Tenuta: Yeah, that's the typical situation is then that, you know, and it's at each level, right? So if the person is actually in a hospital, there'll be a report saying this person can be released to this residential care facility, for example. And then they will, you know, unless they object, which there could be a hearing, but then they'll go there. And then again, it's going to be driven by the report. At some point, the doctor may say, Okay, based on all of this, or the chief medical officer of the facility, which a lot of these facilities they don't really have a doctor who's on staff with them. They have a doctor like a lot of the nursing homes, right? That is responsible maybe for multiple nursing homes or they have a side practice and they also do the nursing home. Anyway, at some point, there should be a doctor assigned to that person and then they will make a report that says, okay, we're going to move this person into their own apartment now. And hopefully there's the services in place to try to move them on. And you know, the nice thing is that typically, the more freedom someone gets, the less expense there is. So, there is that kind of push to get them there. And it's not always quite the case, and again, you always have this, who's going to fund this issue that comes into play. Which can kind of be a snag along the way.
Jesse: Okay. So as we wrap up the episode, there are two other aspects of Iowa's mental health laws that I think people should know about. The first is that Iowa will consider a court order for treatment from basically anywhere else in the U.S. as a valid court order in Iowa.
Jim: Wow, okay.
Jesse: And the second thing that Iowa does which I think people should know about, is a commission of inquiry. Which is essentially a form that anyone can fill out challenging a commitment. So while pretty much anyone can fill out an application to have you involuntarily hospitalized, pretty much anyone can also fill out a commission of inquiry challenging that hospitalization.
Jim: Can I say one thing that I think was good about Iowa?
Jesse: Oh yeah, sure.
Jim: So the fact that people can, what was this, before the hearing be left in the custody of family or friends?
Jesse: Yeah, pre-hearing, the initial judge can have someone detained in the custody of a family member, friend, or other suitable person.
Jim: So what we're dealing with, when we look at any given state, we're looking at a regulatory framework, or a system of laws and a mental health system, and institutions, and things that were not built intentionally, right? I mean, they were structured in response to, you know, someone takes an interest in the system, or there's a crisis in the system and they add a law, or they change funding guidelines or whatever. And it's very piecemeal and haphazard and kind of ad hoc. And so you end up with these systems that end up just operating sometimes in bizarre ways, potentially, or ways that are potentially harmful or whatever. But one of the advantages of going state by state is you can kind of identify like, okay, here's a good thing that Iowa does. Even if a lot of what else Iowa does is terrible, but like, in Iowa, people are left in the custody of family and friends, and it works out fine. Right? And in other states that's not happening but, you know, we have these examples of people being left in the custody of family and friends and not being taken in by the police and it's not leading to these horrific circumstances. So, there's a lesson that if we are going to go out there and we're going to build a dream, ideal, mental health system we can still look at Iowa and say look, they do this one thing and we can incorporate that into our perfect system.
Jesse: I don't know that a dream mental health system would have any form of involuntary confinement, but given the practical reality of where most mental health laws are at right now, yeah, being detained at the home of someone who knows you and cares about you definitely seems more appealing than being detained in jail. But there are also a lot of aspects to Iowa's mental health laws that are really concerning.
Jim: Oh, everything else is going right in the garbage.
(laughter)
Jim: But this one thing, thanks, good job.
Jesse: Well, there will be plenty more opportunities to find things that we want to throw in the garbage because next time on Committable, we'll be looking at mental health laws in Ohio.
Jesse: Committable is produced by Jim McQuaid. Michelle Stockman and me, Jesse Mangan. All music is from the song Reasonable by Christopher G. Brown.