6
of the availability of alternatives to hospitalization, simply indicate that there are no alternatives available. The
code reserves to counsel adequate time to investigate matters at issue, including alternatives to hospitalization.
21
Thus, the attorney who is representing a client who faces hospitalization, but who is willing to accept some
alternative to that hospitalization, must develop his or her case for an alternative to hospitalization. Preparation
should include a complete review of the client’s file at the community mental health services program and
interviews with mental health professionals who have been providing treatment, including therapists, case
managers, psychologists, and psychiatrists. If these interviews cannot be conducted by agreement with the
prosecuting attorney, the court-appointed counsel must use depositions and other forms of discovery.
Another means of exploring the issue of alternatives to hospitalization, as well as contesting the conclusion that
the client is a person requiring treatment, is by seeking the appointment of a physician or psychologist as an
independent expert. This is a right guaranteed under the mental health code and must be paid for at public expense
if the client is indigent.
22
Attorneys should note that the request for an independent clinical evaluation must be
made before the first scheduled hearing.
23
Attorneys who regularly represent clients in civil commitment proceedings should try to gain some sense of the
medical community in which they are practicing and identify those psychiatrists and psychologists who will do a
good job in evaluating clients subjected to civil commitment. Specifically, the attorneys should become aware of
those psychiatrists and psychologists who have come to the hospitals, spend considerable time, and who give a
thoughtful assessment both regarding whether the person truly requires treatment and whether alternatives to
hospitalization should be available.
The attorney must also explore with his or her client the right to request a jury trial.
24
It is the right of the client to
request a jury trial, which may, on occasion, be an effective way to secure the dismissal of the petition or
application.
Finally, the attorney must explore with the client the possibility of a deferral. A deferral meeting must occur
within 72 hours after the petition and clinical certificates have been filed with the court. The meeting is to be held
between the attorney, the treatment team member from the hospital, a representative of the community mental
health services program, and the client.
At the deferral meeting, a hospital representative is to present a proposed plan of treatment. The attorney should
discuss the nature and possible consequences of commitment procedures. Alternatives to hospitalization should be
discussed. The respondent has a right to request that the hearing be temporarily deferred. During the period of
deferral, the respondent agrees to accept the plan of treatment in the hospital or in the community. This will be
treated as a formal voluntary admission. If the individual chooses to later reject the treatment plan, a hearing will
be scheduled.
A deferral of the hearing differs from two other options that are available to the client. An individual may waive
his or her right to attend the hearing or he or she may stipulate to the petition. In either case, the entry of an order
of involuntary treatment is almost inevitable.
Having interviewed the client thoroughly and arrived at a trial strategy, the attorney must then begin to implement
the trial strategy. It should be noted, however, that many of the strategies discussed above (requesting a jury trial,
requesting the appointment of an independent clinical examiner, and extending discovery to explore alternatives
to hospitalization) can all result in a delay in the hearing, during which the client typically remains hospitalized.
The attorney should review that reality with the client. The attorney should also note, however, that the hospital is
under an obligation to discharge an individual who no longer meets the status of requiring treatment.