Testifying in Mental Illness Court

From T.K. Wolff, M.D.

The purpose of this memo is to prepare the physician to testify in mental illness court.

An important part of inpatient psychiatry has to do with the legal status of the patient. Patients can be admitted to inpatient units two ways: voluntarily and involuntarily. Involuntary patients can be admitted under two different types of status: on an order of protective custody (OPC) or after being committed.

State law requires that within 14 days after an OPC has been filed, a patient has the right to have his or her case tried in court1.

For a case to be tried an OPC must be filed and there needs to be a second physician's opinion also filed. These documents must be filled out completely, signed, dated, and signed and dated by a notary. One of the two physicians who filled out and signed the forms must testify in court if the patient contests the case. As of March 24, 1999, in addition to state licensed physicians, physicians with institutional licenses (which the psychiatry residents @ UTSMC have) may testify in court2 . The current Assistant District Attorney, Ms. Melanie Barton, has agreed to allow psychiatry residents to testify—as long as they have been treating the patients and are fully familiar with the patient.

The mental illness courtroom currently is at 7920 Clodus Fields Drive, just next to Green Oaks Hospital (near the intersections of Interstates 635 and 75). Court days are Tuesdays and Thursdays usually starting at 9 am. Orders for Court-ordered administration of psychotropic medication will be decided the same day(which can be done only after a patient is committed). If the court order is approved by the judge, then medications can be administered (orally or I.M.) to the patient without their consent3.

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1 In some circumstances (such as a severely medical compromising condition}, a patient may be re-OPCed to delay trial.

2 House Bill 677 from the 1999 Texas State Legislature

3 Note: a patient always has the right to voluntarily take medications whether committed or not. Also, medications can be administered without the order if there is imminent danger (i.e. threatening) to the patient or others.

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In general, the purpose of civil courts is to solve disputes. In Mental Probate Court, the dispute is whether the patient:

  1. Has a mental illness and
  2. Is at risk such that he or she:
  1. is an imminent danger to himself or herself

and/or

  1. Is an imminent danger to others

and/or

3.Is having a rapidly deteriorating course which is placing him or herin danger

It is the responsibility of the District Attorney to prove this to the Judge or Jury. The key to the case is the expert testimony of the physician. In addition, testimony by the patient's family member or others who have observed dangerous or deteriorating behaviors may be used.

The defendant (patient) and his or her lawyer (usually court appointed) have no obligation other than respect the rules of the court. Basically, the defendant is considered not committable until proven otherwise. Usually, the defense is based on weakening the testimony of witnesses (for example, the physician testifying) for the district attorney and, if the patient wishes or seems to be doing well enough, the testimony of the patient.

The Judge's role is to ensure that the procedure and decorum in the court are according to law. This includes ruling on objections by either one of the lawyers and the admissibility of evidence. Once both sides have presented their cases, they make or waive final argument. In most mental illness cases, the use of a jury is waived, and the Judge actually rules on the case. Just as the jury would be instructed, the Judge weighs the facts as they pertain to the law and renders a judgment (either commitment or dismissal).

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By protocol, the district attorney presents the case first, usually starting with the expert witness (the physician).

After starting your name, the attorney will ask about your credentials4. You need to be prepared to provide information regarding:

  1. Your educational background with locations of the schools
  2. Current educational status.
  3. Whether you are an M.D. or D.O.
  4. Your licensing status/institutional permit (with documentation that it is currently effective)

The defense lawyer tries to show weaknesses in the case by focusing on:

  1. The diagnosis—is it actually a bono fide psychiatric diagnosis, how was it made and how were other diagnoses (especially less severe) ruledout.
  2. Was the evaluation of the patient comprehensive (especially what did the patient say about the history/acts and how collateral information was verified)?
  3. What evidence is being used to show that overt acts were dangerous and/or why the person would not be able to care for himself or herself?
  4. Focus on how testimony is hearsay rather than fact

Common questions asked to the expert witness:

  1. What were the legal circumstances and acts that brought the patient to the emergency room?
  2. What was written on the APOWW?
  3. What happened in the emergency room?
  4. How many times has the patient been secluded (ER and on unit)?
  5. How many times has the patient required emergency medications?
  6. Is there any documentation of the patient actually attempting suicide or harming anyone else and what has the patient said about theses attempts
  7. What medically could happen to someone not caring for himself or herself eating/drinking/personal hygiene)?
  8. What have been the observations of the patient on the unit?

4 Physicians who have testified multiple times may have this process stipulated by both lawyers and this material is not reviewed.

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  1. How many times has the patient refused medications; what happened afterwards?
  2. What do you think would happen to this patient is he or she was released in the current condition?
  3. Why do you want this patient to go to Terrell instead of staying at Parkland?
  4. Why could this patient not go to a less restrictive place, like Crisis Residential?

Keys to being a good expert witness include:

1) Being well informed about the patient

2) Having already anticipated the difficult questions

3) Not being emotional or taking offense at questions

4) Being honest, consistent, and confident

5) Answering the questions without being circumstantial or deviating

8/13/01 TKW

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