I went to law school to protect the constitutional rights of vulnerable minorities. My first pro bono case protected a mentally ill inmate. My heart aches for those who suffer from mental illness. We must do better.
Since the earliest days of our nation, we have failed people with mental illness. We treated his illness as a religious or moral defect. We stigmatize and demonize them. People were locked up in asylums, often for life, without effective treatment or legal recourse.
Things began to look up in the middle of the 20th century. In 1975, the Supreme Court ruled that mentally ill people cannot be hospitalized against their will if they are not dangerous. The judicial system now assumes that everyone has decision-making capacity and that no one should be treated against their will unless they are shown to be “imminently dangerous to themselves or others”.
A significant problem arises when mental illness (or substance abuse) destroys a person’s decision-making capacity, so that they can no longer understand treatment options or make decisions for their own preservation. We see them living on our streets in very unsafe conditions, because they are not “imminently” dangerous to themselves or to others.
Some argue that homeless people with mental illness should be allowed to live on our streets without restrictions or treatment, because they “choose” to be homeless and “choose” to refuse treatment and shelter. Often, however, their severe mental illness results in a lack of decision-making, so their “choice” is a direct product of the illness rather than an informed decision.
These disabled people have a legal right to appropriate medical treatment to alleviate their suffering and restore them to higher levels of functioning. Unfortunately, it takes a lot of time, money, and effort to bring each person’s treatment needs to court, so this rarely happens. As a result, these people often deteriorate and die on our streets.
We need to improve our laws so that courts can immediately provide guardians or similar protections for people who no longer have legal capacity to make health care decisions. Then someone can help make decisions that would be in your best interest. Our legal system must provide earlier intervention to authorize appropriate treatment and support services as needed to truly help these disabled people.
Fortunately in Hawaii, our laws are slowly improving. Previous procedures involved substantial delays, months of waiting for a treatment order, during which patients lost limbs or even lives. Now there are more options. But more can still be done with the strategic partnership between the judicial and health systems.
We seek your support for these bills that can help our legal system work better:
>> House Bill 1155 and Senate Bill 982 – Make improvements to further expedite “community assisted treatment” orders.
>> HB 1156 and SB 916: Make enhancements to expedite “treatment orders” for inpatient objections.
>> HB 1154 and SB 915: Expedite guardianship orders for individuals lacking decision-making capacity in psychiatric facilities, hospitals, and homeless shelters.
Together we can help our neighbors in need.
Ellen Godbey Carson is a retired attorney and past president of the Hawaii State Bar Association, Hawaii Women Lawyers, Hale Kipa Institute of Human Services and Youth Services.
