The Advocate
Volume 22, No. 4, 
July 2000

PUBLIC DEFENDERS & PUBLIC ADVOCATES:
AN UNNECESSARY DICHOTOMY
by Thomas C. Glover

In July of 1999, I began to handle the 202A civil commitment cases at Western State Hospital for the Hopkinsville Trial Office. This was a new experience for me and was somewhat disconcerting. I entered a world with a language and culture that was foreign to me. In my criminal practice, I was always the proponent of a diagnosis of mental illness. Mental illness was like a safe harbor into which my client could sail and seek shelter from a raging storm. I had never questioned a diagnosis, which would permit a complete defense or at least mitigate a difficult case. My only questions had been for doctors who found my clients competent and responsible, when it appeared to all that the defendant was gravely ill. I entered every case in which the defendant engaged in bizarre behavior with a presumption, and even hope, that a mental illness was present. Therefore, when I undertook to defend civil commitment cases, I began with the assumption that my clients were likely to be mentally ill and need treatment. No one had ever told me that I would have to completely retool my personal approach to mental illness, to successfully represent my civil commitment clients.

When you first visit a locked ward in a mental hospital, you are overwhelmed with a sense of confusion, sadness, disorder and hopelessness. You see people in a clinical setting and you naturally assume that they need to be in the hospital for their own good. As a criminal attorney, you quickly conclude that your disturbed criminal clients should have been in this mental hospital and not prison. After speaking with your first patient, you believe that the humanitarian thing to do is to ensure treatment for your client. This is the source of the infamous "best interest of the client" standard, which often prevails in 202A hearings. There is no such standard in a civil commitment. Rather four elements must be proven beyond a reasonable doubt by the government as set out in KRS 202A.026. The government must prove:

  1. He can reasonably benefit from treatment;
  2. The respondent suffers from a mental illness;
  3. He presents a danger or threat of danger to self, family or others as a result of the mental illness;
  4. And hospitalization is the least restrictive alternative mode of treatment presently available.
Avoiding the "best interest of the client" standard is the greatest hurdle to be cleared by a novice attorney in this field, followed closely by a need to understand the role of Protection and Advocacy.

Protection and Advocacy (P&A) is a special division of the Department of Public Advocacy, which provides advocates to represent the interest of the mentally ill in Kentucky. While P&A has several in-house counsel, they also have advocatorial specialists who are not attorneys. P&A receives its funding primarily from federal grants and although every state has a federally funded P&A, Kentucky is one of only a few states that have placed P&A within the state government.

Placing P&A with the public defenders appears to be a logical fit on the surface, but it creates a natural tension derived from competing missions. Often a public defender does not want his client to go to prison and finds commitment to a mental hospital a far better alternative. A P&A advocate does not want his client warehoused in a hospital for years, misdiagnosed and drugged into oblivion. The tension arises when an advocate, who canít practice law, must rely on a public defender to attack a diagnosis and hospitalization, and the public defender is programmed to accept any diagnosis of mental illness with relief.

The challenge of retooling the approach of a public defender to handle 202A cases is not insurmountable.

I believe training should be set up for any attorney undertaking 202A representation, regardless of experience in the criminal realm, to sensitize them to the needs of the mentally ill and to educate them as to the differences in criminal and civil commitment practice. An experienced 202A public defender, a P&A attorney and several advocates should invest several days with the new attorney, providing intense training in the following areas:

  1. Procedure
  2. Substantive Law
  3. Medications
  4. How To Read A Medical Chart
  5. Compassion Fatigue
  6. DSM IV
  7. Forced Treatment
  8. Treatment Team
  9. Placement Alternatives
  10. Guardianship
  11. Jury Trials
  12. Making The District Judge Your Ally
  13. Timelines
  14. Best Interest Trap
  15. Social Workers
  16. Structure of P&A
  17. Mental Retardation At Mental Hospitals
  18. Utilization of P&Aís Services In Defense of 202A Cases
  19. Treatment Plans
This is by no means an exhaustive list, but it covers the majority of problems a new attorney will face. Never again should a DPA attorney be literally thrown into this arena and asked to survive by their wits alone.

This training challenge is not so great as it would appear. There are attorneys in Hopkinsville (Western State Hospital), Hazard (ARH Psychiatric Unit) and Lexington (Eastern State Hospital) who handle 202A cases on a regular basis. They would greatly benefit from the training, but only a handful of attorneys would need this training. The Louisville Public Defender System (Central State Hospital) has been very successful in their approach to civil commitments and could be brought in to aid in the training.

If through retraining, DPA takes an attorney and sensitizes him to the issues involved in 202A cases, we will solve the majority of problems that currently exist. By networking between P&A and the Trial Division, we can create a coalition, which will result in strong and effective representation. By an understanding of the unique perspective of both a criminal attorney and an advocate, the two can be brought together to form an alliance and thereby protect our most vulnerable clients.

Thomas C. Glover
Western Regional Manager
1100 South Main Street
2nd Floor, Suite 22
Hopkinsville, Kentucky 42240
Phone: (270) 889-6527
Fax: (270) 889-6020
Email: tglover@mail.pa.state.ky.us


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