There are no easy decisions when judges are determining whether someone experiencing a mental health crisis should be held at a hospital against their wishes.
“It’s always hard,” said Judge John McHale, one of three judicial officers devoted to presiding over cases in King County’s Involuntary Treatment Act court.
In some ways, the proceedings in McHale’s courtroom look like any criminal trial: There’s a judge, a prosecutor and a defense attorney. But the person whose future is at stake is not accused of a crime.
“It’s somebody whose only crime is being mentally ill,” said Guin Raikes, who works as a public defense attorney in ITA court in Skagit County.
Instead, the court is tasked with determining what’s best for someone’s health: temporarily taking their freedom away or allowing them to exercise their own choices, which may mean no treatment at all. It’s a complex and unique dynamic for those whose job it is to debate these cases.
King County’s ITA court handles approximately 1,300 cases each quarter, most of which are filed by hospitals and concern adult patients with mental illnesses. Not all cases go to trial; people may agree to treatment or a case can be dropped if there’s not enough evidence. In about a third of cases, a judge decides to commit an individual.
ITA court can be an emotional and overwhelming process.
People “have to sit there, be patient, and listen to witnesses testify about things that are very personal,” said King County Senior Deputy Prosecuting Attorney Anne Mizuta. “It can be difficult and traumatizing for them to hear, especially in a public forum.”
How it works
In ITA court, a Superior Court judicial officer considers evidence from prosecutors, who represent the hospital, and defense attorneys, who represent the patient. They present information about the mental state of the person in crisis: whether they’ve stabilized or have access to enough support to be discharged, or need to be further detained.
In Washington, people can be held involuntarily for three reasons: if they pose a danger to themselves, pose a danger to others, or they’re deemed “gravely disabled,” which suggests they’re neglecting to care for their own basic needs or have deteriorated to such a state they’re in grave physical danger.
McHale has to protect the health and safety of people within the community and the person in crisis while not unnecessarily overreaching to temporarily remove someone’s civil rights.
Mental health care can be hard to find in the community: Often the only way people get help for serious mental health concerns is through the court system. But McHale has to judge each case based on the narrow rules of law, even knowing someone might not get care if they’re released.
“Sometimes I’ll find someone is profoundly mentally ill, but there’s no evidence that they’re a substantial risk of harm to themselves or others, or that they’re gravely disabled,” McHale said. “Because they don’t tick that next box, I have to deny the petition and let them out.”
“I’ll often worry over the weekend that things may deteriorate, and something could lead to [a substantial risk].”
Prosecution’s role
By its nature, the ITA court system is adversarial. However, the process is different from any other kind of legal proceeding because “we’re all here to care about the patient,” Mizuta said.
“Prosecution is looking at a caretaking function, almost like a parental role for a patient — making sure they are safe and have the best opportunity for stabilization,” she said. “Defense is coming at it from the preservation of the patient’s rights and giving their voice a place in the process.”
People can initially spend up to five days in forced treatment, and an ITA court judge determines whether to order an additional 14 days, with further extensions of 90 and 180 days if needed.
Today, ITA hearings largely take place over Zoom, though hearings are in person in some corners of the state. In King County, a patient is in their hospital room along with a court evaluator, a mental health professional who provides their understanding of the patient’s diagnosis and their observation of symptoms.
Ahead of the hearings, Mizuta said, prosecutors are constantly looking at the evidence and checking with medical staff to determine whether they should continue pushing for involuntary commitment. They’ll ask: “Does this patient still meet criteria for involuntary treatment? Is involuntary commitment still the appropriate treatment recommendation or should it be discharging to a less restrictive treatment alternative?”
Sometimes prosecutors will find that the patient has community support, like a friend who will allow them to stay in their home and take them to treatment, and drop their case.
Before the trial, the prosecution interviews people who know the patient. That can include hospital social workers, police officers, behavioral health case managers, housing case managers, family and friends.
Mizuta said prosecutors are cautious about which witnesses they call at the hearing to protect the patient’s relationship with their loved ones. A patient’s spouse has a right not to testify.
“We try to avoid burning that bridge and having those relationships be put in a tenuous state where patients may feel that friends or family are testifying against them,” she said.
Family members and friends may not fully understand the severity of the patient’s illness, Mizuta said. At the hearings, as politely yet effectively as they can, prosecutors cross-examine that family member or friend to provide more evidence for why a patient should continue hospitalization.
Preserving relationships is crucial because loved ones can play an important role in providing support after the trial or hospitalization. People often will still need medication and intensive therapy: Involuntary holds are meant to help regulate someone to get them safe enough for discharge.
Defense’s role
While the prosecution may view their role as parental, someone forced into treatment — and the defense attorney representing them — may argue it’s paternalistic.
Nathan Bays, special counsel for affirmative litigation and policy in King County who previously defended clients in ITA court, said a public defender’s role is to advocate for the person who is the subject of the proceeding.
“The civil commitment process can be a really traumatizing experience,” he said. “[People are] being told, ‘This is what we think is best for you,’ and they may feel very strongly that it’s not best for them.”
Bays said they can talk through alternative options, like arguing for a seven-day commitment instead of 14 days. “But ultimately, it’s the client’s decision” whether they want to oppose hospitalization. “We are never placing our own personal beliefs or preferences over the desires of the client.”
Raikes, the public defense attorney in in Skagit County, said her job can be tiring and difficult. Some of her clients are elderly and have co-occurring conditions like dementia. Many lack housing.
This summer she reached a breaking point and moved to focusing mostly on felony cases. “There have been so many cases and some of them are really hard,” she said. After working on two difficult cases back to back, she “was quite upset at humanity,” she said.
She’s also faced some ethical gray areas: Conversations with clients are confidential, but some have told her they intend to harm themselves once they’re released.
“I think most of the people who come in need mental health help. I don’t think most of them should be involuntarily committed for as long as they get held there,” she said.
It’s important that people in ITA court have a right to a defense attorney, because they lose certain freedoms as a result of their mental health crisis, including the right to possess firearms, until a court restores it. Some may fear losing housing or employment opportunities.
“It’s one thing to say, yes, they need help. But it’s another thing for us then to take that next step and take their civil rights away,” said Margo Burnison, program manager for ITA Court in King County.
At ITA hearings, defense attorneys can cross-examine witnesses and find places where somebody may be improving. A public defender may argue their client has already been held for five days, has been taking their medication, and is showing signs of improvement.
McHale said despite the deeply personal nature of what’s at stake, court proceedings can feel cold.
“You’re going to hear things you disagree with, or that you don’t want to hear,” he tells the person at the center of the proceedings. “And you just have to keep in mind, you’ve got a good lawyer representing you on your side.”
Cracks in the system
The ITA court provides an opportunity for the hospital to argue that an individual should be detained to get psychiatric treatment; for the patient to make a case against involuntary hold; and for a judge to make a final decision.
But “the great fault in this overall system,” McHale said, is the broken promise of community-based mental health care. If there were more case managers available to check in on individuals, to ensure they were seeing their specialists and taking their medication, “that would make a huge difference and I think keep a lot of our cases from coming to us,” he said.
Instead, he often sees the same names reappear on his calendar.
“You’re seeing that person has improved with their medication, and they’re doing well, and you want to think that it’s smooth sailing and great living after that,” he said. “But then you get the calendar, and you see that name at the top of the calendar.”
