If your client is mentally ill, and poses a threat to himself or others, what are your options? What can you do? What should you do? Here is one story out of my rather extensive experience in working with mental illness. My client, pseudonym Luke, has given me written permission to discuss his case, provided I do not use his real name.
Last summer Luke began threatening to shoot and kill officers of the Anchorage Police Department. He made a series of threatening phone calls to APD. He put his threats in writing, in e-mails to me.
Luke had come to me about a year before this, for help with his claim for Social Security Disability. He had suffered from serious mental illness for over twenty years. He’d traveled widely, earned a B.A. in psychology and seemed very intelligent, explaining that much of the time he knew how to manage the illness. Sometimes he was well enough to hold a job for a while. But then, every few years, he’d go off the deep end.
He’d had Disability benefits once, but was cut off when he left the country to live in the jungle for a while. He’d also lost medical coverage, so he could not afford his meds.
I explained that the wait time for Social Security appeals was two years, from denial of the claim to the date of hearing by an administrative law judge.
Luke could not wait the full two years. He made it to eighteen months before losing it.
I ignored the first e-mail because I was on vacation, but when the second and third messages arrived, I decided to act. But how? The last I knew, the duty of confidentiality was absolute, no exceptions. This was before Tucson, but after Virginia Tech.
To my knowledge, Luke had no near relatives to consult. So I consulted the intrepid Steve Van Goor. Bar Counsel introduced me to the new Rule 14.1, which provides that when a client suffers from impaired capacity, “the lawyer may take reasonably necessary protective action.” That is, action to protect the client, not the public.
Commentary for Rule 14.1 warns:
- Disclosure of the client’s impaired capacity could adversely affect the client’s interests…. The lawyer’s position is such cases is unavoidably a difficult one.
I decided to call the cops. Luke was scaring people in public offices, and when I met with him, he scared me. He didn’t mean to, but he was psychotic.
APD dispatch was unconcerned. Officers were busy with more than threats. I was surprised by the lackadaisical response. I declined the offer to send an officer around sometime to take a report.
Two days later I walked into the Anchorage Police Station on Tudor Road, where I was taken seriously by two officers who informed me that Luke had been making threats to Social Security as well as APD. Thus, the critical question: is he dangerous?
My answer: he could be. I credit myself with some expertise in making an assessment of the threat level posed by a person in the grip of psychosis. I ask: Does the individual scare people? When I met with him, Luke had scared me. APD officers were not frightened by Luke’s threats, but obviously they do not scare easily, and they are armed. My recommendation as his lawyer: pick him up.
Three days later, they did. Because of the threat to Social Security, Homeland Security got involved. Luke was arrested, not without incident, and spent several weeks at the Alaska Psychiatric Institute, where he returned to sanity. Ultimately, he was charged with one federal misdemeanor: attempt to interfere with administration of the Social Security Act.
When Luke appeared in U.S. District Court, federal authority weighed in on quite a scale. Chief Judge Beistline presiding, Thomas Bradley for the Government, Rich Curtner, Federal Public Defender, for Luke, Scott Waters, U.S. Probation Office, at bar; and in the peanut gallery, an Inspector, Region X, North Command, U.S. Department of Homeland Security, and the Director of the new Social Security Office of Disability Adjudication and Review (ODAR) in Anchorage. Plus yours truly, presence requested by the defendant and no one else.
Nobody recommended jail time. Discussion centered on conditions of probation.
Judge Beistline expressed a fair amount of indignation and outrage at Luke’s pattern of behavior. Luke interrupted His Honor’s remarks half a dozen times with apologies and assurances that it would not happen again.
The central question: how can Luke’s future compliance with treatment and medication be ensured, for the protection of the public?
The decision: Five years probation. Luke will see a psychiatrist at the local community mental health center on a regular schedule, and take meds as directed. His attendance and compliance with treatment will be monitored by the U.S. Probation Office for five years. If he fails to comply, he will spend a year in a federal prison.
“A ray of sunshine,” says a psychiatrist at the Alaska Psychiatric Institute. Luke receives a minimum sentence, but his compliance with effective treatment is enforced. He is not left to go it alone. I thought it was a good result.
Luke’s appeal for benefits was heard at Social Security’s new Office of Disability Adjudication and Review in Midtown, and his claim was approved. He is covered by Medicaid, and after two years, Medicare. He can afford his meds.
How does Luke see all this now, almost a year later? As to my involvement, he is grateful. He says he wishes someone had intervened sooner than I did.
As to the court’s reaction, he is not complaining, but he is not happy about it either. Luke feels that the crux of the problem was his uninsured status. Even the low-income clinics demand a fee of $15 to see a doctor, and shut out patients who have run up a bill. And he had no money for medications. If he had had access to medical care, he would not have lost his mind. Now he has a criminal record.
I believe that our nation’s failure to provide adequate access to health care is ridiculous, stupid and destructive to society, but I’m not sure that universal health care would have prevented Luke’s decline. I think that oversight by the court is probably necessary when an individual makes homicidal threats all over town.
A person in the grip of psychosis does not have control over his thinking or his feelings. If he has years of experience in dealing with mental illness, he may be less likely to turn violent. A younger person who has not developed intrinsic values prohibiting violence, is more likely to snap, as in Virginia Tech and Tucson.
In any case, the responsible course is probably to call in law enforcement. Your client will be taken to a hospital for evaluation. If you are wrong about the potential danger to self or others, your client will be released from the hospital within 72 hours, and pursuant to AS 47.30.815(a), you cannot be held liable. If your client does pose a danger to himself or others, you are doing him a service when you make the call.