1. Opinion

Column: It's time to talk about mental illness in our court system

Published Apr. 5, 2018

It is an unfortunate reality of our justice system that often the people who need help the most find themselves standing in a criminal courtroom instead of a medical professional's office. More than 2 million people with a serious mental illness are arrested and jailed each year across the United States.

According to a study by Psychiatric Services, rates of serious mental illnesses (that is, bipolar disorder, major depression and schizophrenia) are four to six times higher in jails and three to four times higher in prisons than in the general population. It is an issue that affects all people, not just adults. Of the nearly 500,000 children living in foster care, nearly 80 percent will experience a serious mental health issue. Barely one-fourth of them will receive any type of mental health service.

The Florida Bar's Special Committee on Mental Health in the Courts hopes to provide recommendations on how to improve Florida's laws regarding people in the court system diagnosed with mental health or substance abuse problems, as well as how to better educate lawyers on these issues.

The committee, formed in late 2017 with 13 members, has initiated a thorough study of the state's mental health laws to assist in drafting policy recommendations and to help educate lawyers and judges across Florida on the best practices for dealing with clients and/or other parties in the legal system who suffer from mental illness.

If successful, this committee should help provide better outcomes for people in the judicial system dealing with mental illness, and hopefully identify ways to reduce the cost and strain to Florida's already overburdened and overcrowded jails and prisons.

The committee is focused on drafting possible legislative changes to the Marchman Act and the Baker Act, two statutes that allow for involuntary commitment of individuals suffering from substance abuse and/or mental health issues. Both incoming House Speaker Jose R. Olivia, R-Miami Lakes, and incoming Senate President Bill Galvano, R-Bradenton, have indicated a desire to make mental health issues a priority. The committee will present its recommendations to the full Bar Board of Governors before the 2019 legislative session.

Among the changes being discussed are ways to expedite the Marchman Act process with a focus on protecting civil liberties to remove existing impediments so people can receive the help they desperately need. Right now, four hearings are needed under the Marchman Act before a patient can be ordered into treatment. Although still preliminary proposals, a potential solution to accelerate treatment involves slicing the number of required hearings in half, and if the patient received three prior adjudications for treatment, the screening hearing could be skipped. The committee, to ensure patients are well-represented, may also suggest allowing defense counsel access to treatment facilities, which is currently prohibited by law.

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In the wake of the Parkland shooting, the Bar's special committee also is reviewing the criteria for involuntary hospitalization under the Baker Act and firearm access and ownership by people diagnosed with a serious mental health illness.

Through the Baker Act, anyone who is involuntarily committed is placed on a federal registry designed to prevent them from buying a firearm; however, only about 2 percent of Baker Act commitments in Florida are involuntary.

Individuals who agree to a voluntary commitment still retain the right to purchase a firearm. And there is no provision currently on file for assisting judges and law enforcement officials in dealing with firearms already owned by people who are subject to an involuntary commitment.

Additionally, the committee is considering ways to better educate Florida lawyers about mental health and substance abuse issues. One recommendation is to initiate a series of attorney educational courses designed to show how mental illness affects not only our criminal justice system but every court division, from family law and probate to landlord-tenant disputes.

By enhancing education, recommending changes to existing laws and helping enact new guidelines, the Florida Bar's Special Committee on Mental Health in the Courts is poised to make a significant impact in Florida by providing a road map for improving the way our judicial system responds to and assists individuals who suffer from mental illness.

Michael J. Higer is president of the Florida Bar. Steven Leifman is an associate administrative judge for the 11th Judicial Circuit Court of Florida, and co-chairman of the Florida Bar's Special Committee on Mental Health.


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