Legalese — Mental Illness, Incapacity, and Delinquency

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Many years ago, I worked as a prosecutor for the DeKalb County Juvenile Court. In that capacity, I saw all manner of sadness and tragedy, and wrestled with a great number of moral conundrums. Some of the most difficult situations we faced were when a juvenile committed a delinquent act (which is a crime committed by someone under age) and who was also mentally incompetent, either because of a low capacity or a mental illness.  We never knew what to do with those children.  On the one hand, they couldn’t stand trial for what they had done – they truly did not understand and were not competent to stand trial. On the other hand, they were dangerous to the community. They were sometimes violent, perhaps self-destructive, and often pawns of legitimate criminals who could convince these poor children to do their bidding.  As a prosecutor, it was often difficult to weigh the needs to the community to be protected against the rights of that individual.

When I worked in the Court, there was very little we could do for those children.  Thankfully, the law now has more provisions to provide treatment. O.C.G.A. 15-11-450 says that when there is a child “who has been alleged to have committed a delinquent act is unrestorably incompetent to proceed and the court orders that procedures for a comprehensive services plan to be initiated, the court shall appoint a plan manager…to direct the development of a comprehensive services plan for such child.”

What this does, as a practical matter, is put together a committee of people with information and the skill set to help. Those people include the child’s parents, attorney, the prosecutor, a guardian ad litem, mental health professionals, caseworkers, teachers, and family members who have demonstrated interest and involvement.  Service providers may also be included in the team meetings.

The plan manager, who is in charge of the whole show, and who may be a probation officer or DFCS worker or someone like that, first collects information about the child, including any evaluations, school records, and assessments. Then, within 30 days of the Court Order, the group meets and puts together a plan.  The plan should include:

1.       How the child will be protected, and how the community will be protected from him or her;

2.       How the child will be treated, where he or she will live, and how this will be supported, all in the ‘least restrictive environment;’

3.       If there is to be inpatient treatment, there must be a certification that the child is mentally ill or developmentally disabled and meets the criteria for civil commitment, and a further statement that all of the community options have been exhausted. (More on this later)

4.       A list of who is in charge of making what happen.

This is a vast improvement over the previous options which were to just wish everyone luck in the future.

So, remember up there a few lines where I said “More on this later”?  Now it is later, and I’m going to venture into the world of opinion, which I don’t usually do in this column, because I think that there is a real need for reform of this area of the law.  Think about this: “all of the community options have been exhausted.”  That sounds great – and is great in theory. But isn’t necessarily realistic, like many theories.  What it means is this: “We tried counseling, it didn’t work. We tried medication, it didn’t work. We tried a day program and it didn’t work.  We tried an in home aide, and it didn’t work.  There’s nothing left but inpatient.”  All of that “we tried” takes time.  Weeks and months, which add up to years before you’ve exhausted every option.  Sometimes it is easy for a clinician to say, “Yeah, that’s not going to work and it is a complete waste of time to even try.”

I get why the law is written the way it is.  There are too many people who don’t want to work on things because that’s ha-a-a-a-a-ard and just putting your problem away in an institution is much easier. It’s also more expensive, and sometimes unnecessary.  And there are a limited number of beds. Those beds need to be saved for the children that absolutely need them.  I just wish there were a bypass procedure if the inevitable is obvious.  Otherwise, we expose both the children and the community to potential danger.

The mental health industry has come a long way from Cuckoo’s Nest-type institutions. However, it doesn’t mean we’ve figured it out, either.  As usual, I don’t have a solution, just an ability to ask questions about the problem.  I’m interested in your thoughts – please comment below.

Nothing in this article should be construed as legal advice. It is being offered for informational purposes only.

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