Why would public defenders representing patients want a requirement that prosecutors be present?
Each year, Bob Ward, an assistant public defender in Mecklenburg County, helps more than 1,000 patients with mental illness navigate a fraught process: A doctor asks the state for permission to force the patients to receive treatment.
If a judge deems patients to be uncooperative and determines that they pose a danger to themselves or others, the judge can issue an involuntary commitment (IVC) order. That order can legally allow the patient to be confined for up to 90 days, with the possibility of renewal for another 180.
“Respondents” like the people Ward helps are entitled to be represented by an attorney. Indeed, Ward says, he is often the only lawyer at the proceeding. That’s because neither the state nor the “petitioners” — doctors or other concerned parties seeking the involuntary commitment – often don’t have lawyers at these hearings. Normally, physicians only at state hospitals have counsel present.
Instead, unrepresented doctors and other parties are left to manage the legal arguments on their own. Some even turn to the judge or the patient’s attorney to help them present evidence or to answer other legal questions. However, this is not the the role of a patient’s attorney. Such inquiries can pose serious ethical conflicts.
Ward noted that several other states such as New Jersey and Arizona have state or county attorneys present for involuntary commitment proceedings. Michigan, he said, even allows jury trials.
But in North Carolina, this is rare.
And the doctors’ lack of legal representation, Ward and many other advocates says, gives rise to a frequently flawed and unfair process. Public defenders and some advocacy groups say are concerned such situations endanger patients’ rights to due process. They are concerned that the fairness of an involuntary commitment proceeding can be compromised when judges and doctors take on — or are forced to take on — a role akin to that of a prosecutor.
The proceedings are tainted by a confusion of roles, with much at stake for the person being involuntarily committed.
“The involuntary commitment process can definitely perpetuate the stigma of the criminalization of mental illness,” Ward said.
Divided court okays current practice
Notwithstanding these criticisms, the North Carolina Court of Appeals in a 2-1 decision, upheld the lawfulness of this practice in two rulings Tuesday.
According to the rulings, the burden remains on privately owned hospitals, such as Duke University Medical Center, not the state, to retain attorneys or to have doctors petition a court.
State courts have traditionally held that involuntary commitment hearings are not “adversarial,” meaning there are technically no opposing parties with differing interests. And unlike criminal cases and civil disputes, there are no prosecutors or plaintiffs, only petitioners. Petitioners can be any concerned individual, but in these cases, they are usually physicians or psychiatrists. Patients are not defendants, but respondents.
Corye Dunn, director of public policy at Disability Rights NC  said in a statement that the Court of Appeals’ decision erred in considering involuntary commitments non-adversarial. “Involuntary commitment is a significant deprivation of a person’s liberty interest, in that it both prevents them from leaving a locked facility, and forces treatment (including medication) that the person may not want,” Dunn wrote. She said courts should apply stringent standards for involuntary commitment.
Ward said the process does feel adversarial, “when a petition is being served and you’re being handcuffed, or you’re locked in a room with limited access to the outside world, or being held down to have forced medications, or going through a court hearing to determine if you’ll be able to leave the hospital.”
As involuntary commitment petitions increase, prosecutors not prioritizing an issue
There was a 91% increase in involuntary commitment petitions in North Carolina between 2009 and 2018, according to a data collection effort led by Ward’s office. The data indicated that about 100,000 involuntary commitment petitions were filed statewide in 2018.
Ward told Policy Watch that his office alone has received more than 21,000 cases since 2013.
Not every petition results in a court-ordered commitment, but such commitments come with high stakes.
Durham District Attorney Satana Deberry stopped assigning prosecutors to represent the state at involuntary commitment hearings altogether in 2019. Sarah Willets, a spokesperson for Deberry’s office, said in an email that the office made its decision after examining the statutes and evaluating its limited resources. Willets said Deberry contacted prosecutors in seven jurisdictions with large psychiatric facilities and discovered that none of them provided such representation.
Deberry’s decision directly contributed to legal arguments in two Durham cases involving Duke University Medical Center, in 2019 and 2020. In those cases, trial court judges involuntarily committed two individuals with mental illness for 30 days each, after finding they were “a danger to self or others.”
The trial courts based their decision on two separate petitions initiated by doctors at Duke. In one case , a patient threatened his family, attempted suicide and didn’t comply with medication instructions, according to two evaluations. In another , the doctor concluded that the patient suffered from mental illnesses, including psychosis and hallucinations.
North Carolina law does not clearly require the state to be represented in an involuntary commitment proceeding. It only explicitly requires the Attorney General’s office to represent state-owned hospitals in such proceedings. Since Duke is private, the Attorney General’s Office said it was under no obligation to provide representation and declined to do so.
Attorneys for both patients contended in court that their hearings shouldn’t have proceeded without the a representative from the district attorney’s office or the state attorney general’s office.
The trial court judge, however, dismissed the argument in both cases. In one case, the judge stated: “… it sounds like the DA’s office is refusing to do anything, and then it sounds like the Attorney General’s office is refusing to do anything, and Duke and the VA are private and/or federal entities, therefore, they can’t [do anything].”
“So you’re suggesting we do nothing, and not have these cases at all as a result of people failing to do their duty?,” the judge said. “I’m not gonna do that.”
On appeal, public defender Katy Dickinson-Schultz argued that the trial court judge effectively and impermissibly examined witnesses. In effect, the judge assumed the role of a prosecutor — i.e., the District Attorney or the Attorney General — neither of which was present at the proceedings.
Dickinson-Schultz also took issue with the fact that judges in both cases admitted the testimony of witnesses who didn’t complete the original patient evaluations themselves, thereby denying the respondents’ right to confront and cross-examine witnesses, a right guaranteed by state law.
Dickinson-Schultz said her office is considering appealing to the state Supreme Court. “We continue to see cases come into our office where nobody has represented the state,” she said. “We are considering what’s on the table and what’s best for people who are facing those types of commitments.”
Cases with far-reaching implications that may help set precedent
In its ruling, the Court of Appeals upheld the Durham trial court decisions. Appellate Judge Toby Hampson wrote for the majority, holding that the trial court was bound by precedent. “The trial court only elicited evidence that would otherwise be overlooked, as no counsel for the State was present.” Hampson wrote in his opinion. “The trial court did not ask questions meant to prejudice either party or impeach any witness.”
Judge Chris Dillon concurred, saying that the involuntary commitment process does not require the state’s interests to be presented at the hearing.
Judge Jefferson Griffin wrote a lengthy dissenting opinion, saying that the trial court incorrectly assumed the role of the state’s representative, harming the patients’ rights to an impartial proceeding.
“An individual was deprived of his liberty by an officer of the court who, after expressing some reluctance, offered and admitted evidence against that individual, called an adverse witness to testify on his adversary’s behalf, and examined that witness to elicit the State’s evidence.” Griffin pointed to other states’ cases and challenged the precedent, noting that it didn’t address the underlying constitutional issues.
At the heart of the dispute is whether involuntary commitment proceedings are “adversarial.” The majority opinions held that the proceedings are merely “inquisitorial” and designed to examine whether harm was present at the time of the hearing. In his dissent, Judge Griffin disagreed.
Ultimately, this could be a matter for the state Supreme Court to decide.
Mark Botts, a professor at the UNC School of Government, said the question of whether the proceedings are “adversarial” would be an important determination for the high court to make. “This question of how you characterize the proceeding and what rights, generally, the respondent is entitled to, is extremely important, because that will determine many future issues and questions that come before the court.”
Final rulings could have further implications, said Botts, including whether a commitment respondent has a right to an in-person hearing, as opposed to video conferencing proceedings permitted under a new state law  approved last month. Ward said the demeanor of a patient can greatly impact a judge’s decision on involuntary commitment. Patients should be entitled to in-person hearings if they desire them, Ward said.
Botts said that having an attorney representing the state’s interests at commitment hearings would enable the case to be administered with fewer chances for error. “In addition to preventing the judge from having to elicit testimony from witnesses and admit documentary evidence on behalf of the state, an assistant AG or hospital attorney would also ensure the proper and timely submission of required documents, and witness preparation, in advance of the hearing.”
Experts say system needs less coercion, more support
Even if not constitutionally required, the state legislature, for purposes of ensuring due process and more effective and efficient administration of justice, could enact a statute requiring attorney representation of the state’s interest, said Botts.
Ward said even patients who win their cases sometimes lose faith in medical and legal systems — the very systems that should be designed to increase that faith and encourage cooperation toward better health and recovery.
Ward urged the Attorney General’s office and district attorneys to put more resources into handling involuntary commitment cases to guarantee procedural justice.
“Unlike other court and health systems that have seen reforms over the past thirty years, the civil commitment system has been basically set on autopilot,” Ward said. “Many of those with lived experiences, their families and professionals involved have felt marginalized and left out of the process.”
Laurie Coker was a psychiatric nurse in Winston-Salem once diagnosed with bipolar disorder. She has also lost a son to suicide, related in part to challenges associated with finding the right kinds of services that would support his recovery from his mental illnesses.
With a focus on less coercive solutions to mental health challenges, she has opened the Green Tree Peer Center . “It’s concerning how easily the courts and the clinicians presume danger in individuals who may be having extreme mental experiences,” she said in an email.
Coker said that North Carolina’s public mental health system is outdated and insufficient, including its reliance on involuntary commitment.
Coker stressed the importance of reducing coercion in treatment. While she agrees with the idea of providing appropriate medical treatment to patients in acute situations, “Medication and psychiatric treatment are not the linchpin for recovering mental health,” she said. “We need approaches that engage people more holistically as is done in many other countries.”
Coker suggested that the state raise the standards for judges to approve involuntary commitment. She referenced a 2017 study  which found that 178 of every 100,000 patients discharged from psychiatric hospitals died by suicide, a number approximately 15 times the national suicide rate.
She advocates for measures that could head off involuntary commitment and treatment. These could include ensuring access to peer support, personal Wellness Recovery Action Planning. the development of health care powers of attorney that reflect individuals’ choices. Psychiatric advance instructions  could empower an individual’s stated preferences if he or she must receive in-patient treatment.
“There has been a dramatic increase in the use of IVC, largely due to the lack of community-based services.” Disability Rights NC’s Dunn said. “Even those services that are available are stretched thin. The answer is not to make it easier to hospitalize people; the answer is to provide services before a crisis arises.”