Latest / Asked & Answered - your community podcast for all things legal / Updating SRPMIC's Mental Health & Competency Laws

Transcript

Updating SRPMIC's Mental Health & Competency Laws · Asked & Answered - your community podcast for all things legal

• 0:01
  Kierstin: Content warning. This episode includes discussions of mental health crisis, suicidal ideations, domestic violence, and other sensitive topics. Please listen with care.
• 0:12
  Alane: So this is where our stories diverge because so it's so crazy because I kinda have some similar story, and we've never shared this. We've never talked about this at all.
• 0:22
  Kierstin: Yeah. So the thing is here, what I've learned today is if you want advice about this, you send them to Alane. You don't send them to me. Welcome to Ask and Answered. This is Kierstin Anderson, and I'm joined today by my co host, Alane Breland
• 0:42
  Good afternoon. What are we talking about today, Elaine?
• 0:46
  Alane: Hey, everybody. We're gonna talk about mental health, and we're gonna talk about the competency process in community court. Before we get started, I'll just give everyone fair warning. I'm getting over a little bit of a cold, so if I sound frog like, that's why, or if I cough or sneeze or anything. Hopefully it won't be too bad.
• 1:02
  Kierstin: Well, thank you for joining us, especially when you're getting over the cold. I think we wanted to get in front of this recording because you've gone to council and you have some pending legislation. Is that correct?
• 1:18
  Alane: Yeah, so council has approved these two packets for a public comment period. So, public comment period is just the time that is set aside for just a break, basically, between or before a legislative packet goes before Council for a final vote. And the whole purpose of it, exactly like it sounds, is to get comments, questions, suggestions, that sort of thing from community members who will be affected by the changes if they were enacted.
• 1:44
  Kierstin: I think we've talked about other code changes.
• 1:47
  Alane: Yeah, we talked about truancy a long time ago. Yeah. Or a couple weeks back.
• 1:50
  Kierstin: Right. So the process is very similar. You have a comment period, people present those comments, you go to district meetings, you talk about the code. Before we actually get into the changes of the code, what are you covering, or what does this law cover in general?
• 2:08
  Alane: There are two parts, basically. One part covers mental health, which is specifically the emergency apprehension process that's laid out in the Code, and the second part is competency or incompetency as it relates to criminal court cases.
• 2:22
  Kierstin: Okay. So then let's take one at a time. So what is emergency apprehension for our listeners?
• 2:28
  Alane: Emergency apprehensions are what the Salt River Code calls emergency mental health crises.
• 2:35
  Kierstin: Okay. If I were to have an issue with my uncle and he's having a really hard time, he's threatening to hurt people, I call 911. Is that how the whole
• 2:45
  Alane: That's exactly one example of an emergency apprehension. So it's built for cases that are either danger to self or danger to others. So if you have a family member or if you yourself are struggling with suicidal ideation, or if yes, you have a family member who is threatening to harm themselves or threatening to harm other people, that's exactly the circumstance that this covers.
• 3:07
  Kierstin: And is it invoked if I called 911 or I also understand that there's the crisis hotline too sometimes.
• 3:16
  Alane: It can kind of be either, but that's one of the that's a great question, because that's one of the changes that the new code makes. Oh,
• 3:23
  Kierstin: that was a question I didn't even anticipate. That's awesome.
• 3:26
  Alane: So right now, the only entity that can initiate an emergency apprehension is the police department. And so that means that even if you were to call Crisis, if that person were to speak to Crisis and they weren't agreeing to go get treatment, then Crisis would have to call the police department in order to start that EA process, order to have them detained and have the evaluations done. So one of the biggest changes that the new code proposes is to enable certain mental health professionals, certain behavioral health professionals to begin that process themselves.
• 4:01
  Kierstin: Okay, so say for example, I'm at a doctor's appointment and my uncle again is having a really hard time making statements of hurting himself, that could be initiated through that doctor that's seeing them or the individuals that are there?
• 4:17
  Alane: It could be initiated from mental health professionals at our PHC. So if you're already there, maybe your nurse would call in someone from the BHS department or call in one of the psychiatrists or psychologists or behavioral health techs, crisis workers, counselors, that sort of thing to begin that process. And the first step is always going to be opting for voluntary treatment. So the emergency apprehension process, EA process, as we sort of shorthand it, it really is only meant to be used for cases where involuntary treatment has to be sought. So, we try, BHS tries every time to have people consent to treatment, And then the EA process never comes into needing to work because they've consented to treatment.
• 5:05
  Kierstin: So the involuntary process is what you're talking about is an individual that's saying, I don't need treatment. I am fine. Everything's okay. Right.
• 5:16
  Alane: Maybe they don't realize what's going on because of their mental illness or whatever other condition. Or maybe they do realize it, but they just don't want treatment. But they have to get it in order to remain safe, or in order to remain safe for themselves, to remain safe for their family. You know, lots of jurisdictions have involuntary commitment processes. Not all tribes do.
• 5:37
  So Salt River is different in that way. But, you know, it really is a process that's meant to help protect individuals and families during times of crisis. And so I think it's important that it evolve over time to reflect things like new developments in mental health, best practices, trauma informed practices. And that really is the focus of what these changes are designed to do.
• 6:01
  Kierstin: Okay, sounds good. So I guess that would be my next sort of question with this particular code that we're talking about. What are the big changes? I think we kind of explained to our listeners what that process is or what an EA is, so what would be those changes that someone could anticipate? We did just talk about, which is kind of new to me, I didn't know that, is that now a mental health professional could call that in versus going through the 911, process PD or police officers, which I always know is part of the process.
• 6:37
  So now you explained they're not the only ones that can call that in. What other changes could someone anticipate with this proposal?
• 6:46
  Alane: If a person is found to be a danger to self and danger to others, and if it is found that involuntary commitment is necessary, the only real option is inpatient commitment. Normally that's to the Arizona State Hospital. We're working on some other options as well that I think would hopefully end up being more beneficial and more culturally sound. But right now, the only option is the Arizona State Hospital. The new code also proposes kind of this other, this secondary option, which is assisted outpatient treatment.
• 7:16
  Okay. For cases that maybe aren't as acute or cases where the person is somewhat voluntary but not really wholly and completely bought in and we still need a court order but they're willing to do something, maybe Assisted Outpatient is the correct route, because then the court can maintain some jurisdiction over that person to ensure that they're complying and that things are getting better. But it also is a less restrictive environment than, you know, the Arizona State Hospital another inpatient facility like it.
• 7:45
  Kierstin: So for our listeners, what do you mean by acute?
• 7:49
  Alane: If it's not as urgently dangerous, I think is probably the best way to put it.
• 7:53
  Kierstin: Okay, sounds good. And then you at the Arizona State Hospital, that's a locked facility. I know they're court ordered to be at that locked facility for thirty to ninety days. This other alternative that you speak to, is that a locked facility or is that a place that you can reside at and you come and go? Do you know anything of how that particularly works?
• 8:21
  Alane: The assisted outpatient therapy part or assisted outpatient treatment component really is able to be personalized to fit the specific circumstance. It wouldn't be at a locked facility. So it wouldn't be like a commitment in the way that we normally think of that to the Arizona State Hospital or to another locked facility. It might be some component of Journey to Recovery with some more outpatient counseling more tailored to that person. It might be that they get referred out to a different specialty facility to get more specialized counseling there.
• 8:58
  But it really is tailored to that individual person. And I think the most important difference outpatient. So they're not in that locked facility.
• 9:10
  Kierstin: When I was asking my question and I realized you said outpatient, I sort of realized, oh, this is not an inpatient sort of deal.
• 9:18
  Alane: But I think even where it's like that, like inpatient, outpatient, you know, we get used to them, but we're not medical professionals. I think, you know, if you're not, then maybe you don't necessarily know what that means. So it's a good discussion to have anyway.
• 9:28
  Kierstin: Yeah. What other changes or are there any other changes that are in this new proposal?
• 9:34
  Alane: So there are some that are just some definitions updates and things like that. But another big change is, I think what we've realized in experience over time is that maintaining some amount of jurisdiction after discharge is very important.
• 9:51
  Kierstin: So can we stop there? Because I think I know what you're talking about. In essence, when someone gets a court order and they're court ordered to ASH, then the court closes the case and we never know anything that happens or what's going on or we don't follow that. Is that
• 10:08
  Alane: what you're sort of referring to? Well, we make attempts to follow it, but the hospital doesn't always keep us up to date on when a person's going to be discharged, when a person's going to be back in the community. So that is one big problem that we're trying to solve because we want to make sure that all of the resources that we have here in the community are able to reach out while the person is still hospitalized to make sure that they're able to make that transition, that they have somewhere safe to live, that they have people who are trustworthy and safe that they can live with, who can watch over them, who can help get them to appointments. So like a coordination of care. Exactly.
• 10:45
  So we're hoping that the new processes make that a little bit easier. Okay. But also, the court would maintain some jurisdiction just for status hearing updates after commitment. So even while the person is still in the hospital, we would be having these ongoing status hearings. And because there's a remaining court order, it gives us a reason to reach out to the hospital and say, Look, we really need this information.
• 11:07
  It gives us a basis to ask for it. And then it also helps the person understand that, you know, even after you're discharged, we want to make sure that you're still healthy and well. So we're going to still keep having some amount of, you know, not forever, but the court will maintain some jurisdiction after just to make sure that things are going okay and that you don't need more court ordered services. Right. And so that's a difference as well, just to kind of just help with that step down process.
• 11:34
  Kierstin: The wraparound is what sometimes people refer to it or whatever, wraparound services or whatever, yeah. Is there anything other changes or did you want to start talking about the second proposal that you're working on?
• 11:48
  Alane: So I recommend that everyone take a look at the Office of the General Counsel's website because they have a specific webpage dedicated to ordinances that are in public comment. And on that webpage, you can find a red line copy of the changes. So that means that the original text is there. And then anything that's changed, there's a strike through and then it appears in red. So you can see what the language used to look like versus what the language would look like now.
• 12:14
  So you can see exactly what the changes are. And a lot of those, like I said, are just definitions, just things that don't necessarily directly affect the process, but do modernize it, make it align with best practices and with just what people are doing in 2026. But those are the biggest, I think, just when you're talking about, you know, what are the big changes, we've talked about them. Right. Everything else would just be sort of detailed.
• 12:39
  Kierstin: So then moving into our next proposed law, what was that packet look like? Or what does that cover?
• 12:47
  Alane: It covers criminal competency, the process. That has to do with, you know, if a person who is experiencing mental illness commits a crime, and if because of that they are not able to participate in their own defense, or if they're not able because of the mental illness to understand that what they did was illegal, then any person, so the court, our office, or the Defense Advocate's office can ask for a competency evaluation. That's the current process. That's the current process. And that won't change.
• 13:20
  Okay. That will still happen. Just to determine, is this person competent to stand trial? Because at the end of the day, we don't want to be trying people for crimes who are incompetent and shouldn't be. Right.
• 13:34
  So that's the process as it exists now. Okay, but you're going for some proposed changes and what are those proposed changes? So right now, the only option if a person is found incompetent is that their case gets dismissed with prejudice, which means that we can never refile it.
• 13:51
  Kierstin: Never. Gone forever. Oh my goodness, that's not good.
• 13:55
  Alane: And you can imagine, you know, if it's like a disorderly conduct case or something, probably not a big deal, right? But what we see is that it's really not those cases. It's things like domestic violence, child sexual abuse, serious drug offenses, ongoing drug offenses.
• 14:11
  Kierstin: And I guess I'm just thinking out loud that maybe one of the listeners would listen to. You could have someone that committed a crime, a DV case, they get dismissed and then they commit a crime maybe a month later and again because of the lack of competency it gets dismissed again, right? That's right. And that's obviously a problem because in each of
• 14:32
  Alane: those specific instances that victim is not going to see justice. But there are also collateral consequences. So if you're convicted of a domestic violence offense, that means that you become a prohibited possessor. That means that you can't possess firearms. Okay.
• 14:45
  But if you never get the conviction for domestic violence, you never become a prohibited possessor. Likewise, if you're convicted of a sexual offense, you become a registerable sex offender, and you have to register and the police department knows where you live and there are restrictions on where you can live. You know, you can't live near schools, you can't live near playgrounds, you can't live with your victim. And if you're charged but never convicted because you're found incompetent, then you're never registerable as a sex offender. And so there's no way to monitor where you live, where you go, where you loiter.
• 15:20
  Kierstin: Real quick, Elaine, I just thought of something before you go on to your next comment. So you talk about if someone is found incompetent, how are they found incompetent?
• 15:31
  Alane: They're found incompetent because they undergo a forensic psychological evaluation. Okay. And it's lengthy. You know, they ask a lot of different questions. I've never seen one or undergone one because they're confidential.
• 15:43
  Right. But, you know, they take family personal history, they take medical history, they talk about your levels of education, they talk about mental health history, everything. And then they sort of take everything together and decide, you know, and then there's interview components as well. So they talk with the person, in their expertise make a decision, is this person competent or not?
• 16:02
  Kierstin: Right, and who usually performs those evaluations?
• 16:06
  Alane: They go through HHS, BHS, here in the community. Sometimes it is a physician or a psychologist that is on staff. Sometimes it's a contract person. It just kind of depends on who the individual is, who's being evaluated to determine, you know, is there a conflict? That sort of thing.
• 16:23
  So it kind of depends on the circumstances, but it will go through the health center and they will eventually, once they get the order, they will assign someone, whether it's an on staff or a contract person.
• 16:34
  Kierstin: The HHS or BHS is Human Health Services.
• 16:38
  Alane: Health and Human Services or and then behavioral health services is a component of health and human services. Right.
• 16:46
  Kierstin: Okay. Just wanted to clear that up for All your right. So you have given us a good baseline and understanding what that process looks like. What are the changes that you're now proposing? I think you kind of alluded to one earlier as far as it sounds like, but I don't want to guess that
• 17:07
  Alane: Yeah. So you're on the right track for sure.
• 17:11
  Kierstin: She's reading my mind, I know it.
• 17:13
  Alane: One of the well, the biggest change is that we would introduce what's called a restoration process. So if a person is found competent so as I said earlier, nothing would change with regard to how an evaluation gets requested. Anyone can still do it. Us, the defense, the court themselves. That doesn't change at all.
• 17:35
  What would change is if the person is found incompetent. And it would essentially allow the court to order that a defendant participate in the restoration process, which I'll come to in a second. Okay. And if at the end of that restoration process they are then found competent, then we could proceed with prosecution.
• 17:55
  Kierstin: So then you could get a criminal charge against this individual.
• 17:59
  Alane: You could, yes. You could move through the criminal justice process to the part of conviction rather than having to dismiss the case.
• 18:09
  Kierstin: Right. So the restoration process, what does that look like?
• 18:12
  Alane: It will look different for every person, most likely, but what it means is that the court can order that that person undergo treatment. So, you know, I'm not a doctor, so I don't know everything or really very much about, you know, the different types of mental health issues that could render a person incompetent. But let's just say
• 18:33
  Kierstin: Someone's not taking their medication.
• 18:35
  Alane: For the sake of example, a person has schizophrenia and they're not taking their medication. And that's why they're incompetent. Which easily we could imagine that that could happen, right? This would allow the court to, you know, take a look that evaluation, finding them incompetent, ask the question of the evaluator, Do you think this person is restorable? And if the answer to that question is yes, then the court would put out a series of court orders requiring that person to undergo treatment.
• 19:08
  You are now court ordered to take your meds. You're court ordered to comply with your physician's case plan, that sort of thing. And there would be a series of status hearings to determine how are things going, are they being compliant. And again, at the end of the prescribed time period, if they are found competent, so there will be another evaluation done. And if they're found competent, then we could just proceed with the case as if it were any other case.
• 19:31
  Kierstin: Okay. Yeah, so I'm just imagining like a scenario where they're getting evaluated, they appear in front of the doctor, the doctor says they don't understand what they did or what crime they committed. They then, as you mentioned, the evaluator says, However, based on this particular individual's diagnosis, they can be restored to a point that they will now understand the criminal process. Is that kind of correct? Am I thinking?
• 20:02
  That's right. Yeah.
• 20:03
  Alane: That's right.
• 20:03
  Kierstin: LH: And then once they're restored, if you will, then they'll go through the criminal case, and you still have to prove that they committed the crime. You still have to prove all those things or whatever.
• 20:16
  Alane: It doesn't change our burden of proof. It doesn't change their right to a trial. It doesn't change their right to confront their witnesses at a trial. It doesn't change anything with regard to how the actual trial takes place. It just gets over that hurdle of, Okay, they were incompetent and now they're not.
• 20:32
  Right. It's definitely very victim focused, Is I feel
• 20:37
  Kierstin: there any other changes that are being made?
• 20:42
  Alane: All of the changes really pertain to enacting that process. Okay. So not really any other procedural changes. I mean, it builds in processes for accomplishing the restoration process, but that is the crux of the issue is just building in that process.
• 20:59
  Kierstin: Which I think is huge anyways. I mean, I mean, I've been here for eighteen years. I think you've been here longer, and I definitely have heard of this issue. I've heard of individuals that were concerned with this issue. So I think this is super impactful.
• 21:16
  It's definitely going to change the horizon, or I don't know if that's what to say as far
• 21:21
  Alane: as No, think that's a great way to put it. I mean, it definitely is more trauma informed. It's more victim focused. It's community safety focused. And it also, there are additional protections built in for defendants as well.
• 21:32
  They will automatically get a guardian litem appointed in both processes. So, in the emergency apprehension process that we talked about before and in the competency process, they will automatically get a guardian ad litem. You probably could speak better than I could about what that entails because your office houses the GAL program. But, you know, they So in addition to having, you know, a defense attorney for their criminal case, they will also now have additional counsel to help advocate to make sure that, you know, the process is followed correctly and well. And so this isn't about, you know, added punishments.
• 22:03
  It's not about unfair treatment for defendants. It really is about holistic wellness for the defendant, but also for the victim. Because I think that what we all know anecdotally from the work that we do is that a lot of times just having accountability can really better outcomes for victims as well in terms of their own mental health journeys.
• 22:26
  Kierstin: Yeah, and so just for Elaine's point about the guardian net litems, an attorney that is appointed to a defendant is representing the individual's interest, whereas a guardian ad litem is representing the individual, their best interest. So there's some distinction there. Their recommendations to the court is always looking at what their best interest is and how to proceed based on their best interest versus the attorney is simply representing them specifically what they want and so there is a difference as far as that representation. So having a defense have an attorney and a GAL, I think that's a great added protection for the defendant as well.
• 23:13
  Alane: It's just one more set of eyes to make sure that the process runs like it's supposed to, right? Right. For sure.
• 23:18
  Kierstin: All right. So what are some of the logistics here?
• 23:21
  Alane: So public comment period started June 24. That's when council approved opening the public comment period and it runs for sixty days until August 23. So there's lots of ways to participate. There's lots of ways to get us your feedback. If you want to read all of the changes.
• 23:44
  If you want to read all the changes word for word, good for you. It'll be good bedtime reading for you because you'll go right to sleep. You can do that, like I said earlier, by visiting the Office of the General Counsel's website, which is accessible through the community website. And they have a specific page for ordinances that are in public comment period, and they'll have links to the individual changes. And then you can also, there's an email link that you can click there to send your comments.
• 24:13
  You can email us at askedandansweredsrpmic nsn dot gov. You can email me. My email address is located on the OGC website as well. You can call me, (480) 362-5414. Or what most people tend to do is just visit a district meeting.
• 24:32
  So I will be most likely on the district meeting agenda for most of the council members in these coming couple of months. I'm actually already on Councilperson Carlos' agenda her July meeting.
• 24:44
  Kierstin: In July, you'll see her at the district meeting.
• 24:48
  Alane: You will.
• 24:49
  Kierstin: And you usually present like a PowerPoint to kind of go over some of the details or the fine details with and and then that also gives everybody opportunity to ask questions while they're there.
• 25:01
  Alane: Right. So I'll give a presentation that is very similar to what you just heard on the podcast, but I also bring with me hard copies. So if you don't love reading on your computer, which I understand because it hurts my eyes as well, I always bring hard copies. So I'll bring hard copies of the emergency apprehension changes, hard copies of the competency changes, hard copies of the PowerPoint.
• 25:21
  Kierstin: Who would be interested in maybe some of these changes? Like, who's the audience for that?
• 25:27
  Alane: The audience, I think it's really anyone who cares about how mental illness is addressed in the community. And I think that is potentially everyone, right? You know, Kirsten, like you said, you've been here eighteen years. I've been here nineteen. It'll be nineteen in October.
• 25:48
  And these are changes that I have wanted for that entire time, the entire time that I have worked here. And there have been a lot of things that have happened that have made it more real or more accomplishable, I guess. Okay. One of them was when the Journey to Recovery Center opened their Crisis Stabilization Unit. That really gave us an option for detaining people not in DOC for the first time ever.
• 26:14
  Kierstin: Right.
• 26:14
  Alane: Those changes were passed last year, so that's been possible ever since the CSU opened, the Crisis Stabilization Unit. But also, BHS is just doing such a great job, I think, of changing the way that mental health is viewed and changing the way that it's addressed and changing the way that people think about it. And I think this is just another one of those efforts. I've been really lucky to work really hand in hand with them on this project. They have read every line of it.
• 26:44
  They have given me feedback. They have helped teach me a lot of things about how they do their work and who, you know, which positions do what. And that's all reflected in the draft. But that's not to say that it's perfect. And just like with truancy, you know, we got some really amazing comments from community members, families, parents during that public comment period that actually affected the outcome.
• 27:14
  We made some changes to the draft code based on their input. That could happen again. And so I think with something as important as mental health, you know, we want to hear from people who've experienced it. We want to hear from people who, know, tragically who have called for help and seen their loved one go off in the back of a police car, because that's what happens right And it's not a great outcome, and no one feels good about it. And so tell us how that would have affected your family if they had instead left with a crisis worker, or if instead of going to DOC, they had gone to CSU.
• 27:50
  You know, we want to hear those stories. We want to make sure that we're doing the right thing.
• 27:54
  Kierstin: Well, I also think like just having public comments or providing or typically being part of that process, you hear comments that you didn't even think about. And so it is helpful to receive those public comments, you know, we're looking at it through a lens of an attorney or going through the legal system, whereas these public comments are, like you mentioned, someone going through it in whatever capacity, as family, as a victim, you know, all those areas.
• 28:30
  Alane: And we try to be as complete and thorough as we can, and we try to be mindful of all the different perspectives. But at the end of the day, I'm a lawyer. And at the end of the day, I'm not a community member. And so try as I might to use the experience that I do have to put myself in that position, you know, I'm not going to be perfect at it. And so there really is no replacement for people who are willing to share these vulnerabilities.
• 28:59
  Because, I mean, it's not pleasant to talk about, you know, and we understand that. But we also that's how we give ways to contribute confidentially as well without having to necessarily talk in a district meeting out loud to, you know, a lot of people. But we do We want to make the law reflective of what the community needs. And so we're really grateful to people who will go to that vulnerable space and give us their experiences and their thoughts. So please do, if you have thoughts, if you have input for us, please give it to me.
• 29:35
  Kierstin: August 23, I believe is that.
• 29:37
  Alane: August 23.
• 29:38
  Kierstin: Yep. That's your cutoff deadline. Appreciate you having this conversation today. Appreciate you guys listening to us at Ask It Answered. Again, Lane mentioned the email, but if you do have any questions, not only about this code, but just questions in general, like legal questions that you've been dying to ask, and we would love to
• 30:01
  Alane: And we know you have them.
• 30:03
  Kierstin: Yeah, we do know you have them. And we would love to talk about them on the podcast. And so you can send those email queries at askedandansweredsrpmic nsn dot gov. Appreciate you listening today, and I think we're headed out.
• 30:20
  Alane: Yeah. We'll see you next time. Bye. Bye.