Mental Disabilities Law Issues

• Publication year: 1978
• Pages: 1619

7 Colo.Law. 1619 Colorado Lawyer 1978.

1978, September, Pg. 1619. Mental Disabilities Law Issues

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Vol. 7, No. 9, Pg. 1619

Mental Disabilities Law Issues

Imagine that you have just been appointed counsel for an indigent respondent in a civil commitment case. You are preparing for the hearing, and have before you copious evidence from the commiting physician to the effect that your client is nuttier than a fruitcake and unable to safely negotiate a street crossing. Of course, he will phrase his opinions in such terms as: "The patient has decompensated into the acute phase of the schizophrenic syndrome, paranoid type." To have any hope of successfully challenging such testimony, you need the opinion of another psychiatric expert. But is your client entitled to an independent evaluation by a physician of his or her choice at the state's expense? For the mental health attorney, this is a very important unresolved question about Colorado's civil commitment statute, C.R.S. 1973, § 27-10-101 et seq.

Necessity of Psychiatric Testimony

You may have dozens of lay witnesses willing to testify to your client's sanity; without expert psychiatric testimony you have as much chance of winning as you would in a medical malpractice case without assistance from your own medical expert---virtually none. The courts, rightly or wrongly, have traditionally viewed mental illness as a medical issue. The statute itself defines a mentally ill person as "in need of medical supervision, treatment, care or restraint"

[C.R.S. 1973, § 27-10-102(7), emphasis added]. Just as this definition mandates medical testimony on the issue of mental illness at the certification hearing, the only evidence capable of effectively disproving a need for medical treatment or a diagnosis of mental illness is expert clinical testimony for your client

The statute also provides that the committing professional must be either a psychologist or, more usually, a psychiatrist [C.R.S. 1973, §§ 27-10-102(11) and 107(2)]. A law that requires a clinician to put your client in a mental hospital clearly implies that it requires one to get your client out. In practice, courts grant far more credence to a psychiatrist's testimony than a psychologist's; even with a psychiatrist, training and experience are important credibility factors. In such a context, evidence submitted by lay witnesses is valuable only to the extent that it corroborates an expert's opinion.

Psychiatric Fallibility

In view of the courts' and the statute's reliance on psychiatric opinions, you might assume that they possess a high degree of scientific validity and that different psychiatrists agree substantially in

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their diagnoses and prognoses of any individual patient Unfortunately, studies reveal that neither proposition is true. For example, Tarter, et al, in "The Psychiatric Diagnosis," Diseases of the Nervous System, 1975, v. 36, finds an overall rate of diagnostic agreement among experienced psychiatrists to be only 48.4 percent. Even the prestigious American Psychiatric...