Episode Transcript
[00:00:00] Speaker A: Imagine a justice system built on rigorous evidence, not gut instincts or educated guesses about what works and what doesn't.
More people could access the civil justice they deserve.
The criminal justice system could be smaller, more effective, and more humane.
The Access to Justice Lab here at Harvard Law School is producing that needed evidence. And this podcast is about the challenge of transforming law into an evidence based field.
I'm your host, Jim Greiner, and this is Proof Over Precedent.
This week we're bringing you a student voice.
[00:00:38] Speaker B: Hi, everyone, my name is Joe Lieberman and I'm a 2L at Harvard Law School. And I'm joined today by Arushi Solanki, who's going to be telling us about an important Access to Justice problem.
Arushi, you want to introduce yourself and tell us what you're going to be talking about today?
[00:00:58] Speaker C: Yeah. Hi, everyone. My name is Arushi Solanki and I'm a 1L at Harvard Law School.
Before law school, I was an EMT and subsequently a paralegal at a health clinic.
So the topic I'm going to be talking about today is sort of at this intersection of healthcare and the law, and more specifically at the intersection of psychiatry and the law.
What I'll be talking about is kind of two proposals that address some problems that have arisen in the context of Rogers hearings.
Rogers hearings is basically another word for a treatment hearing. And it comes into play once an individual has been involuntarily committed for psychiatric reasons.
So in order for an individual to be involuntarily committed, they have to, of course, have a serious mental illness and satisfy certain other criteria, like dangerousness to self or others, or like an inability to take care of oneself.
And once an individual is committed, though, despite.
Despite their experience with different psychiatric illnesses, treatment is not.
Does not go along with this sort of commitment. And something interesting that happens is a lot of, or I think around 50% of people who experience schizophrenia have this symptom called anosognosia, which is a symptom that impairs their awareness of their own condition and often understandably, leads them to refuse treatment while they're in this inpatient care.
[00:02:41] Speaker B: So can I take us back a step just for those of us who aren't really familiar with the system?
So who has the authority to commit somebody in the first place? Is it a court? Who does it?
How does that work?
[00:02:55] Speaker C: So before this treatment hearing even happens. So once a psychiatrist determines whether an individual satisfies the criteria for civil commitment, they can petition the court if they think it's necessary for this individual to undergo intensive care.
And this commitment hearing is then like occurs in a court and a judge basically rules on whether this patient or potential patient meets the qualifications that one must meet in order to be involuntarily committed. And so this is one hearing. And the treatment hearing or the Rogers hearing is separate and comes at a later stage.
So once the patient refuses treatment, but the care team determines that treatment is likely necessary to improve the individual's condition and help them get closer to release, they must file a petition with the court again and basically propose a treatment plan that the judge needs to accept.
So what happens during this hearing is first the judge determines whether the patient is competent to refuse treatment. Because if they're competent, then they have every right to refuse treatment. It's a part of their own autonomy. And if the judge deems them incompetent, however, then they employ this standard called the substituted judgment standard, where they ask whether the patient would have accepted this treatment plan had they been competent. And if the judge does accept the treatment plan, then the care team, including the psychiatrist, is authorized to treat the patient despite their previous refusal.
And this, these sort of safeguards are really important to ensure that this care isn't abused or treatment isn't abused and used kind of in the name of hospital convenience. So these procedural safeguards are important to ensure that people's autonomy is being protected.
However, studies have begun to show that it's functioning more like a bureaucratic hurdle as opposed to like a necessary procedural safeguard. And what I mean by this is. So you know how I was talking about how the judge must find the patient incompetent and then approve the psychiatrist treatment plan.
So the judge actually ends up finding the patient incompetent and approved psychiatrist treatment plan in 99% of these hearings. And the reason that this rubber stamp approval rate is concerning is, is not only because it kind of begs the question of, well, what is this treatment hearing serving the function of if it ends up being approved? Nearly always.
And the reason this becomes even more concerning is because there's a 61 day delay from the time a patient is admitted to the time the Rogers hearing concludes.
[00:05:56] Speaker B: Okay, so that's really interesting. If I'm understanding you right, it sounds like there are sort of two issues working here simultaneously. On the one hand, we don't really know whether patients are getting a fair shake in these Rogers hearings. And on the other hand, it's just causing huge delays to their treatment, which they're going to potentially get anyways because you know, all of these essentially are getting approved. Do I have that right?
[00:06:25] Speaker C: Yeah, you absolutely have that right. And the reason this delay is concerning, it's obvious, like that the confinement is likely going to hinder their progress or improve their condition.
So it's not only that, but also the fact that physical and chemical restraints are often used on these patients when they have refused treatment and they're waiting for the conclusion of the Rogers hearing. And this delay can, well, the physical and chemical restraints can harm the patient and lead to longer hospitalization states and increase the chance of this patient being readmitted.
So it poses a huge problem for the health of these patients. And also from like a judicial perspective, kind of begs the question of whether the court's resources should be used in such cases where they end up approving all these plans anyways.
And there could be, you know, one favorable explanation could be that this lengthy delay is necessary for the creation of a proper treatment plan.
But I would like to propose that, like, these are two separate problems. One is an inefficiency as evidenced by the delay, and one is the ineffectiveness of this process given the rubber stamp approval rate of 99%.
And what I'd like to talk, what I'd like to talk about during this podcast is what I wrote about in my blog, which is two proposals to address these two issues.
So first I'll be talking about.
[00:08:00] Speaker B: So before, before we get to the proposals, which I'm really curious to hear about just as a initial question, just to make sure we all know exactly how these, these Rogers hearings work. Do. And you might be about to get to this, but do the, do the patients have lawyers or are they representing themselves in these. In these hearings?
[00:08:20] Speaker C: Yes. So currently the system relies on attorneys from cpcs, which is Massachusetts Partners Public Defender.
I believe it's a committee.
Committee for Public council Services. So it's Massachusetts Public Defenders.
[00:08:41] Speaker B: And you want to go back and say that again just because we could hear this? I think.
[00:08:45] Speaker C: Yeah.
Do you want to just ask the question again and then we can go from there?
[00:08:51] Speaker B: Yeah. Yeah.
Okay. So before we get to the solutions that, that you or the proposals that you talk about in your blog, which I'm, I'm really curious to about, just to make sure I'm understanding correctly how these hearings work, do the, the patients have lawyers or are they representing themselves? And I guess also just as a general matter, is this system unique to the state of Massachusetts or is this how it happens in other states too?
[00:09:22] Speaker C: There, there are a lot of variation between states from the beginning of the process to the end of the process. So, for example, in New Jersey, they require not just the psychiatrist who's treating the patient, who's part of the patient's care team, not just that psychiatrist petitions for a treatment hearing, but also a separate independent psychiatrist in order to maintain some sort of objectivity.
So this process varies greatly across states, but generally looks pretty similar because of Supreme Court precedent that kind of laid the groundwork for why a treatment hearing is required.
Before the 70s, once people were civilly committed, they were automatically deemed incompetent. And of course, this poses huge questions about, like, why we're equating dangerousness and having a serious mental illness with being incompetent.
And due to this precedent, states started rolling out this treatment hearing requirement in order to safeguard the autonomy of patients and ensure that their commitment will not mean that they're just automatically treated.
[00:10:41] Speaker B: But the Rogers hearings that we're talking about, this is how it works in Massachusetts.
[00:10:47] Speaker C: Yes, Rogers hearings are specific to Massachusetts.
Rogers actually is. It's the name of one of the state supreme court cases.
So that's another reason why it's called Rogers Hearing. But that court case basically laid out some of the requirements for what the judge should be considering, and it's in his. His or her determination.
And so, yeah, your previous question too. So patients do necessarily have lawyers.
They are represented by counsel from the Committee for Public Counsel Services of Massachusetts, which I'll be calling CPCS from now on. And CPCS is essentially Massachusetts public defender.
These hearings, currently the process relies on district court judges.
So the treatment hearings are held at district courts or family and probate courts.
And the proposals that I was. I discussed in my blog post involve these two players, the district court judges and the CPCS attorneys.
As I go through kind of like why I'm proposing alternatives to these players, I'll also explain why these players might not be the most effective in this process.
So my first proposal is allowing administrative law judges to oversee Rogers hearings instead of district court judges.
And second, replacing the CPCS appointed attorneys with mental health professionals as patient advocates.
So I'll talk about the ALJS first.
[00:12:31] Speaker B: So.
[00:12:33] Speaker C: One thing that I talk about is how these, like, trial court bottlenecks may be a factor that causes the lengthy delays to the conclusion of Rogers hearings, since Massachusetts judges already handle a high caseload, given the fact that these hearings are held at district courts and family probate courts and have like, sort of mixed dockets.
So I speculate that these might this process or the involvement of district courts might only exacerbate delays.
And ALJs have been touted as promoting judicial efficiency and ensuring that there is a way to balance due process with timely outcomes.
While there have been little to no RCTs actually proving that ALJs are like fulfill these, like actually promote like judicial efficiency.
I also talk at the end about how we can propose an RCT to evaluate this question.
And there is some, there are some examples of administrative law judges or these sort of like informal administrative hearings being used in these in the cases to determine whether a patient might need treatment.
So one example is the Federal Bureau of Prisons requires an administrative hearing before this involuntary treatment. And notably the hearing officer in these cases is actually psychiatrist to ensure impartiality, though the psychiatrist cannot have been involved in the person's diagnosis or treatment. And this setup is kind of reminiscent of what I talked about earlier. This, like, about New Jersey, how there's this independent psychiatrist who is also involved in the petitioning process that kind of functions to ensure there's like this attending psychiatrist assessment was objective and accurate.
And Massachusetts actually also allows this during treatment hearings. So it's not like New Jersey where two psychiatrists have to submit the petition, but during these hearings they allow patients to request independent psychiatric evaluations.
[00:14:46] Speaker B: So.
[00:14:48] Speaker C: ALJs are also used in other complex medical cases such as Social Security disability hearings. And this kind of shows that such matters can be effectively handled outside of trial courts.
[00:15:01] Speaker B: So do we have, that's really interesting. Do we have data on either the way the Bureau of Prisons does it or the way it works in these analogous contexts like Social Security?
[00:15:16] Speaker C: There is very little data out there, at least that I've been able to find. But any listeners, if you've been able to find any data, that would be so fantastic.
But yeah, so I think that the RCT that I propose at the end of the study I think is really important in order to not only determine whether introducing these reforms into Massachusetts system would be helpful, but also to determine whether like the use of ALJs in these cases is actually, actually justified or necessary.
So I'd like to also caveat with the point that a lot of what I'm saying is speculative and I'm completely open to hearing other opinions on what might promote and kind of alleviate the problems that this system is experiencing right now.
[00:16:06] Speaker B: Well, it sounds, it sounds like it may be a little bit of an understudied system, hence the speculation. So it seems important that you're, you're shedding some light on it. Could you briefly explain what you have in Mind as an rct to study this ALJ concept and then we can switch gears and talk about your other proposal.
[00:16:28] Speaker C: Yeah, so the RCT that I propose actually involves both of my proposals. So I might. I might discuss that at the end if we could.
[00:16:38] Speaker B: Perfect.
How about we go to proposal number two, then?
[00:16:43] Speaker C: Yeah. So I actually, I have another thing I want to talk about with ALJs. So there is some support in case law for allowing these sort of ALJs. And the court at the time, during Rogers v. Commissioner, had stated that the parties must be given an opportunity to be heard in trial court. And it actually quoted a separate case called In Remo that concerned forced sterilization and not psychiatric treatment.
I think at the time, these two procedures were equated because of the principle that even a small risk of unjustified irreparable harm outweighs competing interests. So even a small risk of this treatment working out terribly and having irreversible consequences means that you should not use it for treatment in any situation.
And while that might have been while that actually definitely was true at the time, considering the fact that the treatments they used were Thorazine and ECT and lobotomies that are, well, currently medically debunked and not used, but also at the time that caused many side effects that were completely irreversible. So at the time, while it may have solved some issues like controlling impulsivity or something like that, it also had other consequences that affected individuals personality and ability to function in society.
And so something that's interesting is like modern psychiatric treatments no longer carry these irreversible risks that were troubling the courts at the time.
And so I think it's worth thinking about how we think psychiatric treatment has changed over the course of the last 50 years in order to determine whether some parts of our system that relied on this outdated assumption might be worth questioning or taking a second look at. But yeah, now I'm happy to talk about the second proposal I had.
[00:18:53] Speaker B: Great.
So why don't you remind us a little bit about it and sort of some of the reasons why you think getting medical mental health professionals more involved in representation would be a good thing for patients.
[00:19:08] Speaker C: Yeah, absolutely. So currently, like I said earlier, the process relies on cpcs attorneys to represent the patients.
And I speculate that this might not be the most effective for patients or they might not be the most effective advocates for patients, since attorneys are trained in adversarial litigation, which. Well, first just kind of creates an atmosphere that pits the patient against the treating Psychiatrist which would undermine their care in the future by morphing the patient's perspective or perception of the psychiatrist and undermining like the trust that the patient has in the psychiatrist. But that's sort of a separate issue. I think some studies such as Dr. Biswas's have talked about how there's this sort of like ethical quandary where attorneys are supposed to, are supposed to zealously advocate for their patients needs, but are in situations where their patient, at least to the attorney, might not seem completely well. And so there is a possibility that lawyers, these lawyers, end up just deferring to the psychiatrist's judgment on what is necessary for the treatment and are unable to properly analyze the psychiatrist proposal and point out any problems with it because they're not trained psychiatrists and they're not trained at interpreting these medical evaluations, which is what's at issue in the case.
And like another thing is that like the, in these sorts of hearings, it's not really about like resolving factual disputes.
That's kind of what attorneys might be most equipped to do.
And yeah, so rather than resolving the factual disputes, I think the ability to understand and analyze this expert psychiatric testimony is often more important in order to zealously advocate for your patient, patient, and what your patient needs and what your patient wants.
So.
[00:21:19] Speaker B: That'S really interesting.
I guess my question is, you know, and I like the creativity, but as we, as we know, the legal system is usually pretty reluctant to cede control from lawyers over any processes. Is there any precedent for doing something like that?
[00:21:39] Speaker C: Yeah, it's actually great that you worded the question that way about how like attorneys really like to seed their position or their power.
So Justice Powell, who's on the Supreme Court, was actually like a huge like lawyer's advocate and he just thought that their role in society was paramount. But even he has recognized that the most relevant skill in such cases is not adversarial legal argumentation, but rather, like I said earlier, understanding and analyzing psychiatric testimony. And he said this in his concurrence in a 1980 Supreme Court case called VTECH v. Jones, which involved an involuntary transfer of an inmate to a mental health facility.
So while the case was slightly different, it was in a different context, but it kind of just held that prisoners due process rights are undermined when this transfer happens absent a hearing.
However, he kind of went a little further and in his concurrence talked about the fact that appointing an attorney in order to satisfy these due process rights might not always be necessary or helpful for the person whose treatment is to be determined.
And this is actually one of his quotes that I kind of rephrased earlier. So he says the resolution of factual disputes will be less important than the ability to understand and analyze expert psychiatric testimony that is often expressed in language relatively incomprehensible to laymen.
And in, in advancing his argument, he also cited a separate case called Gagnon Viscarpelli, which held that appointed counsel are not always necessary in probation revocation hearings because they significantly alter the nature of the proceeding by rendering it more adversary.
And this court advanced a sort of case by case approach to determining whether there is a right to counsel.
And this case by case approach is based on two key factors. The first is, are there complex factual disputes at issue? If yes, then yeah, a lawyer will probably be needed. And second, can the individual speak for themselves?
If no, then alternative assistance may be more appropriate.
So again, like here, because the key issue in Roger's hearings is similarly not resolving factual disputes, but rather interpreting psych evals, mental health professionals might be better suited than cps, CPCS attorneys to advocate for their patients.
And there's also. There's also another problem.
So you know how I mentioned that there was a lengthy delay to the conclusion of a Rogers hearing that poses health complications for patients?
So there's actually a potential additional reason, which is the number of continuances that are sought during these hearings.
A continuance is basically a court ordered delay.
And district court guidelines in Massachusetts state that continuances should not be granted unless a reason permissible under these guidelines are provided.
So Dr. Biswas study actually found that in 25% of the continuances granted, there was no permissible reason stated. And she also noted that the frequency of the hearing continuances also suggests that the key court personnel are not aware of the repercussions of delays of medical care, specifically the consequences for the patient.
And I speculate that a mental health professional would be more acutely aware of the impact that these sort of legal tactics will have on the patient. And it might be the case that attorneys use this sort of. These sort of legal tactics because they're unable to advocate for their patient in a more substantive matter by challenging the interpretation of psychiatric evaluations and testimony.
[00:26:14] Speaker B: Gotcha. Sorry. Go. Go ahead.
[00:26:17] Speaker C: Oh, yeah, no, that was, that was pretty much what I wanted to say. Did you have a question?
[00:26:22] Speaker B: No. I think, you know, this is really fascinating and certainly seems like an area where, you know, some of our traditional assumptions about the way the legal system operates might fall apart a little bit. So thank you for walking us through that. Before we wrap up, is there anything else that you wanted to discuss?
[00:26:42] Speaker C: Yeah, absolutely. So like I've said a few times throughout this, these the effectiveness of such reforms need to be substantiated. And I think that the RCT that I proposed could also shed some light on how ALJs promote judicial efficiency in any context, since there are very little studies on that.
So I think that in RCT in this situation, because we're focusing on the effectiveness AKA the approval rate outcomes and the efficiency AKA the time of delay to the conclusion of the hearing, these are the two outcomes that I would like to measure in a proposed rct.
And I also so in this control trial, the control would be the current process. So a traditional trial court and attorney as counsel.
So in the first experimental group I would just change the type of hearing so the qualifications for the judge. So experimental group one would just change the type of the treatment hearing, an administrative hearing with an attorney and the experiment. The second experimental group would involve the type of council changing, So a traditional court, a traditional judge and mental health professional as a type of counsel and the last experimental group would be would have both altered. So an administrative hearing with a mental health professional as an advocate.
And yeah, I think that comparing these three experimental groups, the control could shed a lot of light on how altering the variable of counsel can impact outcomes and how altering the variable of the qualifications of the judge and the type of the treatment hearing can alter outcomes.
Yeah. So I'd just like to conclude by saying that leveraging ALJ's expertise in complex adjudication and incorporating mental health professionals as advocates might lead to a system that is able to prioritize both timely treatment and meaningful patient representation with respect of their due process rights.
[00:29:03] Speaker B: Thanks Arushi. This has been a really interesting podcast and on a very important topic.
[00:29:10] Speaker C: Thanks so much for all your questions. They were so insightful and I loved getting the chance to answer them and think more about it.
[00:29:17] Speaker A: Proof Over Precedent is a production of the Access to Justice Lab at Harvard Law School.
Views expressed in student podcasts are not necessarily those of the A J Lab.
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