REPRESENTING CLIENTS IN HEARINGS

Chapter 4

Most advocates have among their duties the responsibility for representing clients at certification review hearings. And, some advocates are responsible for representation at medication capacity or Riese hearings as well. The following are some tips for improving your representation of clients at hearings.

A. Pre-hearing Preparation

1. Before You Begin

Observing other advocates can be one of the most effective ways to develop your own advocacy skills and ideas for new and creative arguments. Watch the proceeding carefully, analyzing strategy, language and presentation.

Familiarize yourself with the makeup of patient records and medical abbreviations. Although different facilities will organize their charts differently, they all contain the same basic components. Know what information is found in each of the components. (See appendix # and # ).

Take a course in debate/argument. Read a book on persuasion, public speaking, negotiation. Try out what you’ve learned in the hearing.

2. Interviewing the Client

Meet with your client in a quiet, private area.

Give a clear explanation of your role, that you are not employed by the hospital, that your duty is to advocate for the clients expressed interests in the hearing. Remind the client that the information he/she gives you is confidential.

Encourage the client to talk openly with you before the hearing about his her circumstances and interests. Let her/him know that you will do a better job of advocating for her/him if you know all the facts.

Explain the following:

  • the nature and purpose of the hearing and what are the possible results of the hearing;
      
  • the role of the participants and how the hearing will be conducted;
     
  • the evidence considered and what questions you will ask the client.

Listen carefully to the client’s answers to your questions and probe into areas that the client does not cover completely. Follow up on leads about medical conditions, medical history, religious objections, other examples of consenting behavior and potential witnesses.

Confirm with the client what you understand him/her to be telling you. Advise client against interrupting others during the hearing and ask the client to listen carefully to the questions she/he is asked and to limit her/his answers to the questions asked.

Inform the client of the information will be presented in the hearing by the facility to prepare the him/her for any embarrassing evidence and allow him/her to tell you any rebuttal he/she may have.

If the client indicates that she/he won’t participate in the hearing, acknowledge that the client has the option, but advise her/him of the implications of not attending and participating in the proceedings.

A part of all certification hearing preparation should be education of the client on the commitment process and how to successfully challenge it. It’s also a good time to encourage a client to ask questions and make requests for assistance with other problems. In addition, use the hearing process to educate staff about the law, value of legal protections and the clients needs and interests.

3. Review Documentation

Advise the client of the importance of allowing you to review his/her medical record in order to assess the information that will be presented by the hospital and then obtain the client’s verbal consent to review his/her record.

Provide the client with copies of forms and advisements he/she may have been shown to refresh his/her memory. In the case of Riese hearings, offer him/her the written medication information required to be provided by the hospital. Go over the material about medication to confirm the client has received it and understood it. Review all side effects with the client.

Ask the client to give his/her version of events in the chart and to expand on reports of behavior that may be helpful to his/her case.

4. Know the Necessary Legal Standards and Criteria

Be familiar with the legal criteria and standards for certification review and capacity or Riese hearings.

The criteria for certification review hearings are due to a mental disorder the person is a danger to self or others or gravely disabled. See Chapter XV. Legal Status for a further discussion of these criteria. The standard is "probable cause." To constitute probable cause to detain an individual for purposes of civil commitment, a state of facts must be known to the peace officer (or other authorized person) that would lead a person of ordinary care and prudence to believe, or entertain a strong suspicion, that the person is mentally disordered and is a danger to himself or herself or is gravely disabled. In justifying the particular intrusion, the officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant his her belief or suspicion. People v. Triplett 144 Cal. App. 3d, 283, 287 - 88, 192 Cal. Rptr. 537 (1983).

For capacity or Riese hearings, the criteria is capacity to consent defined as the ability "to understand and knowingly and intelligently act upon the information required to be given regarding the treatment." Riese v. St. Mary’s Hosp. & Med. Ctr. 209 Cal.App. 3d 1303, 1321 - 22 192 Cal. Rptr. 537 (1987). The standard for Riese hearings is taken from the standard for electroconvulsive therapy. It is "clear and convincing evidence," defined as evidence which is "so clear as to leave no substantial doubt, sufficiently strong to command the unhesitating assent of every mind." Lillian F. v. Superior Court 160 Cal. App. 3d 314, 320, 206 Cal. Rptr. 603, 606 (1984). This is a high standard, above and beyond that usually required in most civil proceedings.

Make sure the law is applied correctly to the facts. Use the legal criteria when arguing the case for your client make sure the facility uses the legal criteria correctly in the hearing process as well. (See Chapter XI Legal Requirements of Hearings)

B. Hearing Skills

1. Overview

In most counties both certification review hearings and Riese or capacity hearings take place at the facility and are relatively informal in nature. Try to use a pleasant style and tone to avoid alienating the decisionmaker when presenting your clients’ case and soliciting testimony. Try as well to put your client at ease as much as possible. Make sure that she/he has been introduced to all the individuals in the hearing and is aware of each person’s role.

2. Hearing Process

a. Procedural Arguments

Even when the hearing officer will not consider procedural defects in the certification or Riese petition, the advocate should point out all procedural problems and the correct procedure to avoid problems in the future. Normally, hearing officers prefer to hear argument on any procedural issue prior to presentation of substantive evidence. Procedural issues that come up in a certification review hearing may include lack of signatures, timing problems, evidence that the client was not advised etc. Procedurals issues in Riese hearings may include evidence that the client is not refusing medication, that the facility did complete and file the petition appropriately, that the facility did not properly advise the client, etc. Advocates should continue to push the hearing officer to consider procedural defects in determining the validity of the certification or petition.

b. Presenting the Case

--Testimony

Keep the following in mind when you are soliciting testimony the facility representative:

• Ask questions that are leading and closed (preferably those that ask for a yes or no answer);

• Avoid asking "why" questions unless you have a good sense that the answer will be favorable to your case.

• Ask questions designed to elicit favorable responses first. Ask questions that attack unfavorable testimony last;

• Break down questions into components, addressing one fact at a time.

• Listen closely to the answers you get. Revise your questions as appropriate, follow up on leads.

Keep the following in mind when soliciting testimony from the client:

• Draft a detailed list of questions based on your interview with the client and review of the chart;

• If the client’s testimony is likely to appear to be illogical or disorganized, keep the testimony very brief, narrow in scope and focused;

• Ask the client in advance all the questions that you intend to ask in the hearing. If the client has trouble remembering what you covered in the interview, ask a leading question or remind the client that you’ve discussed this during preparation for the hearing. Try to avoid the appearance of coaching the client, but if you need the testimony, you can prompt the client.

c. Witnesses and Other Evidence

Make sure you know what a witness will say before you ask them to testify in the hearing. Family, friends and clinical staff may have important evidence. Remember that clinical staff may present adverse testimony; make sure to construct your questions precisely enough to narrow their testimony and don’t go on a fishing expedition.

If an outside witness with good evidence refuses or is unable to testify, you may summarize the evidence for the hearing officer.

If you have documentary evidence (e.g., a description of side effects from a medication text, a letter from the client, friend or family, an informed consent from a provider) to present, be prepared to explain the purpose for which you are introducing it.

d. Closing Statement

State the conclusion you want the hearing officer to reach.

Summarize what your evidence has shown and then review that evidence. Begin with the evidence that is strongest for your case.

Recite the weaknesses or problems with the clinician’s case, why what has been testified to is not accurate or does not lead to the ultimate conclusion.

Review why the law- as applied to the evidence as presented- requires the hearing officer to decide in the client’s favor.

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