Mental health laws a delicate balancing act
Vail, CO, Colorado
One aspect of the Virginia Tech shootings which has attracted considerable comment is the shooter’s contacts with the mental health system and police before his bloody spree.
Why, when he was in law enforcement’s sights, could he not have been restrained? Why, when his mental and emotionally fragility has been established, could he not have been stopped? How could someone with the shooter’s documented problems so freely buy a gun?
To be fair, while all too frequent, the kind of murderous indulgence at Virginia Tech is exceedingly rare and attracts attention not only for the depth of its tragedy and sheer senselessness, but precisely because of its tenuity. While the delusional are in most communities, the general restraint is, in fact, remarkable. Only rarely does the kind of terror visited in Blacksburg erupt.
While commenting upon the specifics of the Blacksburg shooting would be unfair and premature, what, generally, do the laws of this state hold when wrestling with the troublesome issues of mental health? And how is the right of the public to be protected balanced against the protections for individuals?
“Mental illness” is defined by Colorado law as “a substantial disorder of the cognitive, volitional or emotional processes that grossly impairs judgment or capacity to recognize reality or to control behavior.” It is further defined by considering if the mental illness causes the person to be unable to care for him or her self.
If a mental illness causes a person to be a danger to self or others, then he or she may be taken into custody for a 72-hour mental health evaluation. You’ll note the word “may;” there is no obligation to take the person into custody. While “in custody,” the person is not under arrest.
At the conclusion of the 72 hour hold, the person must either be released, voluntarily enter treatment or be certified for involuntary treatment. Certification is made by a physician or licensed psychologist. If certified, an attorney is appointed to represent the person and a review hearing is scheduled and held within 10 days. The burden of proof lies with the party seeking to detain the person.
Short term certification is for three months and may be repeated twice. Long term certification is for six months and may repeated an unlimited number of times. In either case, however, in order to be detained, it must be demonstrated at hearing by a clear and convincing standard that the person presents a real threat to him or herself or others.
Absent a past history or threat of violence or a real and present danger, courts will not detain a person against their will. What someone plots, or plans in the private chambers of their mind ” unless acted upon ” is not enough to hold them. While it is undeniably a balance, we should celebrate (at least until the imperfect system breaks down as in Blacksburg) that thought police remain an Orwellian fiction.
Tragically, the system seems to have failed in Virginia, but because the shooter had not been violent in the past, it is at least understandable how the balance tipped in his favor. In retrospect, the solutions are always easy to see. What is more difficult is to determine when the collective well-being is best served by involuntary detention, when an individual who has not before demonstrated a propensity for violence may be held because of his or her oddness or even illness, and someone truly presents a real and present threat.
Instinct tells me this is a problem we can identify and over which we can anguish. But people being people with their quirks, eccentricities and foibles, it is not a problem susceptible to easy resolution nor a balance which will easily be entirely satisfactorily achieved.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley. He is a member of the Colorado State Bar Association Legal Ethics Committee and is a former adjunct professor of law. Robbins lectures for Continuing Legal Education for attorneys in the areas of real estate, business law and legal ethics. He may be heard on Wednesday nights at 7:00 p.m. on KZYR radio (97.7 FM) as host of “Community Focus”. He may be reached at 926.4461 or by e-mail at firstname.lastname@example.org.