It has been fifty years since the decision in Lessard v. Schmidt created the promise of meaningful procedures in which one could challenge the decision to authorize involuntary confinement. The promise has proven more illusory than real. Far too may courts continue to rely on perfunctory, conclusory testimony from psychiatrists want to provide what they perceive to be needed treatment, whether or not the individual truly meets the constitutional requirement of dangerous. Far too often lawyers who are supposed to provide effective representation fail to do a meaningful job of challenging these failures.
This workshop will aims to help attorneys become more effective advocates for those facing civil commitment and will provide guidance as to how to do so. It will address ways to challenge diagnoses of mental illness and assessments of danger. It will steps a lawyer can take to place him or her in a better position to challenge testimony and how he or she can go about doing so. This includes, but is not limited to ways to challenge the manner in which doctors have reached their conclusions, the conclusory nature of their opinions and other cross-examination strategies.
If time permits, the workshop will address using damages actions to challenges decisions to hospitalize in the first place. It will focus on substantive law governing challenges to hospitalization and strategies that lawyers can undertake to increase the odds of winning what have become difficult cases to win.