Civil liberties and Mental Health a thin line.

Earlier this month the internet was ablaze over a rumor that Jack Nicholson was retiring because of memory problems.  Jack is considered one of the best actors, certainly of late 20th century and has the distinction of being the only actor to be nominated for an Oscar in every decade since the 60’s. His first Oscar was for the movie One Flew Over the Cuckoo’s Nest in 1975 for his portrayal of  Randle “Mac” McMurphy  a small time criminal serving time at a Labor Farm who gets transferred to the Mental Hospital where he feels he can serve his time in the relaxed hospital atmosphere.  The film which was based on the novel with the same name published in 1962 went on to win several Oscars including Best Picture, Best Actor, Best Actress, Best Screenplay and Best Director but it is the subject of film which I want to discuss.

The book was published 1962, though it was written in 1959 by Ken Kessey and was based on his observations, communications with patients at the psychiatric facility he worked the graveyard shift on in Oregon. It came during the Civil Rights movement era and a time when the world was re-evaluating how dealt with mental patients. It aimed to humanize mental patients while at the same time condemn the practices of the staff in their treatment of their patients. In this area the book was a great success and has been cited by many as helping the Deinstitutionalisation movement.

Prior to this mental patients were institutionalized at Mental Hospitals run by the States.  In other words they were removed from society at large until they could rejoin society safely.  While the reasons for moving away from the system that had existed before are many, including the States wanting to shift the cost of care to the Federal government, new psychotic drugs that helped patients lead ordinary lives and the poor conditions in many of these psychiatric facilities but also the understanding of mental illness and developmental disabilities. The issues at facilities like Willowbrook in Staten Island, NY and its deplorable conditions and books and films depicting these problems made the Deinstitutionalization Movement unstoppable.  To this day closed Insane Asylums or Mental Hospitals are a favorite of Hollywood as a setting for horror movies even though the reference is not deserved.

The ideal was that with the advent of better drugs and the higher understanding that mental illness patients would be treated at community clinics or hospitals, with shorter stays, minimum of cost, at a better service for the patients. It would help remove any stigma attached and allow that person to rejoin society as soon as the medications stabilized them.  Mentally ill people would have advocates to ensure they would be treated as any other minority group and their rights preserved.  The reality is the results are mixed, while there are more people who are mentally ill and are functioning, contributing members of society, we also have thousands that were left homeless, unable to hold a job, or contribute in any way.

Part of the problem is that this new system is mostly dependant on Mentally Ill people to make health decisions that their own illness prevents them from making.  and the advocates that are supposed to look after them at times are more likely to enable a person with mental illness to remain homeless, living on the streets than assist or aid to have them involuntarily place at a facility, if they are against it.  It has also put restrictions of family members who are trying to aid them, requiring them to jump through hoops before help can be provided.

The Baker Act in Florida allows government the ability to send someone for evaluation, but a family member would need to get a court order to try to do the same at the hearing if the patient is not obviously psychotic chances are the Judge would deny the order.  Regardless the system is a catch and release system as, except on extreme cases all patients are eventually released, to a family member, a half-way house or even the streets.  Or in some cases jail, as they have become our mental institutions as a Human Rights Watch reports in 2003 that up to 56% of US inmates suffer from some mental Illness.

With the Naval Yard shooter, Aaron Alexis, also being a person who had sought or had received mental health treatment  in his case for an obvious psychotic episode, hearing voices and believing that neighbors were shooting microwaves into his brain, perhaps it is time we re-evaluate our Mental Health system, including the Supreme Courts decision in 1978 in O’Connor vs. Donaldson that a state cannot constitutionally confine a non-dangerous individual who is capable of surviving safely in freedom by themselves or with the help of willing and responsible family members or friends.  As Alexis has shown, he too, was thought to be non-dangerous until he got a shotgun and other weapons and decided to shoot-up the Naval Yard.

Mark O’Mara, George Zimmerman’s former attorney wrote a post on his blog. The Trouble With Using Mental Health as a Qualification for Gun Ownership he argues against the passing of any law that uses Mental Health as a criteria and makes some great points.  Perhaps rather than take away someone’s right we can just delay them, have a doctors  certify the person?  I am not sure if anything can be worked out in that regard except that our Mental Health system needs to improve.  No one can predict the next tragedy,  but sometimes the signs are there if we look at them.

As the Zimmerman case has shown the State is willing to suspend the civil liberties of a person when it suits it, and I am not advocating that be done with mentally ill people.  Everyone knew the Mental Health system was flawed, its time we pay attention.  Banning guns will not get rid of guns, and as the terrorist attack in Kenya showed us again, a gun-free zone is a slaughter waiting to happen.

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3 Comments

  1. NO ONE can clearly define mental illness in a manner that proves that person is incapable of owning firearms except in rare cases. I will take that a step further and state that every single one of us can be labeled mentally ill by someone’s definition.

    I am quite familiar with Florida’s Baker Act. It is inconceivable that once someone makes the call and requests that the Baker Act be invoked, LE has no choice whatsoever even if, upon arrival, they find no evidence that the person should be removed from home due to an attempted suicide. You are then required to be hospitalized for a minimum of 72 hours and a doctor can “re Baker Act” you again simply because they want to. Usually, upon arrival, others there in the psychiatric ward will befriend the new person and advise them about the unwritten rules that you must observe in order to have a chance of getting out in 72 hours.

    NEVER miss a meal, eat whatever is on your plate, NEVER miss a group “therapy” session and participate even if you have no clue what they are talking about, Be careful what you say (they have a list of what not to say and questions to avoid.) Socialize.. watch TV with others.. etc. It is so crazy it could drive you to insanity.

    How do I know? I know because it happened to me. Kiss your rights to privacy goodbye. This becomes public record and it will show up in any background investigation. “Certain people” will be sent your complete hospital report that includes your past medical history, as well as every medication you have ever been prescribed along with other private details of your life that you have disclosed to any medical professional. My doctor accidentally gave me 10 pages of a 20 page report. Even he had never seen anything like it. Each page was stamped at the top that the patient was not to ever see the report. It was faxed to him. The hospital has now refused to talk to me or even send me any of their reports.

    My “crime” is that I own firearms and should not be allowed to have them in my home after being Baker Acted. That is one of many flaws in the Baker Act.

    I made what turned out to be a huge mistake and said YES when asked if any of them were loaded. At first, I said whether or not I owed guns was none of their business, but was threatened for even longer detention if I did not answer truthfully. When LE came to my home, a loaded handgun was by my bed as it always had been, my gun cabinet was full of guns as was a walk in closet so I knew that they already knew the answer.

    If you know of a good 2nd Amendment attorney, especially one in the TP, feel free to give them my contact info, bori. I have a story to tell, with lots of documentation and do not mind a bit if it is told. No attorney locally will touch it and that includes an obvious of medial malpractice. I suffered a deep wound on my leg that they “forgot” to suture. A nurse comes by almost every day to treat but it recently became infected again so I am “home bound.”

    Keep in mind that I was not charged with any crime whatsoever and did nothing wrong in any sense of the word. I saw a confidential report that they have plans for LE to come to my home and take my guns. I can only hope that no one tries to do that. It would probably not end well for me.

    I have no qualms about saying any of this on a public forum. Maybe one of those TP folks will take action instead of saying what they WOULD do. How many people would actually give up their lives if LE came to their home to take their guns? IDK. It’s a lot to think about. I am a disabled vet so I know what it means to be prepared to die for what we believe as Americans.

    Again, bori, I am giving you the OK to share this with anyone who might be interested.

    Thanks for the thread. Like me, you do not have a clearly defined solution but what you have written is certainly thought provoking. It is also scary that politicians could define mental issues.

  2. Bori. Shoot me an email at knology.net, if you are interested to know more. This has become an evolving event because no one wants to tell me the truth.

    Why would someone as big as Morgan and Morgan turn down this case when at least a dozen nurses have said the doctor made a huge mistake by forgetting to close up the wound? All they would say is that the case is entirely “too complex.” My guess is that they would have to challenge Florida’s Baker Act and privacy issues as well as gun control laws. I specifically asked that the entire report be expunged because it is riddled with lies that can easily be proven including who actually made the initial call to Baker Act me and what was reported as the reasons for the call.

    • Jordan what a nurse or doctor may say to you privately can be very different from what they will say in court. Here’s Florida law;

      766.104 Pleading in medical negligence cases; claim for punitive damages; authorization for release of records for investigation.–

      (1) No action shall be filed for personal injury or wrongful death arising out of medical negligence, whether in tort or in contract, unless the attorney filing the action has made a reasonable investigation as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant. The complaint or initial pleading shall contain a certificate of counsel that such reasonable investigation gave rise to a good faith belief that grounds exist for an action against each named defendant. For purposes of this section, good faith may be shown to exist if the claimant or his or her counsel has received a written opinion, which shall not be subject to discovery by an opposing party, of an expert as defined in s. 766.102 that there appears to be evidence of medical negligence. If the court determines that such certificate of counsel was not made in good faith and that no justiciable issue was presented against a health care provider that fully cooperated in providing informal discovery, the court shall award attorney’s fees and taxable costs against claimant’s counsel, and shall submit the matter to The Florida Bar for disciplinary review of the attorney.

      (2) Upon petition to the clerk of the court where the suit will be filed and payment to the clerk of a filing fee, not to exceed $42, an automatic 90-day extension of the statute of limitations shall be granted to allow the reasonable investigation required by subsection (1). This period shall be in addition to other tolling periods. No court order is required for the extension to be effective. The provisions of this subsection shall not be deemed to revive a cause of action on which the statute of limitations has run.

      (3) For purposes of conducting the investigation required by this section, and notwithstanding any other provision of law to the contrary, subsequent to the death of a person and prior to the administration of such person’s estate, copies of all medical reports and records, including bills, films, and other records relating to the care and treatment of such person that are in the possession of a health care practitioner as defined in s. 456.001 shall be made available, upon request, to the spouse, parent, child who has reached majority, guardian pursuant to chapter 744, surrogate or proxy pursuant to chapter 765, or attorney in fact of the deceased pursuant to chapter 709. A health care practitioner complying in good faith with the provisions of this subsection shall not be held liable for civil damages attributable to the disclosure of such records or be subject to any disciplinary action based on such disclosure.

      Part 1 is especially significant, because for any suit to get passed the first hurdle the filling an expert (doctor or specialist) must certify at the time of the filling that what was done was erroneous. Without such, the case will be dismissed out of hand. If you have an expert to certify your claim, then you have the issue of damages, a case for malpractice can cost the attorney 50 to 100 thousand and 2 to 3 years to complete. Are the injuries life threatening or permanent and disabling all of these goes into account by the lawyers before they accept the case.

      I can tell you from personal experience that even though my son got his leg amputated below the knee and has permanent paralysis in his left side, I could not file a case because the circumstances were such that nobody would clearly state that malpractice had occurred. Like you I had nurses and doctors suggest that I follow up the incident with a lawyer and they clearly thought some malpractice had occurred, but none could do it publicly.

      Finally, the law in Florida is that if the suit is dismissed the opposing party is liable for the cost.

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