Melody T. McCloud M.D.

Black Women's Health and Happiness

Are Judges Reluctant to Order Mental Health Evaluations?

Not only criminal defendants need mental health assessment

Posted Apr 26, 2012

In murder cases we often hear a defendant plead “insanity,” and mental evaluation is ordered to assess a defendant’s ability to withstand trial. In divorce and child custody cases, one or both parents might be ordered to undergo mental health evaluation to assess their suitability for child custody, or even visitation. Even in animal hoarding cases, psych evaluations are sometimes ordered by the Court.

But mental illness does not occur only in criminal defendants, or when children and/or animals are involved. Civil court defendants, debtors and others brought before the court might also suffer from mental disorders such as PTSD, Borderline Personality Disorder, Bipolar Disorder and more, but it seems that judges are resistant/reluctant to order mental health evaluations in civil cases. This is a concern for many, including loved ones of those who have these disorders, and also many of our veterans who fight for better PTSD (and other) mental health services and treatment.

“The prevalence of serious mental illnesses among all people entering jails is estimated to be 16.9 percent,” according to the Consensus But even in criminal cases, many states—such as Louisiana and Ohio—are in crisis and have cut funding for mental health beds and or clinicians, and it’s stated that there is “a reluctance on the part of local judges to order mental health evaluations for defendants.”

Mental Health Courts” have been created to help channel those of concern into the system; these MHCs combine court supervision with community-based mental treatment, while avoiding expensive court, or jailhouse, costs. Some courts may request mental services for Axis I conditions (depression, bipolar disorder and schizophrenia), but they are not as quick to seek evaluation for Axis II disorders, such as paranoid, antisocial and borderline personality disorder. Why not, when these too can wreak havoc not only for the sufferer, but all of society?

But again, this deals with criminal cases. What about civil cases, for example..federal bankruptcy?

Example: A debtor files for bankruptcy and lists a person as a creditor to whom the debtor owes money. Let’s say the creditor is a family member, or even an ex-sweetie or spouse who recognizes that their loved one is actually an untreated sufferer of Borderline Personality Disorder (BPD) who has resisted all requests to seek evaluation and therapy. If the creditor/loved one files an Objection to Discharge (hence, an “Adversary Proceeding”), federal code states that “Rule 7035 (physical & mental evaluations) applies in an adversary proceeding.” (I’m not an attorney, so I ask, does that mean that it is within the Court’s authority, jurisdiction and discretion to order mental health evaluation if information is given to support the request?) How high is the bar for it to be ordered?

With this example, some might wonder how a diagnosis of BPD is relevant to bankruptcy. Easy: Impulsivity—including “impulsive spending”—is a criterion of BPD. Many BPD sufferers (BPs) buy a lot of “stuff” in order to bolster their self-worth because they often feel bad and unworthy of love. In turn, it goes to reason that their large debt may, in large part, be due to the BPs “impulsive spending.” (Many BPD sufferers also have no sense of consequence and hence will incur debt without feeling a need to pay their bills; this can cause a tremendous burden on society at large.) BPD is just one of many mental disorder examples.

If evidence is provided by the creditor-family member to support the request for mental evaluation of their loved one (without specifically naming the diagnosis), and actually links the filing before the court with the presumed diagnosis, what threshold must be met for the judge to actually order the comprehensive evaluation--talk, blood tests and painless brain scans?

In cases of animal hoarding, or hoarding in general, the link to obsessive-compulsive disorder (OCD) is often entertained. Some states allow for mental health evaluations in such an instance, usually because there is some outward proof of the afflicted person’s deeds/misdeeds: You see the stuff, or animals, they hoard. But how does a loved one prove or discreetly demonstrate to the Court that behind closed doors the defendant/debtor is emotionally abusive, has mood swings, self-injures (though they may just say their cuts are “inadvertent”), and truly needs long-overdue help, evaluation, treatment? (In fact, 'impulsive spending' may be the least painful of the symptoms all must endure.) How, in what’s submitted to the court (and is public record) can you impress upon the judge to simply order the evaluation, so that the most private of details can and will be shared with the court-appointed psychiatrist behind closed doors and off the public record? What harm or consequence will the Court suffer by simply ordering a defendant to mental evaluation when a family member/loved one pleads, begs and prays of the Court to do so?

If someone is brought before the court, or a debtor files bankruptcy, it gives the concerned family member an opportunity to finally get someone to order their loved one to get help. Most men are often reluctant to seek mental health evaluation (or go to any doctor) in any case; so if the judge refuses to act and lets the moment pass, the opportunity is gone and the person will continue to be in denial, continue to inflict their behavior upon others, continue to hurt themselves, those who love them (and they love), and harm society by further incurring more debt, continue to rage, self-injure, and yes, have private emotional pain due to repeat failed relationships and chronic life chaos.

Again, for criminal cases, mental exams are often ordered; but what is required for a judge in a civil case to act—to order mental health evaluations? Also, other than bankruptcy cases, what other civil cases does the Federal Rules of Civil Procedure re: mental health evaluations apply, and are judges more likely to order such testing in those proceedings? I look forward to hearing from loved ones of sufferers, and those in the legal and psych professions on this one.

Copyright © 2012 Dr. Melody T. McCloud. All rights reserved. Any excerpts from this article should include a hyperlink to this--my original post on Psychology Today, with author credit. Feel free to post the link to this, and any of my PT posts, to your social network pages. Follow me here at PT, and now (I've finally joined the fray) on Twitter: @DrMelodyMcCloud.

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