Linda Tashbook - Family Guide to Mental Illness and the Law: A Practical Handbook

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ISBN 9780190622220

eISBN 9780190669010

Dedicated to Tammy Blumenfeld, shes the one with the ratty old address book, and to Judy Tashbook Safern, who made sure that I knew why this book was necessary.

This is a book about common legal issues that arise in the lives of adults with mental illness and how the people who are close to them can help. We all have close connections to people who are mentally ill. We do not always want to become involved in their troubles, but we cannot help noticing how unfair and how often troubles seem to find them. Their own communications and actions might bring on some of these situations or make them worse, but that does not mean that these people deserve to suffer. It only means that they can use some help.

Help, what is that? Help might be explaining to your loved one his or her rights and options. This book is full of those explanations. Help might be a brainstorming session in which you both kick around ideas about whether to respond to something and how to express that response. Sometimes help is simply a matter of calling or writing on behalf of your family member. The book gives you facts and legal concepts to use in your brainstorming and communications.

Of course, there are times when help is more involved. You might fill out a form or take responsibility for something that your loved one is not currently able to manage. You could find yourself working on a series of arrangements to solve a problem. This book explains how to provide these different kinds of help in connection with legal matters.

Please do not feel pressured. This book is only a compilation of facts and ideas, not a set of marching orders. It is merely meant to inform you. It will help you decide whether or not to get involved. And if you are ready to take action, the book will tell you which office or government agency to deal with and what process to follow.

Many of the legal topics covered here could arise in the life of any adult, not just one who lives with a mental illness. For example, anybody might run into trouble or need to assert a right with the police, a merchant, an employer, or a landlord. Someone experiencing mental health symptoms, however, may have particular challenges in tolerating or managing some components of handling these legal matters, especially the rigid formalities that are often required by law.

Because legal topics differ according to the state you live in and change over time, the common fundamentals are provided here, along with instructions for finding your state law, should you need that specific information.

Once someone is diagnosed with a mental illness, he or she becomes endowed with certain legal rights and burdened with distinct legal pressures. The new legal rights will come with the status of being disabled. The legal burdens might occasionally require the individual to prove that she or he is able to manage things despite having a mental illness. To make sense of these rights and burdens, this book is organized into five broad parts representing areas of law that apply to adult life: health law, criminal law, employment law, consumer law, and the legal issues associated with death.

The book begins with the topic of health law because the process of getting mental health care is the first realm of life that mental illness officially touches. People with mental illness are sometimes called patients or clients in this section. Most of the adult health law topics discussed are about independence. For example, health information privacy enables people to be independent from their diagnoses and treatments. Social Security disability programs (SSDI and SSI) are associated with a lack of financial independence. Guardianship is available for people who cannot make independent decisions about their daily needs. Psychiatric advance directives express the independent plans that someone makes during a well period in anticipation of future episodes of severe mental illness. The most dramatic mix of mental health care and the law is involuntary commitmentwhen the legal system permits the medical system to temporarily override a persons independence. Finally, the health law section addresses malpractice, which is how the law of professional misconduct empowers people to take independent control after being victimized by a treatment provider.

There are various ways that criminal law uniquely affects people with mental illness. In this part of the book, people involved with criminal law are sometimes be referred to as victim, accuser, defendant, or inmate. When people with mental illness are victims of crime or police misconduct, they can have accommodations and support to help them testify and cope. People who are at risk of being punished for exhibiting symptoms of mental illness can benefit from crisis intervention teams that get them away from the criminal system and into treatment. When people with mental illness do get in trouble with the police, they have rights and opportunities associated with getting arrested and going through mental health assessments in jail, with being convicted of a minor crime, and with having a criminal case in mental health court rather than in the criminal court. In traditional criminal court, there are unique criminal trial defenses available to people with mental illness. If they are convicted, people have rights and remedies connected with their need for mental health treatment. This section also introduces the concept of expungement, which enables criminal records to be erased, and it demonstrates how family members can be liable for associating with, or failing to prevent, crimes.

Employment law has several ways for people with mental illness to find and keep good jobs that match their talents and availability, but sometimes the symptoms that interfere with work tasks may also prevent employees from being able to act on their legal rights. Adding to this challenge is the fact that employment law claims usually have to start at the workplace, rather than in a neutral court or regulatory agency. In this part of the book, people with mental illness are sometimes referred to as workers or employees