|By Elaine CunninghamSpecial to the Las Vegas Tribune
The Constitution of the United States is a metaphorical umbrella that protects all of us from the storm of tyranny. It was designed to guarantee rights, protect every American citizen and be a model for basic human rights around the world.
There is a hole in that umbrella over two classes of individuals in this country: The elderly and the mentally ill.
I have filed a case in Federal Court about the issue of violated Constitutional and statutory civil rights.
Modern problems have made many people in our society believe that we can choose who is to benefit from Constitutional protections. This should not be so, but is. It is a perversion of the intention of the Constitution for anyone to say, “The Constitution protects us all — except [this group], and [this group], and — oh, maybe [this group].” This has happened and not many of us are aware that it has.
This fact is a very hard pill to swallow, but it is the reality.
For those unfamiliar with mental health law, the process in the NRS states, simply put, that anyone with a stated interest in any given person can initiate a psychological evaluation of that person, whether or not there is really a problem. This can be done with a trip to family court or just by calling the police. This process is called a legal 2000 (L2K) proceeding and includes seniors, most of whom live in nursing homes. It is very common to force those who do not want medical treatment to receive it using L2K as a strong-arm tactic.
When the person in question arrives at the hospital, by whatever means got them there, the medical staff at the hospital then has up to 72 hours to make an assessment. If there is a question as to that individual’s mental health — and there usually is — a Legal 2000 petition is filed with the court, usually without the knowledge of the person is it being filed on (the subject). Being suspected of mental illness means you can not say anything in your own defense that will be listened to. The reasoning goes that your lack of awareness that the petition has been filed does not make a difference because the doctor will make the mental illness determination for you.
The subject of this petition can speak only at a hearing set within five calendar (business) days from the day the petition is filed. The petition is generally filed the day someone arrives at the hospital, for insurance reasons, and because the county must pay the hospital expenses of indigent persons.
This means that you are held, without a hearing and therefore, without due process, without your possessions and without access to your family for up to eight days (more if the time starts near a holiday or a weekend) on a suspicion. This is the same as arresting a person for thinking of committing a crime.
As an advocate, I have come to find that in our society’s rush to help the elderly and mentally ill and find safety for the general population, our best intentions have backfired, and these people are being overly protected. This is a Constitutional mistake. Both of these classes of people are most often held, initially, without due process. All but gone is an elderly person’s right to refuse treatment. Entirely gone is a mentally ill person’s right to do the same. In this process, powers of attorney and advocates for these people are disregarded. These people are treated as problems — and more often than not, as criminals — and told to do what a stranger says is best for them. If you protest, you solidify the judgment of the doctor. Depending on the strength of your protest, you will be tranquilized. For a person not affected by old age or mental illness to understand the gravity of this, here is an example:
The police come into your home and arrest you, by force if necessary. They will not tell you why or for how long you will be held. Then they take you to a place where you are stripped of clothing and possessions, questioned, sedated and still without being told why. No one tells anyone you know where you will be. Then you are denied bail, held in solitary, possibly in handcuffs, for 1-5 hours and even denied a phone call. How would you feel if this happened to you? You want answers? Too bad. You will get none.
This is literally what happens to anyone suspected of being mentally ill, as well as the elderly, every day. It is NOT an imaginary scenario.
The excuses and/or justification for this run rampant. Hospital staff, the police, and the courts all believe the L2K procedure is solid law and that it is reasonable. For the most part, I agree. Most of the excuses are not excuses, but solid, reasonable and widely accepted policy decisions. However, many are taken too far. Furthering the violations of people’s rights are the legal staff of each institution charged with reducing hospital liabilities.
At the very heart of the problem is the fact that there are too many inconsistencies in current policy. The first and biggest is that medical staff want to treat people in crisis as autonomous and at the same time claim that these people are so lost, they are dangerous to themselves and/or others.
The conflict stems from misunderstanding the law. Legislation dictates the mentally ill have rights to enter into contracts and everything that someone not affected by this condition is entitled to. That is as it should be. However, a forgotten fact is that, in an emotional crisis, mentally ill people are not “of sound mind.” If they are in fact mentally ill, it should be clear they usually do not understand their own situation, are usually in denial, and certainly cannot understand legal documents such as the consents that they are usually forced to sign. So here we have a catch-22 situation.
On one hand, if they are mentally ill, they shouldn’t be forced to sign anything, much less legal documents in which they agree to give up their rights, called consents.
On the other hand, if they aren’t mentally ill, they shouldn’t be subject to L2K’s in the first place. In the cases that my foundation has seen, the “explanation” most offered in regard to most paperwork is, “Sign this or go to court.”
Advocates for these people are crucially necessary but are most often disregarded and dismissed by medical staff as “inconvenient.”
The reality is that the system that is in place can work, if we can dispense with the rampant abuses caused by budget problems and overworked medical staff. There is a simple solution and I have discovered it. All of these abuses must stop.
My case in Federal Court is a start, but much more is needed. There are many ways to contribute. While money is always good and will never be refused, people standing together works just as well.
If you are half as tired of the abuses as I am, please join my foundation and lend your voice. If you fear retribution, I can help. Please contact Elaine atacafnv.com.