Defining Mental Disability
Mental disabilities are legal terms, not medical terms. The term mental disability is specifically defined in the Social Security Act and regulations as a "severe or chronic mental or emotional impairment which causes functional limitations that are expected to last for the continuous period of at least 12 months." In practice, the term is frequently used to refer to an impairment which has resulted in an inability to gain or maintain employment or to function in the community, even if the individual is able to perform trivial tasks such as shopping and/or completing short errands .
Among the thirty-five classifications of disability in the Social Security Administration’s official listing of impairments, the following categories fall within the definition of mental disability:
Not everyone who suffers from a mental condition is considered to be disabled. A disabling mental condition must impair the individual’s ability to work and/or engage in social activities. The extent of the impairment can vary by individual. While one individual may suffer from depression, it may not result in an inability to hold a full-time job or perform other daily life activities. Another individual suffering from the same condition may experience extreme symptoms that prevent him or her from going out in public.
Legal Rights accorded to the Mentally Disabled
Legal rights for the mentally disabled vary throughout the world. In the United States, the federal government has enacted several pieces of legislation that provide assistance and legal rights to the mentally disabled. The Americans with Disabilities Act (ADA) is a sweeping piece of civil rights legislation that protects people with disabilities in all areas of public life while the Fair Housing Act (FHA) makes additional protections to allow equal access to housing for mentally disabled individuals.
Employment
The Americans with Disabilities Act (ADA) prohibits denying employment to a qualified person with a mental disability. Employers are required to meet with individuals or their representatives to discuss any necessary accommodations. Under the ADA, an employer must make reasonable accommodations to enable the employee to perform his or her job duties. A reasonable accommodation could be a more flexible work schedule that would benefit both the employee and the employer. If an accommodation is not available and employment has been denied, the ADA makes allowances for action when the disabled individual can demonstrate that the employer:
• Denied a job because of a bias or prejudice against those disabled mentally
• Failed to contact the applicant in "good faith" to understand the needs for accommodations
• Failed to give consideration to an accommodation that would "cause no undue hardship to the employer"
• Engaged in a "pattern and practice" of discrimination against the mentally disabled
Housing
The Fair Housing Act (FHA) was enacted to provide additional protections for the disabled, such as making accommodations in housing. Under the FHA, it is illegal for a landowner or real estate rental company to refuse to permit "reasonable modifications" of property or services for persons with a disability in order to "afford the person with a disability equal opportunity to use and enjoy a dwelling."
Guardians and Conservators
Guardianship and Conservatorship are similar tools used to give decision-making power to someone else to make decisions about important matters of life like finances, medical care, etc. The terms are used interchangeably. Pursuant to State Law, Guardians can be appointed for Personal and Medical decisions, while Conservators are appointed for Financial and Property management.
When does one need a Guardian or a Conservator? An individual who has been adjudicated to be mentally incompetent by the Court will then have a Guardian appointed. For an individual who is considered to be a minor under the age of 18, a parent will serve as the natural Guardian. Once a person attains the age of 18, the law allows the natural Guardian of the Minor to apply with the Court for the appointment of Guardian and/or Conservator.
How is a Guardian/Guardian Ad Litem and/or Conservator appointed? In either a case of a minor, or an adult that the Court finds to be mentally incompetent, the Natural Guardian/parent must file an application with the Court. Upon filing the application, a Guardian Ad Litem will be appointed to represent the interests of the alleged incompetent at the hearings. Then, the Court will decide in its discretion whether or not to appoint a Guardian and/or Conservator.
Ways to obtain Legal Representation
Access to legal services for the mentally disabled can be gained through several avenues. The following is a sampling of organizations offering services to those with mental disabilities.
NAMI (the National Alliance on Mental Illness) is America’s largest grassroots mental health organization dedicated to building better lives for the millions of Americans affected by mental illness. Their work focuses on education, support, advocacy, and research. NAMI also has several state and local affiliates across the country that help individuals and families affected by mental health conditions. The Bazelon Center for Mental Health Law is a national legal advocacy organization for people with mental disabilities. Founded in 1972, the Center seeks to expand and protect the legal rights of individuals with psychiatric disabilities. They work to create laws, systems, and policies that improve the lives of people living with mental health conditions. Disability Rights Bar Association aims to empower and promote the practices of attorneys serving people with disabilities. Through pro bono service, technical assistance, and sharing best practices, DRBA member attorneys advocate for people with disabilities through the judicial system. The American Bar Association is an organization of lawyers and others in the legal profession. It assists in the improvement of the legal profession, the administration of justice, and the advancement of the rule of law. The ABA is not organized for profit and membership is open to all lawyers and others who are interested in the law. The American Bar Association Commission on Disability Rights serves as a national resource center providing support, technical assistance, and educational resources for individuals with disabilities.
Advocacy Groups and Support Organizations
Advocacy groups and support organizations can be an invaluable resource as well. The National Federation of the Blind is the largest organization of blind individuals in the United States, and they have found legal representation for numerous individuals committed against their will. The Bazelon Center for Mental Health Law, based in Washington, D.C., provides legal and policy support for individuals with mental disabilities. There are branches of the Bazelon Center that focus on specific issues such as forensic mental health, Medicaid/Medicare entitlement and Freedom of Choice; however, these areas of practice overlap considerably into the area of involuntary civil commitment as well . These organizations include regional institutions and efforts, such as the Center for Public Representation in Massachusetts and the Pennsylvania Institutional Law Project. Organizations like the Parent Advocacy Coalition for Educational Rights (PACER), which is dedicated to advocating the rights of parents of disabled children, can provide some legal assistance. Additionally, many personal injury law firms or disability rights law firms give free advice over the phone about issues faced by mentally disabled individuals and issues surrounding patient rights.
The Criminal Justice System and Mental Disability Law
The criminal justice system can present myriad risks for the mentally disabled. Although most people have a basic understanding of how the law works, it is worth remembering that people with mental disabilities can have a more difficult time understanding the procedures. Their diminished capacity to understand the law makes them potentially susceptible to manipulators and unfair treatment. This is a particular concern for defendants facing criminal charges who suffer from mental disabilities.
In some cases, a defendant may be found to be incompetent to stand trial. When that happens, the individual may be held – sometimes for an indefinite period of time – in a secure psychiatric hospital. The length of stay in these facilities can stretch into months and years, as defendants await mental competence evaluations to allow for legal processes to continue.
Even after a defendant has been deemed competent to stand trial, special considerations may still be necessary during the court proceedings. Someone with a severe mental illness may be unable to adequately participate in his or her own defense, severely hindering the ability to fight criminal charges. It is important that such defendants are provided with adequate care and treatment, as well as representation.
A number of special protections and programs exist to protect the rights of mentally handicapped criminal defendants. Mental illness and developmental disabilities are treated as serious issues under the law, so there are additional considerations that ensure fairness and justice.
Working with numerous individuals with mental disabilities accused of crimes, I have firsthand experience in this field. I know how to effectively advocate for the accused and gain access to appropriate care and services. Having the right representation makes all the difference for defendants seeking fair treatment under the law.
Emerging Trends and Law
Emerging trends suggest that the law may evolve to provide better avenues for the protection of the rights of mentally disabled individuals. Advocacy groups have been pressuring the UN to go beyond its current regulations on disability rights and make additional recommendations for the legal protections of disabled individuals. It is likely that countries across the globe will respond to these calls in future legislation.
Procedural developments may also increase the accessibility of the courts to mentally disabled individuals and their family members. In the United States, the National Council on Disability is petitioning for a reassessment of the legal criteria for assessing mental competency . The council also wants to eliminate witness competency tests that currently keep many mentally disabled individuals from testifying in their own defense. If successful, the petition could provide a model for similar changes in other countries.
Case law developments may also increase the protections afforded to legally disabled individuals. A California case specifically defining the rights of legally disabled individuals and how they are to be determined could help set a precedent for similar cases throughout the world. As attentiveness to the rights of mentally disabled individuals continues to increase, the development of new legal protections will likely help to facilitate more equal treatment.