In the Shadows: Dealing with Mental Health Issues

February 2013 Bar Bulletin
By Lisa DuFour and Sharon Friedrich,
King County Bar Association Bulletin

The balance of power in a family law case can be tipped precariously toward one party as the primary parent if the other party has a mental health issue. In addition, it is extremely difficult to know if you are providing appropriate legal advice if your client has mental health issues.

There are numerous issues the family law attorney has to be cognizant of and recognize as impediments to capably handling a case where mental illness is a component. Between 28 and 30 percent of the U.S. population has a mental health disorder, substance abuse disorder or both.1 There are no known statistics, but the percentage of people involved in family law cases who have significant mental health issues is probably much higher. This is especially true in high-conflict cases.

This article discusses some of the challenges and resources available when a family law party has mental health issues.

The Client

The Rules of Professional Conduct govern how an attorney should communicate with a client who has mental health issues. Although it may be difficult,
the attorney is required to obtain the client’s “informed consent” regarding decisions that have to be made.2 The attorney is required to
communicate with the client and explain matters “to the extent reasonably necessary to permit the client to make informed decisions regarding the
representation.”3

There also are specific rules for dealing with a client with diminished capacity. The attorney is required to maintain a normal client-lawyer
relationship to the extent possible.4 If the client is at risk of substantial physical, financial or other harm and cannot act in his or her
own interest, then the attorney may take reasonable protective action.5 This may include consulting with individuals or entities that can
take action to protect the client.6 In addition, if all else fails, the attorney may seek appointment of a guardian ad litem, conservator or
guardian for his/her client.7

What this means in day-to-day practice is that if your client is suicidal or at risk in another way, you may call the police or the King County Crisis
and Commitment Services (KCCCS) without violating the RPCs if you only reveal the information that is reasonably necessary to protect the client. 8 KCCCS has a hotline for emergencies (206-263-9200) and will send out a mental health professional to evaluate the situation if needed. The
phone line is staffed 24 hours a day, 365 days a year. If you are unsure about what could happen once KCCCS is involved, its website has a list of
answers to “Frequently Asked Questions about Involuntary Treatment and Mental Illness Laws.”9

The following is a very brief description of what could happen. If the client is severely impaired and is at risk of self-inflicted harm or harm to
others (or their property), or is gravely disabled, a designated mental health provider (DMHP) will evaluate the situation.10 The DMHP can
immediately detain the person (for up to 72 hours) if there is an imminent danger – “reasonable cause to believe that such person is suffering from a
mental disorder and presents an imminent likelihood of serious harm or is in imminent danger because of being gravely disabled.”11The
mentally ill person can be detained for up to three hours to allow for the DMHP to evaluate the person.12

The person has a right to a hearing to determine if he or she should be held longer; the burden of proof is a preponderance of the evidence.13 The court can order the person to remain for up to 14 days of involuntary treatment in a facility if specific requirements are met. 14 The facility can release the person before the time is up if it finds the person no longer requires involuntary treatment.15

If the person does not need involuntary inpatient treatment, the DMHP can request the court order a 90-day, less-restrictive treatment (180 days if the
person is a juvenile).16 The person can agree to stay at the facility voluntarily if the court accepts the agreement.17 A
voluntary agreement avoids the stigma of being involuntarily committed and its subsequent consequences (including loss of the right to have a gun).

If at the end of the 14-day period, the person needs more time in the facility or additional outpatient treatment, then a petition can be filed for 90
days of court-ordered treatment.18 The court can only order 90-day periods of treatment at a time. The involuntary treatment is considered a
“triage” to stabilize a person with short-term care. It is not a long-term solution, but it can help a mentally ill person in crisis if the person
cannot help himself or is a danger to himself or others.

If your client has “issues,” but is not to the point of needing crisis intervention, King County also offers community mental health treatment, client
and family resources, housing, and low-cost mental health service providers.19 In addition to providing resources for mental health issues,
there are resources for people with substance abuse issues.

An Opposing Party or Child

There are no restrictions against divulging information about an opposing party’s mental health issues to the appropriate authorities, as long as the
disclosures are truthful and not used as a threat.20 To ensure the information is accurate, the attorney should not rely on a client’s
statements about the other party’s mental health issues.

It would not be reasonable to expect a clear and accurate assessment of an opposing party by a client since in family law most parties believe the
other person has mental health issues. Passing on information from a family law client, without any independent personal knowledge, would not be
appropriate and could be sanction­able.21

The same King County mental health and chemical abuse resources described above would be available for an opposing party or a child. There also are
other resources for children involved in family law litigation.22

State law provides that a guardian ad litem can be appointed to protect the best interests of a child, the court can appoint an attorney for a child or
the court can interview a child directly.23 These safeguards may be especially important if a child has mental health or substance abuse
issues.

It is difficult enough to sort out the issues between the parents, but the addition of mental health or substance abuse issues of a child can really
cause a case to take unforeseen twists and turns. King County has a new process to help children – Mental Health Wraparound Services.24 This
service is a coordinated process for an individualized plan for a child with significant issues. There are specific eligibility requirements, but the
program could be just what the family law case needs to help resolve or at least deal with various issues.

Mental health issues are present in many family law cases. There are local resources available to help the attorney, the client, the opposing party or
a child deal with these troubles. If you are uncertain what to do as an attorney, the Washington State Bar Association has an ethics line that is open
during normal business hours.25The safest approach may be to encourage your client to call the Crisis Line for immediate assistance if there
is not a life-threatening emergency and to call 911 if there is a life-threatening emergency.

Authors Lisa DuFour (ldufour@integrativefamilylaw.com) and Sharon Friedrich (sfriedrich@integrativefamilylaw.com) are attorneys with Carol Bailey and Associates,
Integrative Family Law. They focus on complex family law cases and welcome topic suggestions or requests for future columns.

1 http://www.kingcounty.gov/healthservices/MentalHealth/Information.aspx

2 RPC 1.4 (a)1).

3 RPC 1.4 (b).

4 RPC 1.14(a).

5 RPC 1.14(b).

6 Id.

7 Id.

8 RPC 1.14 (c); other counties also have crisis and commitment services.

9 http://www.kingcounty.gov/healthservices/MentalHealth/Services/CrisisServices/FAQs.aspx

10 RCW 71.05.150.

11 RCW 71.05.150(3).

12 RCW 71.05.150(4).

13 RCW 71.05.240(3)

14 RCW 71.05.230.

15 RCW 71.05.260.

16 RCW 71.05.230(8). RCW ch. 71.34 governs mentally ill juveniles.

17 RCW 71.05.230.

18 RCW 71.05.280; RCW 71.05.320.

19 http://www.kingcounty.gov/healthservices/MentalHealth.aspx

20 RPC 3.4, RPC 4.1.

21 RPC 4.1.

22 We are not going to address dependency or Juvenile Court matters as they are beyond the scope of this article.

23 RCW 26.09.110, .210, .220; RCW 26.26.555.

24 www.kingcounty.gov/healthservices/MentalHealth/Services/Youth

25 WSBA Ethics Line 206-727-8284 or 800-945-WSBA, ext. 8284.

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