Hawaii residents with mental illnesses so severe and persistent that they don’t even realize they need help can be ordered by a judge to get outpatient treatment. 

But since Hawaii revamped the Assisted Community Treatment law in July 2019, only one person has gotten court-ordered assistance, according to the Institute for Human Services, a service provider that has filed petitions to get people treatment. 

Public defenders, the lawyers who represent mentally ill clients facing ACT petitions, are working to halt the proceedings every step of the way. 

“If I don’t receive consent, I have to object, litigate and fight for everything,” said Taryn Tomasa, a public defender who has represented several ACT clients. “And this is all for something that is really about the implementation of social services.”

Masked person waits with his shopping cart along Hotel Street in Chinatown during COVID-19 pandemic. October 26, 2020
The typical person subject to ACT is experiencing a combination of effects from mental illness, homelessness and substance abuse, according to a public defender who has represented ACT clients. Cory Lum/Civil Beat/2020

As attorneys, public defenders are legally and ethically required to zealously pursue their clients’ interests. That means if clients refuse treatment, their lawyers need to defend their right to make that decision – even if it’s to the clients’ detriment. 

“It’s a real conundrum,” IHS Executive Director Connie Mitchell said. “I understand their legal responsibility. But I feel like I have a moral responsibility.” 

ACT is designed to help people with extreme challenges, Mitchell said. One recent client is so mentally impaired and incapable of caring for himself that maggots are eating away at open wounds. And yet he still doesn’t realize that he’s sick, Mitchell said.

There are clients who end up losing limbs from self-neglect. Some wander the streets naked or walk into traffic. Many suffer from addiction to substances like meth, which can cause profound brain damage.  

“They’re just really not able to make decisions for themselves,” she said. 

Since the Assisted Community Treatment law was reconfigured in 2019, IHS has identified over 70 potential candidates but had only two cases go to trial. The nonprofit provider succeeded in one, now being appealed by the public defender’s office, and lost the other, Mitchell said.

State lawmakers are now considering a change to the law that would cut public defenders out of the process. Through Senate Bill 199 and its companion, House Bill 345, the public defender would be replaced by a guardian ad litem, a court-appointed representative who advocates for the best interests of the client – even if it’s not what the clients say they want. 

IHS Executive Director Connie Mitchell wants to make it easier for clients to get court-ordered treatment. Cory Lum/Civil Beat/2021

Mitchell is hoping the change will result in more people getting help. The bills are supported by others in the behavioral health sector including the Huli Au Ola Area Health Education Center on Maui and the Hawaii Substance Abuse Coalition.

Without public defenders acting as “obstructionists,” Tomasa said the process would be streamlined.

However, some individuals and organizations are concerned about the idea of taking away a person’s right to legal representation.  

“Simply because the Public Defender is making it inconvenient by representing their client is not a good reason to eliminate them from the process,” Louis Erteschik, executive director of The Hawaii Disability Rights Center, said in written testimony. “They are doing their job and representing their clients.”

The Hawaii Department of Health has also expressed reservations.

“We continue to strive for a balance with individuals suffering from acute mental illness where they can be treated during a time where they are, for all intents and purposes ‘unconscious,’ but still assure that their right to self determination and representation during proceedings will be honored,” the department wrote in testimony. “As written, we do not believe that this measure strikes that balance.”

The Attorney General’s office believes removing the public defender may rob clients of due process rights in the U.S. Constitution, according to the office’s written testimony. 

The public defender’s office disagrees. People are entitled to counsel when they are threatened by imprisonment or confinement. But that doesn’t include involuntary outpatient treatment, the public defender’s office stated in written testimony. 

“The ACT process and the individual’s best interest are best served with the appointment of a (guardian ad litem) whose duty is to advise the court on whether ACT is in the best interest of the mentally ill individual,” the office states. 

The public defender’s office said it will continue to litigate against social service providers and family members who are seeking to help their clients without consent.

For Some, Treatment Doesn’t Come Quickly Enough

ACT petitions are a last resort for service providers, Mitchell said. IHS would much rather have a person’s family step in as a guardian to help them make wise decisions and sign paperwork required for government benefits. 

Since IHS launched a city-funded outreach program to pursue ACT cases, IHS has filed or is in the process of filing 14 petitions, Mitchell said. Six have received treatment through a “stipulated order” through the ACT process, meaning they eventually agreed to it. A half dozen people have been matched with guardians instead.

ACT petitions are onerous and heavy on paperwork, Mitchell said.

Person sleeps on sidewalk fronting Kokua Market in Moiiliili during COVID-19 pandemic. December 12, 2020
A quarter of Oahu’s homeless population indicated having a mental illness during the latest Point In Time count. Cory Lum/Civil Beat/2020

The petitioner must determine case histories – including criminal cases and hospitalization records – demonstrate that they have been diagnosed with a mental illness and show that they would benefit from treatment.

Almost immediately upon filing in court, IHS is met with a motion to dismiss from the public defender, she said.

The cases can take so long that clients deteriorate further while IHS pursues their case, Mitchell said. Some have lost brain function, suffered other medical problems or experienced additional trauma from life on the street, according to Mitchell.

“Some people died before we even got to file the court petition,” she said. “Some people ended up in the hospital. One person got run over. She got hit by a car.” 

Regarding the one court order IHS was able to obtain, the man had been homeless for “many many years” and has struggled with schizophrenia and meth addiction, Mitchell said. It took a year, she said. 

He’s still homeless, living in and out of IHS’s shelter. But he is medicated now and his finances are controlled by a representative so he can no longer spend money on meth, Mitchell said. 

“He was a totally different person after he got the medication,” she said. “Before you couldn’t even have a conversation with him. He was just so not there. Now, you can at least talk to him.” 

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