Legal Digest
Ruling and Reasoning
The Alaska Supreme Court held that expert witness testimony given by Ms. Oxford qualified under
section 1912(e) of the ICWA because knowledge of
the minor’s specific Native culture was not directly
relevant to the determination of present danger to
herself or others as the result of a serious mental illness. The court examined the ICWA and its regulations, the BIA Guidelines, and prior Alaska case law.
ICWA identifies the requirements for child custody
proceedings involving Indian children. It states that
any removal of an Indian child from the parent must
be in settings where “the continued custody of the
child by the parent or Indian custodian is likely to
result in serious emotional or physical damage to the
child” (25 U.S.C. § 1912(f)).
The ICWA regulations also outline requirements
for expert witness testimony. Though ICWA regulations indicate a qualified expert witness is
someone who has knowledge on “the prevailing
social and cultural standards of the Indian child’s
Tribe” (25 C.F.R. § 23.122(a) (2019)), the BIA
has published further guidelines for interpreting
the requirements. These guidelines indicate that
knowledge of Alaska Native culture “may not be
necessary if such knowledge is plainly irrelevant
to the particular circumstances at issue in the proceeding” (BIA, U.S. Department of the Interior,
Guidelines for Implementing the Indian Child
Welfare, p 54 (2016)). Additionally, the Alaska
Supreme Court identified the holding in Eva H.
as precedent that “a qualified expert witness
under ICWA need not always have knowledge of
Native culture” (In re April S., p 1099).
On the basis of the above reasoning, the Alaska
Supreme Court agreed with the superior court’s
analysis and affirmed the ruling. They found Ms.
Oxford was qualified as an expert witness under
ICWA even though she had little knowledge of the
Alaska Native culture.
Discussion
This case further outlines who may qualify as an
expert witness under the ICWA. In the past several
years, we have seen continued regulation of how to
interpret and apply the ICWA. For instance, in
2016, the BIA formalized their prior recommended
guidelines for interpreting the ICWA into regulations and stated that “a qualified expert witness must
be qualified to testify regarding whether the child’s
continued custody by the parent or Indian custodian
is likely to result in serious emotional or physical
damage to the child and should be qualified to testify
as to the prevailing social and cultural standards of
the Indian child’s Tribe” (25 C.F.R. § 23.122(a)).
The Alaska court system has also ruled previously
on when someone may not qualify as an expert witness (Bob S. v. State, 400 P.3d 99 (Alaska 2017)) and
noted instances where cultural knowledge may not
be required to qualify as an expert witness (Oliver N.
v. State, 444 P.3d 171 (Alaska 2019)).
It will be important to monitor whether this ruling, and the reasoning supporting it, is used as precedent in future cases involving the ICWA. In
particular, given the recent emphasis on inherent bias
within a variety of systems in our society, it may be
useful to track cases that are recognized as the “limited exception” to the requirement that an expert
witness have knowledge of Native culture when considering a Native child’s needs. Broadly speaking for
expert witnesses, it may be prudent to consider asking questions about a potential evaluee’s identified
culture, the potential impact of culture on the matters relevant to the case, and whether the expert can
assess relevant cultural factors prior to accepting a
case. For example, when considering whether to
work on a case involving Native children, experts
should have knowledge of the ICWA and be able
to discuss with attorneys and courts whether it
applies to a particular case. In addition, experts
should have the ability to discuss exceptions to
ICWA and when they apply with attorneys and
courts. The development of continuing medical
education courses focused on the application of
cultural formulation and cultural competency in
the forensic settings would be valuable in assisting
experts in such cases.
Lack of Adequate Mental Health
Treatment for Prisoners
Constitutes Cruel and Unusual
Punishment
Laura McCabe, MD
Fellow in Forensic Psychiatry
Richard L. Frierson, MD
Alexander G. Donald Professor of Psychiatry
Volume 49, Number 2, 2021
257
Legal Digest
Department of Neuropsychiatry and Behavioral
Science
University of South Carolina School of Medicine
Columbia, South Carolina
Failure to Provide Mental Health Treatment
and Inappropriate Use of Solitary
Confinement for Seriously Mentally Ill
Prisoners Violates Eighth Amendment
DOI:10.29158/JAAPL.210040-21
Key words: Eighth Amendment; cruel and unusual punishment; serious mental illness; solitary confinement; deliberate indifference
In Disability Rights Montana, Inc. v. Batista, 93
F.3d 1090 (9th Cir. 2019), the U.S. Court of
Appeals for the Ninth Circuit reversed the district
court’s dismissal of a 42 U.S.C. § 1983 claim by
Disability Rights Montana, Inc., that alleged the
Montana Department of Corrections defendants violated the Eighth Amendment rights of all prisoners
with serious mental illness incarcerated at the
Montana State Prison. The court remanded the case
for further proceedings and reassigned the case to a
different district court judge.
Facts of the Case
Disability Rights Montana, Inc. (DRM), is a nonprofit organization authorized by the Protection and
Advocacy for Individuals with Mental Illness Act to
advocate for and protect the rights of mentally ill
individuals in Montana. DRM filed a 42 U.S.C. §
1983 suit in the U.S. District Court for the District
of Montana alleging that Mike Batista, the director
of the Montana Department of Corrections, and
Leroy Kirkegard, the warden of the Montana State
Prison (known collectively as the Department
of Corrections defendants) violated the Eighth
Amendment rights of all inmates with serious mental
illness who are incarcerated at the Montana State
Prison. DRM alleged that policies and practices in
place at the prison amounted to cruel and unusual
punishment, and that the Department of Corrections
defendants were aware of and deliberately indifferent
to these practices.
DRM outlined nine specific policies and practices
that they alleged violated prisoners’ rights. These policies primarily involved the excessive and inappropriate use of solitary confinement with prisoners with
serious mental illness, failure to properly diagnose
258
and treat prisoners with serious mental illness, failure
to consider prisoners’ mental illness when deciding
their housing and custody levels, and failure to
review and evaluate prisoners’ mental health care
treatment plans adequately to identify and fix potential problems.
DRM supported their claim that the use of solitary
confinement in seriously mentally ill inmates is cruel
and unusual by citing statements from two national
organizations and an amicus brief that inmates with
serious mental illness should not be subjected to prolonged periods of extreme isolation. DRM went on to
detail how placing a prisoner in solitary confinement
limits their access to mental health treatment. They
also alleged that the defendants failed to respond
appropriately to reports of suicidal ideation from prisoners, which resulted in an increased risk of suicide
among prisoners with serious mental illness.
To illustrate how the above policies and practices
directly affected inmates, DRM described the care of
nine prisoners who had at one point received a diagnosis of a serious mental illness. They alleged that
these prisoners, all of whom spent time in various
forms of solitary confinement, received inadequate
mental health care. This led to a worsening of their
mental illness, as well as an increase in self-harm.
Three of the nine prisoners died from suicide while
incarcerated.
Finally, DRM alleged that the Department of
Corrections defendants were aware of the constitutionally suspect practices as they were involved in at
least two previous lawsuits related to the prison’s provision of mental health care to prisoners and the
inappropriate use of solitary confinement with prisoners with serious mental illness. They also noted
that prisoners frequently submitted requests for and
grievances about their mental health care, and that
DRM themselves sent a letter to Mr. Batista detailing
many of these above complaints. Despite being aware
of the concerns, the Department of Corrections
defendants failed to remedy their practices.
In response to the suit, the Department of
Corrections defendants filed a motion to dismiss for
failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6). The district court granted the
motion to dismiss, and DRM appealed.
Ruling and Reasoning
The U.S. Court of Appeals for the Ninth Circuit
reversed the district court’s ruling and remanded the
The Journal of the American Academy of Psychiatry and the Law
Legal Digest
case to a different district court judge for further proceedings. The court of appeals noted that there is a
well-established U.S. Supreme Court precedent that
applies the Eighth Amendment’s prohibition against
cruel and unusual punishment to prisoners’ right to
receive mental health care that meets “minimum
constitutional requirements.” In Brown v. Plata, 563
U.S. 493 (2011), the Court held that prisoners’
Eighth Amendment rights are violated when they
are exposed to a substantial risk of serious harm
and prison officials are deliberately indifferent to
this risk.
The court of appeals further relied on a two-prong
test for cruel and unusual punishment described in
Farmer v. Brennan, 511 U.S. 825 (1994). Under the
first, objective prong, the plaintiff must show that
prison conditions posed a “substantial risk of serious
harm” to inmates. The court of appeals held that
DRM’s complaint contained sufficient factual
allegations and, if true, that the policies and
procedures of the prison may have posed a substantial risk of serious harm to inmates with serious mental illness. Specifically, DRM named
nine system-wide practices that they allege were
constitutionally deficient. They also described
in detail the treatment of nine prisoners who
were alleged to have serious mental illness.
DRM’s allegations of a substantial risk of serious harm were further supported by common
sense and expert evidence presented in an amicus brief.
Next, the court of appeals discussed the second,
subjective prong. Under the subjective prong, the
plaintiff must show that the defendants were deliberately indifferent to the risk of harm. To demonstrate
deliberate indifference, the plaintiff must show that
the defendants were “aware of the facts from which
the inference could be drawn that a substantial risk
of serious harm exists” (Farmer, p 837), that the
defendants drew the inference of risk, and that they
were indifferent to the risk by failing to act. The
court of appeals held that DRM satisfied this subjective prong by detailing the numerous complaints
that the Department of Corrections defendants had
received about harmful prison practices and deficient
mental health treatment. This included two lawsuits
against the prison, multiple grievances from prisoners, and letters to the Department of Corrections
defendants from DRM itself. Despite being aware of
the risks to prisoners, the Department of Corrections
defendants failed to act and chose to maintain the
damaging policies.
On remand, the court assigned the case to a different district court judge to “preserve the appearance
of justice” (Batista, p 1100). The court concluded
that the first judge acted without ill will but had confused the case with another case.
Discussion
This case outlines several matters that are relevant
to mental health providers, particularly those working in a correctional setting. Citing Brown, the court
of appeals stated that there are “clear connections
between mental health treatment and the dignity
and welfare of prisoners” (Brown, p 501). While
this case focused on the harm that placing prisoners with serious mental illness in solitary confinement can cause, there were also allegations
about inadequate mental health treatment. In
particular, the plaintiffs described accounts of
prisoners who at some point had a serious mental illness diagnosis. These prisoners were allegedly subjected to various forms of solitary
confinement, often for punishment or control of
behaviors that may be attributed to symptoms of
a mental illness. Additionally, it was noted that
prisoners rarely saw mental health providers
while in solitary confinement, if at all. Most
commonly they would meet with a mental health
technician for a few minutes once a week at the
door of their cell, without any accommodations
for privacy.
There were allegations that mental health providers, including the prison psychiatrist, failed to
diagnose serious mental illness in prisoners or to provide them with medications for their reported mental
illness. These allegations were based on reports that
prisoners who at one time had a diagnosis of a serious
mental illness and were treated with psychotropic
medications were later determined to not have a
major mental illness or to be malingering their symptoms and were subsequently taken off of their psychotropic medications. Another common complaint
was mental health providers’ failures to respond to
threats of suicide from prisoners. It was noted in the
original suit that mental health providers often attributed threats of suicide, including self-injurious
behaviors, to manipulation on the part of the prisoner. At times the staff responded to these threats by
placing the prisoner in solitary confinement. The
Volume 49, Number 2, 2021
259
Legal Digest
suit alleged that this dismissal of self-harm and suicidal thoughts led to an increase in deaths from
suicide in prisoners with serious mental illness.
Another main complaint was the lack of routine
review of prisoners’ mental health care treatment
plans, leading to an inability to identify major
concerns or inadequacies.
While this case did not address the actual factual
nature of the specific allegations themselves, it is relevant that the claims about mental health practices,
taken as factual for the purpose of this appeal, were
found to be sufficiently plausible to constitute cruel
and unusual punishment on the part of the prison
administration. This case highlights potential caveats
that psychiatrists should be aware of when working in
the correctional system, particularly when diagnosing
and treating mental illness and working with the correctional staff to determine how a prisoner’s mental illness should affect their housing and custody status.
Legal Standard for Emergency
Mental Health Seizure by Law
Enforcement
Casey L. Gregoire, DO
Fellow in Forensic Psychiatry
Kaustubh G. Joshi, MD
Associate Professor of Clinical Psychiatry
Associate Director, Forensic Psychiatric Fellowship
University of South Carolina School of Medicine
Columbia, South Carolina
Marie E. Gehle, PsyD
Chief Psychologist
South Carolina Department of Mental Health
Columbia, South Carolina
Law Enforcement Can Seize Individuals for an
Emergency Mental Health Evaluation Only If
There Is Probable Cause That the Individual
Poses an Emergent Danger to Self or Others
DOI:10.29158/JAAPL.210040L1-21
Key words: emergency mental health seizure; probable
cause
In Graham v. Barnette, 970 F.3d 1075 (8th Cir.
2020), Teresa Graham appealed the district court’s
260
granting of summary judgment for Sergeant
Shannon Barnette, Officer Mohamed Noor, Officer
Amanda Sanchez, and the City of Minneapolis
(herein referred to as City) after the above-mentioned officers entered Ms. Graham’s home without
a warrant, seized her, and transported her to a hospital for a mental health evaluation. The Eighth
Circuit Court of Appeals affirmed.
Facts of the Case
Around 10 a.m. on May 25, 2017, Ms. Graham
called 911 to report an unknown man was smoking
marijuana on a retaining wall behind her home. A
City police officer went to Ms. Graham’s home later
that morning, did not see a man, and left without
speaking to her. She called 911 several hours later to
complain that officers had not responded to her initial call.
Around 6 p.m., a police officer called Ms. Graham
and informed her that they had investigated her earlier report. Shortly thereafter, an individual claiming
to be Ms. Graham’s cousin called 911 to report that
Ms. Graham had threatened him and his family; the
dispatcher passed this comment to the responding
officers. This caller told the 911 dispatcher that “this
is not an emergency” and that he did not believe she
would “do anything.” He requested a “welfare check”
because he believed Ms. Graham had a history of
mental illness.
Two hours later, Officers Noor and Sanchez went
to Ms. Graham’s home; this encounter was recorded
on Officer Sanchez’s body camera. Ms. Graham
answered the door, accused the police of harassing
her, and demanded they leave. The officers left; they
noted in their incident report that she “appeared to
be AOK” although they were unable “to check on
her welfare” due to her insistence that they leave.
Within one hour, a 911 operator reported Ms.
Graham had called three more times. The 911 operator described Ms. Graham as agitated, aggressive,
and “not making sense.” Sergeant Barnette called
Ms. Graham to address her concerns. Ms. Graham
then called 911 two more times.
Sergeant Barnette ordered Officers Noor and
Sanchez to bring Ms. Graham into custody for a
mental health evaluation under Minnesota’s Civil
Commitment and Treatment Act (MCCTA), Minn.
Stat. § 253B.05 (2)(a) (2017), on the basis of the
officers’ interactions with Ms. Graham throughout
the day. This Act authorized an officer to seize a
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Rafael Domingo Osle
University of Navarra
Aleksander Stępkowski
University of Warsaw
francesco clementi
Università degli Studi "La Sapienza" di Roma
Giacomo Delledonne
Scuola Superiore Sant'Anna
