Interactive Convention 2015 Learning Labs

Transcription

1 Interactive Convention 2015 Learning Labs Seriously Emotionally Disturbed: A District s Legal Right to Help Students Who Are a Danger to Themselves and Others Geneva Englebrecht and Brad Domangue, Thompson & Horton LLP 8.4 Page 1

2 XXXX POLICE DEPARTMENT Policy 8.4 Assisting the Mentally Ill Effective Date: Replaces: Approved: Chief of Police Reference: (This policy should be edited to describe the local jurisdiction s methods for successfully resolving the incidents. The district attorney should be consulted regarding criminal prosecutions in these circumstances. This policy is not currently required under the Texas Best Practices program. Consultation with the agency s local MHMR would also be advised since that might increase cooperation and assistance.) I. POLICY It is the policy of this department to protect an emotionally or mentally unstable person from harming themselves, others, or property. Police work brings officers into contact with persons who are emotionally or mentally unstable. This instability may be due to any number of factors, including alcohol/drug dependency, emotional trauma, or some form of mental illness. Our primary concern in these cases is the safety and welfare of that person, the community, and the officer. An officer who has probable cause to believe that an emotionally or mentally unstable person presents an immediate threat of harm to himself/herself or another person will take that person into protective custody and transport him/her to a facility where trained professionals can evaluate the emotional and mental status of that person. II. PURPOSE The purposed of this policy is to provide officers with guidance on responding to calls involving the mentally ill. III. PROCEDURES A. Recognizing abnormal behavior: Mental illness is often difficult for even trained professional to define in a given individual. Officers are not expected to make judgments of mental or emotional disturbance but rather to recognize behavior that is potentially destructive and/or dangerous either to the person or others. The following are generalized signs and symptoms of behavior that may suggest mental illness although officers should not rule out other potential causes, such as reactions to narcotics or alcohol or temporary emotional disturbances that are 8.4 Page 2

3 situationally motivated. Officers should evaluate the following and related symptomatic behavior in the total context of the situation when making judgments about an individual s mental state and the need for intervention absent the commission of a crime. 1. Degree of Reactions. Mentally ill persons may show signs of strong and unrelenting fear of persons, places, or things. The fear of people or crowds, for example, may make the individual extremely reclusive or aggressive without apparent provocation. 2. Appropriateness of Behavior. An individual who demonstrates extremely inappropriate behavior for a given context may be emotionally ill. For example, a motorist who vents his frustration in a traffic jam by physically attacking another motorist may be emotionally unstable. 3. Extreme Rigidity or Inflexibility. Emotionally ill persons may be easily frustrated in new or unforeseen circumstances and may demonstrate inappropriate or aggressive behavior in dealing with the situation. 4. In addition to the above, a mentally ill person may exhibit one or more of the following characteristics: a. abnormal memory loss related to such common facts as name, home address, (although these may be signs of other physical ailments, such as injury or Alzheimer s disease); b. delusions, the belief in thoughts or ideas that are false, such as delusions of grandeur ( I am Christ. ) or paranoid delusions ( Everyone is out to get me. ); c. hallucinations of any of the five senses (e.g., hearing voices commanding the person to act, feeling one s skin crawl, smelling strange odors, etc.); d. the belief that one suffers from extraordinary physical maladies that are not possible, such as persons who are convinced that their heart has stopped beating for extended periods of time; e. extreme fright or depression. 5. Determining Danger: Not all mentally ill persons are dangerous while some may represent danger only under certain circumstances or conditions. Officers may use several indicators to determine whether an apparently mentally ill person represents an immediate or potential danger to himself/herself, the officer, or others. These include the following: a. The availability of any weapons to the suspect. b. Statements by the person that suggest to the officer that the individual is prepared to commit a violent or dangerous act. Such comments may range from subtle innuendo to direct threats that, when taken in conjunction with other information, paint a more complete picture of the potential for violence. c. A personal history that reflects prior violence under similar or related circumstances. The person s history may be known to the officer, the family, friends, or neighbors, who may be able to provide such information. 8.4 Page 3

4 d. Failure to act prior to arrival of the officer does not guarantee that there is no danger, but it does in itself tend to diminish the potential for danger. e. The amount of control that the person demonstrates is significant, particularly the amount of physical control over emotions of rage, anger, fright, or agitation. Signs of a lack of control include extreme agitation, the inability to sit still or to communicate effectively, wide eyes, and rambling thoughts and speech. Clutching one s self or other objects to maintain control, begging to be left alone, or offering frantic assurances that one is all right may also suggest that the individual is close to losing control. f. The volatility of the environment is a particularly relevant factor that officers must evaluate. The surroundings should be kept as calm as possible. Any elements that agitate the environment, or that make for a particularly combustible environment, or that may incite violence should be taken into account. IV. APPROACH AND INTERACTION General Guidelines A. The following general guidelines detail how to approach and interact with a person who may have a mental illness and who may be a crime victim, witness, or suspect. These guidelines should be followed in all contacts, whether on the street or during more formal interviews and interrogations. Officers, while protecting their own safety, the safety of the person with mental illnesses, and others at the scene should do the following: 1. Recognize that these events are dangerous and officers must be prepared to protect themselves and others. The person may be suffering from mental instability, extreme emotions, paranoia, delusion, hallucinations, or intoxication. 2. Remain calm and avoid overreacting. Surprise may elicit a physical response, or the person s fight or flight may be engaged. 3. Approach the individual from the front. 4. Be helpful and professional. 5. Provide or obtain on-scene emergency aid when treatment of an injury is urgent. 6. Check for and follow procedures indicated on medical alert bracelets or necklaces. 7. Indicate a willingness to understand and help. Use active listening, and paraphrase responses. 8. Use the person s name and your name when possible. 9. Speak slowly, simply and briefly. 10. Move slowly. 11. Remove distractions, upsetting influences, and disruptive people from the scene. 12. Understand that a rational discussion may not take place. 8.4 Page 4

5 13. Recognize that sensations, hallucinations, thoughts, frightening beliefs, sounds ( voices ), or the environment are real to the person and may overwhelm the person. 14. Be friendly, patient, accepting, and encouraging, but remain firm and professional; 15. Be aware that your uniform, gun, and/or handcuffs may frighten the person with mental illnesses. Reassure him or her that no harm is intended. 16. Attempt to determine if the person is taking any psychotropic medications. 17. Announce actions before initiating them. 18. Gather information from family or bystanders. 19. Use patience and communications to control. 20. Use physical force only as a last resort. 21. Don t be afraid to ask direct questions about what the person is experiencing, such as, Are you hearing voices? Are you thinking of hurting yourself? Are you in need of something? B. Officers should be aware that their own actions might have an adverse effect on any situation that involves a mentally ill person. Actions that officers should generally avoid include the following: 1. Moving suddenly, startling the person, giving rapid orders, or shouting. 2. Forcing discussion. 3. Cornering or rushing. 4. Touching the person (unless essential for the safety of the person, bystanders, or the officer involved). 5. Crowding the person or moving into his or her zone of comfort. 6. Expressing anger, impatience, or irritation. 7. Assuming that a person who does not respond cannot hear. 8. Using inflammatory language, such as mental or mental subject. 9. Challenging delusional or hallucinatory statements; 10. Misleading the person to believe that officers on the scene think or feel the way the person does. C. The department shall provide training to all department personnel. This training shall be provided to all newly hired personnel during their first week of employment, with refresher training given to all personnel at least every three (3) years. V. EMERGENCY APPREHENSION AND DETENTION A. HSC defines mental illness" as an illness, disease, or condition, other than epilepsy, senility, alcoholism, or mental deficiency, that has the following effects: 1. Substantially impairs a person's thought, perception of reality, emotional processes, or judgment; or 2. Grossly impairs behavior as demonstrated by recent disturbed behavior. 8.4 Page 5

6 3. HSC empowers peace officers without a warrant to take into custody a person if the officer has reason to believe and does believe the following: a. the person is mentally ill; and b. because of that mental illness there is a substantial risk of serious harm to the person or to others unless the person is immediately restrained; and c. believes that there is not sufficient time to obtain a warrant before taking the person into custody. 4. A substantial risk of serious harm to the person or others under Subsection (a)(1)(b) may be demonstrated by the following: a. the person's behavior; or b. evidence of severe emotional distress and deterioration in the person's mental condition to the extent that the person cannot remain at liberty. 5. The peace officer may form the belief that the person meets the criteria for apprehension on the basis of the following: a. representation of a credible person; b. the conduct of the apprehended person; c. the circumstances under which the apprehended person is found. 6. A peace officer who takes a person into custody shall immediately transport the apprehended person to: a. the nearest appropriate inpatient mental health facility; or b. a mental health facility deemed suitable by the local mental health authority, if an appropriate inpatient mental health facility is not available. 7. A jail or similar detention facility may not be deemed suitable except in an extreme emergency. 8. A person detained in a jail or a non-medical facility shall be kept separate from any person who is charged with or convicted of a crime. B. Juvenile Mentally Ill Patients: Emergency detention procedure for juveniles is the same as for adults. VI. TAKING A PERSON INTO CUSTODY FOR EMERGENCY DETENTION A. If an officer determines that an emergency detention is necessary, the following procedures will be utilized: 1. A minimum of two officers should be present before any action is begun toward taking the subject into custody. 2. An officer who feels that a patient should be taken into custody will not force entry into the home of the mentally ill person/her unless a life is in immediate danger. 3. The officers taking the person into custody will apply handcuffs for transport. The officers should explain that handcuffs are necessary for everyone s protection. They should use front cuff with belt restraint if possible. Officers who believe the subject will not resist should inform the subject of their intentions beforehand and explain their reasoning. Officers 8.4 Page 6

7 who believe the subject will resist should understand that immediate forceful action may be necessary to restrain the individual. Officer safety is paramount. 4. Officers are reminded that the use of force is authorized to the extent necessary to take the subject into custody. 5. The officers should proceed to the mental health facility and turn the subject over to the staff. 6. The officers must complete an application for emergency detention, which details actions of the subject that led the officer to believe there was danger to the subject or to others. 7. The officer must complete a miscellaneous incident report detailing the event and attach a copy of the petition to the report. 8. The officer should consider providing the mental health facility with a copy of the vehicle AVR tape for review by the interviewing doctor. B. Physically Ill Mentally Disturbed Persons. When a mentally ill person is also physically ill or injured so that transport by ambulance is necessary, an officer will ride in the rear of the ambulance with the person. VII. CRIMINAL OFFENSES INVOLVING THE MENTALLY ILL A. If an officer believes that an individual who commits a crime is exhibiting symptoms of mental illness and the person is an immediate danger to himself/herself or others, the officer should apprehend the person and take him/her to a mental health facility under an Application for Emergency Detention. The officer will prepare an offense report that provides all the details of the offence and a description of the subject s behavior. If an evaluation determines that the individual is competent he/she will be filed on for the offense and an arrest warrant obtained. B. Individuals who commit criminal acts and are believed by the officer to be exhibiting symptoms of mental illness but there is no evidence that the person is an immediate danger to themselves or others should be treated as follows: 1. If the offense is a misdemeanor, release to a competent adult caregiver or booked into jail. If booked into jail, every attempt will be made to locate a caregiver and release the person to the caregiver on personal recognizance. 2. If the offense is a felony, the individual will be booked into jail and every attempt will be made to contact a caregiver. The individual will be required to make bond. 3. In cases of family violence, a supervisor or the Chief of Police should be consulted to determine an appropriate response. 4. In any case involving a person whom the officer suspects is mentally ill is booked into jail, but not housed with other inmates. Every effort will be made to monitor that person s safety. Process the individual as quickly as possible to remove him/her from the facility. 5. Juveniles who are suspected of being mentally ill but non-violent who are being cared for by a responsible person will not be detained unless a felony has been committed. 8.4 Page 7

8 6. Violent juveniles who are suspected of being mentally ill or those who have committed a felony will be transported to the mental health facility. VIII. REPORTING A. If a criminal incident involving a mentally ill person is reported, all pertinent information involving the offense must be included in that report. B. Certain individuals may habitually display unusual behavior that is or may become well known to the police department. Whenever contact is made with these individuals, a Field Interview (FI) card should be completed. C. Information that is included in the computer-aided dispatch (CAD) regarding a mentally ill person who is a hazard to police officers should be written up by a supervisor and sent to the communications supervisor. IX. REFERRALS TO MENTAL HEALTH FACILITIES A. When a police employee receives a telephone call from a person who appears to be mentally disturbed or irrational, the employee should proceed as follows: 1. Obtain the caller's name, telephone number, and address or the location from which the individual is calling. 2. If the caller indicates that any life, including the caller s, may be in danger, an officer will be sent and the on-duty patrol supervisor advised of the situation. 3. If the caller is not an immediate threat to themselves or others, the employee may suggest that the caller contact a local mental health center for assistance. 4. When an officer is dispatched to a call in which a person has attempted suicide or is threatening suicide, the officer shall make certain that the immediate situation is stabilized. The officer shall also attempt to locate a relative, close friend, or other responsible party who is available. The officer shall then contact the appropriate mental health facility/provider for assistance and/or emergency detention. An incident report shall be completed regarding the attempted suicide. Disclaimer for Use of this Sample Policy Manual: Notification to CEO Delete before Issuing Every effort has been made by the Best Practices Program staff and reviewers to ensure that this sample policy incorporates the most current information and contemporary professional judgment on this issue. It has been constructed from samples and models submitted and produced from other Texas and national agencies. However, CEOs should be cautioned that no sample policy can meet the needs of any specific law enforcement agency. Each law enforcement agency operates in a different environment and administrative decisions, collective bar gaining agreements and many other issues must be taken into consideration. The policies issued by an agency head are the sole responsibility of the issuing CEO and the department which he or she supervises. CEOs are cautioned to review and edit these policies to ensure they clearly describe the desired departmental operations. CEOs are also advised they should have any policy reviewed by their city attorney or other legal counsel prior to placing a policy into place. No warranty is expressed or implied. The Texas Police Chiefs Association, its employees and 8.4 Page 8

9 members and the Texas Police Chiefs Association Foundation and its governing board accept no responsibility for the accuracy or the legal status of any information contained in the Sample Policy Manual. This project was supported by the Texas Best Practices Recognition Program under the supervision of the Texas Police Chiefs Association Foundation. Points of view or opinions in this document do not represent the official position or policies of the Texas Police Chiefs Association or the Texas Police Chiefs Association Foundation. Downloading and use of these sample policies indicates the acceptance of full responsibility for its content and use. 8.4 Page 9

10 Seriously Emotionally Disturbed: A District's Legal Right To Help Students Who Are A Danger To Themselves And Others. Geneva Englebrecht Bradley Domangue Thompson & Horton LLP 3200 Southwest Freeway, Suite 2000 Houston, Texas gle@thompsonhorton.com bdomangue@thompsonhorton.com National Statistics on students with emotional disturbance During the school year, 373,000 students qualified for special education and related services in the United States as students who met the eligibility criteria for Serious Emotional Disturbance. U.S. Department of Education, National Center for Education Statistics. (2015). Digest of TEA Statistics During the school year, 26,115 students attending Texas schools qualified for special education and related services as students who met the eligibility criteria for emotional disturbance. 1

11 IDEA Definition Serious Emotional Disturbance: A condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a child's educational performance: (A) An inability to learn that cannot be explained by intellectual, sensory, or health factors. (B) An inability to build or maintain satisfactory interpersonal relationships IDEA Definition (Cont.) (C) Inappropriate types of behavior or feelings under normal circumstances. (D) A general pervasive mood of unhappiness or depression. (E) A tendency to develop physical symptoms or fears associated with personal or school problems. Emotional disturbance includes schizophrenia. The term does not apply to children who are socially maladjusted, unless it is determined that they have an emotional disturbance under paragraph (c)(4)(i) of this section. 34 C.F.R (b)(4). 19 TEC (c)(4) Emotional disturbance. A student with an emotional disturbance is one who has been determined to meet the criteria for emotional disturbance as stated in 34 CFR 300.8(c)(4). The written report of evaluation must include specific recommendations for behavioral supports and interventions. 2

12 Characteristics Verbal and/or physical aggression Self-injurious behaviors Defiance Challenging authority Elopement Withdrawal Anxiety/fear/poor coping skills Reactionary behaviors Characteristics (Cont.) Perseverations Mood instability Distorted thinking Auditory and/or verbal hallucination Destructive Disruptive Impulsive Inability to de-escalate Hyper-sexuality/inappropriate sexual behavior Typical Services/Interventions School/classroom behavior management system Behavior Contracts IEP behavior goals and objectives Positive Behavior Support Plan/Behavior Intervention Plan Placement in a behavior classroom (ED class) 3

13 Non-Typical Services/Interventions Aide Support/Supervision Placement in nonpublic schools (NPS) Placement in residential treatment centers (RTC) Student counseling Parent training Counseling As A Related Service Counseling services are those services provided by qualified social workers, psychologists, guidance counselors, or other qualified personnel. 34 CFR (c)(2) Counseling (Cont.) Students must receive counseling, psychological, and social work services where those services are required for the student to receive an educational benefit. Spring Hill Indep. Sch. Dist., 114 LRP (SEA TX 07/10/14) 4

14 Parent Counseling/Training Parent counseling and training is a related service that is available to parents. 34 CFR (c)(8) Nonpublic School An independent hearing officer found that the school district offered FAPE in the LRE when it offered the student placement in a certified nonpublic school serving children with behavioral difficulties rather than in a special day class in his local public school. The hearing officer noted that the school district had implemented numerous supplementary aids and services prior to recommending its more restrictive placement. New Haven Unified Sch. Dist., 44 IDELR 207 (SEA Health and Safety Code Chapter 573 Involuntary Mental Health Commitments 5

15 Emergency Detention Sec APPREHENSION BY PEACE OFFICER WITHOUT WARRANT. (a) A peace officer, without a warrant, may take a person into custody if the officer: (1) has reason to believe and does believe that: (A) the person is mentally ill; and (B) because of that mental illness there is a substantial risk of serious harm to the person or to others unless the person is immediately restrained; and (2) believes that there is not sufficient time to obtain a warrant before taking the person into custody. Emergency Detention (Cont.) (b) A substantial risk of serious harm to the person or others under Subsection (a)(1)(b) may be demonstrated by: (1) the person's behavior; or (2) evidence of severe emotional distress and deterioration in the person's mental condition to the extent that the person cannot remain at liberty. (c) The peace officer may form the belief that the person meets the criteria for apprehension: (1) from a representation of a credible person; or (2) on the basis of the conduct of the apprehended person or the circumstances under which the apprehended person is found. Emergency Detention (Cont.) (d) A peace officer who takes a person into custody under Subsection (a) shall immediately transport the apprehended person to: (1) the nearest appropriate inpatient mental health facility; or (2) a mental health facility deemed suitable by the local mental health authority, if an appropriate inpatient mental health facility is not available. (e) A jail or similar detention facility may not be deemed suitable except in an extreme emergency. (f) A person detained in a jail or a nonmedical facility shall be kept separate from any person who is charged with or convicted of a crime. 6

16 Types of Law Enforcement Officers School Resource Officers (Contracted Officers) v. School Police (Employees of the District) Developing Policies and Procedures Each school district should establish polices and procedures for addressing mental health emergencies/crisis. Consider some of the following policies: School District Crisis Team Multidisciplinary team including, but not limited to, a campus administrator, special education supervisor/administrator, mental health processional/counselor, safety professional. The crisis team is called immediately for all mental health crisis and if necessary will contact law enforcement for an evaluation for involuntary commitment. 7

17 Law Enforcement Policy should identify under what circumstances law enforcement will be contacted and who is authorized to contact law enforcement. Referral procedures Reporting procedures Parent Notification Policy should include the school district s procedures for parent notification. Location of Incident The policy should address the location of the incident. For example, whether the incident occurred: 1. On campus during school hours; 2. At an after school sponsored activity; 3. On a school bus or school vehicle; or, 4. In the community. 8

18 Professional Development Staff should receive annual professional development on the risk factors, warning signs, procedures, and resources available when they believe a student is a danger to themselves or others. Clarify role of school personnel. Give specific directions for contacting the crisis team. Re-Entry Procedures Procedures should include action taken when a student returns to school from a voluntarily or involuntarily psychiatric commitment. For example: 1. Hold an ARD committee meeting. 2. Seek authorization to release and exchange information from the psychiatric providers Policy Publication Board policy, school police policy, employee policy, student and parent handbooks should be updated to reflect the district procedures for addressing mental health crisis. 9

19 Cautionary Tale A special education student who was agitated after receiving an infraction for violating the schools disciplinary code banged his backpack on top of a bookshelf damaging the top shelf. District staff allowed the student to call his mother and the student de-escalated and was sent to the office. Cautionary Tale (Cont.) The assistant principal, hearing of the incident called the school police officer anticipating a need for additional assistance. The assistant principal decided that the student should go home for the remainder of the day. The police officer decided independently to arrest the student for property damage to the bookshelf. Cautionary Tale (Cont.) The special education student resisted the officers attempts to handcuff him and was inured in the process. When the mother arrived she found the special education student crying and handcuffed in the back of a police car. Spring Branch Ind. School District v. Student; TEA 088-SE-1101; 102 LRP

20 What are the issues? School district s cannot use law enforcement in lieu of implementing behavior plans. School district s cannot use law enforcement as disciplinary alternative. Unnecessary involvement of law enforcement may traumatize a special education student. The Outcome Hearing Officer held that: 1) There is nothing in IDEA that prohibits teachers or administrators from seeking the assistance of law enforcement personnel. 2) The hearing officer was limited to issues involving the IDEA (as opposed to civil rights laws) and therefore the issues did not fall within the purview of the IDEA. Title II of the Americans with Disabilities Act of 1990 No qualified individual with a disability, shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. 42 U.S.C

21 Law Enforcement Activities Essential government functions, including involuntary commitments and arrest, are activities covered by the Americans With Disabilities Act (ADA). Case In Point Police Officers transported an individual with bipolar disorder to an emergency department for an involuntary commitment. The man escaped and the police officers were re-dispatched to the individuals home to take him back to the hospital. The individual became violent and the officers shot and killed the man. Schorr v. Borough of Lemoyne et al. (2003); Case in Point (Cont.) Individual s family brought an ADA claim alleging that the officers were not properly trained and failed to institute polices to accommodate individuals who were disabled. The Court agreed and found that the police discriminated against the individual. 12

22 Relationship with Local Law Enforcement and District Attorney/Prosecutors Relationship Many local law enforcement agencies have a crisis intervention response team that includes specially trained officers. Some officers may not understand the nature of special education needs and requirements and a district s responsibility to students with mental illness. Some district attorneys/prosecutors may not understand the nature of special education needs and requirements and a Questions? Incidents that come to mind? Other solutions or methods? 13