Does being someone’s lawyer make you their “authorized representative” or even a “significant individual,” client-wise? Not if he’s “a dangerous sex offender requiring confinement,” says the Appellate Division. In that case, you’re most likely an annoying buttinsky yapping about “therapeutically counterproductive” notions like due process and autonomy, impeding Doctor from “crafting an appropriate treatment plan.” Mental Hygiene Legal Service v. Sullivan (3rd Dept. 2017).
The plaintiff D.J. is locked up indefinitely in Sex Offender Gulag – which the court describes with a straight face as being a hospitalized patient enrolled in a Care and Treatment Program. The Mental Hygiene statute says he can have an “authorized representative” or “other significant individual” present at his “treatment planning meetings.” “Treatment planning,” in the context of forcible confinement, means how much restraint, deprivation, brainwashing and doping up the patient will be subjected to in Sex Offender Hospital.
So when D.J., sensibly reasoning that his lawyer was an authorized representative and significant individual, asked to have her at the meetings, the Care ‘n’ Treatment folks recoiled like vampires before a cross. “Not entitled as a matter of law!” ruled Head Shrink, brandishing his souvenir shop Juris Doctor diploma. “Counsel’s presence would be therapeutically counterproductive!” But he generously allowed an exception if the lawyer could prove “a genuine interest in the care of the patient,” would guarantee that she was “no longer acting in the role of legal representative” and would keep mum about whatever she heard, especially to her law office, the Mental Hygiene Legal Service (MHLS).
You’d think the Appellate Division, presumably paid-up members of the ABA, would tell the doc to stick to his penile plethysmographs and let lawyers do their job. After all, the Legislature expressly provides lawyers to civilly committed sex offenders for assistance and advocacy, including in treatment planning. If legislatively mandated lawyers aren’t authorized representatives, who is? As for “significant individual,” the Legislature defines it as anyone “concerned with the welfare of the patient.” So what’s not to understand?
But the court, applying the Houdini canon of statutory construction, opined that authorized representative means only someone like a parent or health care proxy who makes ultimate decisions for minors or the hopelessly gaga. MHLS lawyers, in contrast, “must maintain a conventional attorney-client relationship.” What’s a conventional attorney-client relationship? The court doesn’t say, but whatever it is, “it follows that counsel is not an ‘authorized representative.'”
The court wriggles out of recognizing lawyers as significant individuals by saying that “the phrase refers to someone interested in the patient’s welfare and knowledgeable about his or her personal situation rather than someone tasked with providing legal counsel” (emphasis added). Since lawyers’ “narrow legal concerns” are completely at odds with knowing anything about their clients’ personal situation, let alone with giving a flying fish about their welfare, this “compels the conclusion” that they’re not significant individuals. Take that, you client-centered touchy-feely types!
The court is charmingly candid about why lawyers need to be kept out: “[L]egal advocacy may easily conflict with crafting an appropriate treatment plan if the medically advisable treatment conflicts with the client’s legal goals” (citing a case where a lawyer interfered with a patient’s medically advisable treatment by insisting on investigating her claims of abuse by staff).
Nor does D.J.’s lawyer qualify for the Genuinely Caring exception, says the court, since D.J. failed to prove that they “have developed the type of personal relationship” that makes the latter a “significant individual.” His lawyer’s just too darn busy pursuing narrow legal goals.
The dissent, closer to Planet Earth, argues that a “resident” might have legitimate objections to what Sex Offender Hospital calls “care and treatment,” and that his lawyer is both an authorized representative and a significant individual (citing a case where involuntarily committed patients successfully objected to care and treatment in the form of forced medication).
But the majority happily swallows the pretense that civil commitment is “hospitalization” to cure the “patient,” no matter how much it looks, walks and quacks like punishment.
C.S. Lewis long ago described the deadliness of conflating punishment with therapy:
[W]hat had hampered every English police force up to date was precisely the idea of deserved punishment. For desert was always finite: you do so much to the criminal and no more. Remedial treatment on the other hand, need have no fixed limit: it could go on till it had effected a cure, and those who were carrying it out would decide when that was. And if cure were humane and desirable, how much more prevention? Soon anyone who had ever been in the hands of the police at all would come under control of N.I.C.E; in the end every citizen.
C.S. Lewis, That Hideous Strength, 69 (Scribner Paperback Edition, 1996)(1943) (h/t to Art Baer of MHLS who pursues his clients’ legal goals and their welfare).