Having a hearing in front of a judicial officer vs a judge

During the first hearing for a 14 day hold the patient will first present their case in front of a judicial officer in what is known as a a cert review hearing. These hearings are not as formal as a writ of habeas corpus hearing which is heard in front of a judge. Many patients facing these hearings have no idea wha will happen or what they mean. As a patient it is important to know what will happen with the two hearings.


For the cert review hearing, you will present your case in front a judicial officer. The nurse, doctor, patient rights advocate will all be present. The hearing officer will place a recorder on the table to record the proceedings. The proceedings are considered informal but they are still documented and recorded. The hearing officer will make a note of the kind of proceedings will transpire and announce all of the parties present.. After all of the formalities are completed the doctor will be the first to present evidence. He or she may refer to the most recent hospitalization record, diagnosis, past history, and compliance. The nursing staff may propound additional evidence. that they have in notes. Then it is your turn to present what you believe to be your present condition. You can produce evidence that demonstrates medication compliance, evidence that shows you are not a danger to self/others or gravely disabled, and have a viable care plan. You can also cite evidence of taking care of your ADLs and proper care habits. All of these weigh toward making the officer see you as a capable patient who does not need to be involuntarily hospitalized. 

Be aware that these kinds of hearings are hard to win since the burden of proof is quite low being clear and convincing evidence. Usually you will have to present good cause for release which includes that you are not a danger to self or others, will be compliant with treatment in the future, have shelter and provisions should you be discharged that day, and potentially the diagnosis is incorrect. The latter is quite hard to disprove as the court will favour the doctor over patient testimony since the doctor is considered an expert witness. At the end the hearing officer will make a decision and place it into writing. This hearing is quite informal so don't expect too much pomp and circumstance. It may take around 10-15 minutes. I have only seen one person win a writ of habeas corpus hearing. Should the officer find that there is reasonable cause for detention, you will be held for the rest of the 14 day hold. 


For a writ of habeas corpus hearing there are more formal procedures set forth. To begin this will be the first time the patient will present their case in front of .an actual judge. The patient will receive paperwork with a hearing date. They will be assigned counsel to represent them unless they choose to represent themselves. On the day of their hearing it will be a bit similar to a cert review hearing. The judge will hear the doctor's testimony and then hear the patient's testimony through their counsel. Like the hearing officer the judge will enter a judgement be it continue the hold or grant the petition. Once the judge makes an order, it entered into the record and the patient will return to the hospital to continue their hold or be released. The mental health record shall be made confidential and sealed to the public. There is a minute order for the patient to view at a later date. 

Be aware that these hearings are informal and very difficult to win. However, it is also important that patients know what they face. Too often patients are told they have an upcoming hearing and nothing more. The patient then faces a judge or officer without knowing what they are looking for and struggle to present a coherent case.

It is important as counsel or case worker to learn how to talk to mentally ill or what some would call"crazy" people. People who suffer from delusions, are manic, or overall mistrustful of speaking with social workers. Creating and maintaining that rapport with the clients will lead to discovery of valuable information and overall trust. With more trust between client and provider, the entire process is easier and faster.

To build rapport  the client must feel that they trust the social worker and that they have their best interests in mind. The social worker has to master the art of listening to the client's concerns and understanding the basis of what they say. Too often I hear clinicians say to their clients "thats crazy talk", "that doesn't make sense", or even "if you say that shit the public conservator will conserve you" [true conversation]. That doesn't seem too in line with supporting their client. The art of working with mental illness is to know how to couch saying "that is crazy" and rather drive the client to reveal to you through information only that what they perceive is a delusion.

As a investigator you should also strive to gain a clear understanding of the facts. If someone is talking about their body being stolen from them or believing people are out to get them, make an effort to find out "why" they believe that their body is being possessed. Learn the meat of their delusion. If they believe something, there must be facts behind why they believe it. Even if those facts are illogical, it at least lets you know what the person believes is the reason behind their beliefs and this is far better than a blanket statement without any facts. When probing for more, ask "When you wake up, what do you notice that makes you believe that people are stealing from your body. How much is missing? Do you feel them taking such from your body at night or do you wake up and find parts missing mysteriously?" All of these questions show the client that you care about their perspective and take an interest in how they view what happened. Rather than just immediately dismissing their claims as crazy or lies, the social worker shows the client that they have an open mind to believe the client. The client in turn may offer explanations that give light to why they believe such. It also gives the clinician a chance to explain to the court why the client's line of thought without portraying them as too crazy. With more facts in the court report, it will make the client seem a little less crazy as the client will have had a chance to explain them in a manner logical to them. In the rare case you may even find out that the client was not lying and through careful investigative questioning and work the client was telling the truth and the previous investigator had missed some facts.