Mental Health Red Flags for Legal Practitioners

By Carolyn Reinach Wolf, Esq., Sarah A. Chussler, Esq., and Caraline Mikkelsen, Esq.

Families with a loved one who suffers from a mental illness often feel helpless and may struggle to convince their ill relative to accept treatment. In these circumstances, families should be aware of mental health red flags and the legal remedies which may be appropriate, including a Mental Hygiene Warrant under Mental Hygiene Law (MHL) § 9.43, or an Order of Protection under Family Court Act (FCA) Article 8. The two primary red flags are harm to self and harm to others.

Harm to self may be direct or inadvertent. It includes self-injurious acts or threats thereof, which are an immediate red flag. More subtle red flags are behaviors that indirectly result in self-harm. These may include abandoning one’s home to live on the streets; wandering at night in unfamiliar areas; posting content on social media that may elicit dangerous contact; neglecting hygiene, medical needs, or nutrition; or failing to maintain a habitable living environment.

Red flags of harm to others may include physical violence, intimidation, threats, hostility, and aggression, which, at times, may require police intervention. Harm to others can also be in the form of harassing behavior, which can be repeated or incessant outreach via phone calls, emails, text messages, or social media. When these red flags are coupled with observed psychiatric symptoms, legal remedies should be considered.

A Mental Hygiene Warrant may be sought for an individual who refuses mental health treatment and poses a danger to themselves or others via a civil proceeding governed by MHL § 9.43. At the hearing, the individual is entitled to Mental Hygiene Legal Service (MHLS) representation. If the application is granted, the individual will be remanded to a psychiatric emergency department for an evaluation and observation, not to exceed an initial period of 72 hours. A clinical determination will be made as to whether a psychiatric admission is necessary. This is often an effective tool to treat and stabilize the individual. It can also reveal the individual’s diagnosis and prognosis and aid in the formulation of a structured outpatient plan.

If an individual’s behavior rises to the level of disorderly conduct, harassment, stalking, menacing, reckless endangerment, or other acts between members of the same family or household, an Order of Protection may be appropriate. Orders of Protection may be obtained through the Family Court and can be effective tools to stop verbal or physical abuse, end disruptive behavior, and protect the family. Forms of protection available under the FCA include a directive to “stay away” from a person, house, school, or place of business, to “refrain from” communication or from committing a family offense, or to leave the home via an “exclusion order” which may include removal by law enforcement, if necessary.

While the preceding legal remedies are available to respond to mental health red flags, in emergencies where dangerous behavior poses an immediate risk to self or others, 911 services and/or a mobile crisis team should be contacted.