Hearing the Client’s Story: Identifying, Interviewing and Working Effectively with Clients with Mental Disabilities

Published in the newest American Bar Association book

Dr. Risa Grand, M.D., Forensic Psychiatrist and Expert Witness, Los Angeles County Mental Health Court

&

William J. Edwards, Deputy Public Defender, Los Angeles County Mental Health Court

Introduction

To provide effective assistance of counsel, it is essential that a defense attorney understand, identify, and seek an expert evaluation for a client who may have a mental disability.  Although lawyers are not doctors and therefore may not be able to specifically diagnose a mental condition, counsel should know when to make appropriate referrals to psychiatrists and psychologists, court liaisons, social workers, and other mental health professionals to assist in the evaluation of a client for competency, mitigation, and for the development of a mental defense, including a plea of not guilty by reason of insanity.    This chapter will highlight different categories of mental disabilities and suggest specialized approaches when interviewing such defendants.

Establishing Rapport

The first step in approaching an interview with any client — with or without a mental disability — is for the attorney to establish rapport. The attorney must convey empathy, as well as communicate the importance of mutual trust, respect and understanding. Once this connection with the client is made, the client is much more likely to reveal personal and relevant components of his or her life story. Part of establishing rapport is showing your client you are there for him or her.  The more information a client reveals to you about past experiences, the more you will be able to fully assist that client in his or her defense.  Eliciting personal information may help you understand why the defendant was detained, his or her background, arrest history, and whether or not he or she understands court proceedings.

In addition to asking about the facts regarding the instant offense and past experience with criminal court, it is just as important to understand your client’s personal background.  For example, in some cultures, it is believed that one can see and communicate with the dead.  A young woman from the Philippines told one of the authors that she spoke to her dead aunt throughout her childhood.  This was not seen as a delusion or auditory hallucination, but rather, a culturally congruent manifestation of dealing with a death in the family.

It is important to determine exposure to physical, emotional and sexual abuse as well as the nature of the client’s relationship with his or her parents. It helps to know your client’s educational background including difficulties with learning and behavior, and his or her occupational history. Determining all of these aspects of a client’s history lead up to having him or her feel comfortable revealing personal information. Establishing rapport with your client is a step-by-step process.

At the beginning of the interview, avoid emotionally driven or possibly difficult subjects. Ask about birthplace or early childhood experiences. Asking something as simple as “who took care of you when you were a young child?” may reveal past experiences of strong parental involvement and bonding, or on the other hand, abuse and neglect. Further, this one question may reveal that the client experienced a death of a parent at a young age, or removal from his or her family of origin by government social workers.

Past physical, sexual, and emotional abuse is important to ask about and recognize in your client; it may have been due to mental illness or substance abuse in one or both of their parents. Mental illness has a heritable aspect, meaning it “runs in” families. The idiom “the apple doesn’t fall from the tree” is applicable in terms of looking at mental illness; people with mental illness often and usually have family members with similar illnesses.

Substance abuse also runs in families. When a client has a family member with substance abuse issues, that client has a higher risk of struggling with this type of addiction. It is thought that both genetic and environmental factors contribute to this increased risk.

Once your initial rapport is established and you ask very simple questions which ideally are not too emotionally charged, it is important to watch your client’s reaction when he or she answers those questions.  For example, if he or she avoids eye contact and appears to be withdrawn or sad, he or she may be depressed. You may want to speak more softly and slowly as well as be patient. Depressed people feel discouraged and cannot imagine life getting better. You may need to sit more closely to your client, or use non-verbal cues such as head nodding. Expect an interview with a depressed client to take longer. Depressed people often process information more slowly or may feel that their case is hopeless. Monitor your own demeanor and behavior, maintain good eye contact and speak with empathic statements such as “I see…” or “I understand.” You want the client to believe you care.

On the other hand, if your client appears to be paranoid, it would be ideal to change your approach. Do not use excessive eye contact. Empathic statements on your part may be misconstrued. It is advisable to face and position your body at an angle away from the client so he or she does not feel you are forcing the interaction. This is an example of non-verbal behavior that will hopefully be perceived as less intrusive.

RED FLAGS TO IDENTIFY CLIENTS WITH A MENTAL DISABILY

Mental disabilities include mental illness such as mood and psychotic disorders, substance abuse issues, and developmental disabilities.  Developmental disabilities include fetal alcohol spectrum disorders (FASD), autism spectrum disorders, intellectual disability (formerly known as mental retardation), language and learning disorders, vision and hearing impairment, and cerebral palsy and other neurological conditions.

There are several ways to identify a client exhibiting signs of mental illness. This includes determining a person’s mental status means assessing the client’s statements,  relationship with reality, the circumstances of arrest, the tone and nature of conversation, as well as other behavioral clues such as attention span, speech and language disorders or physical manifestations such as self-multilation or insomnia.

For example, during an interview a client might make paranoid statements or show signs of irrational fears – such as a fear of leaving (or even refusing to leave) his or her jail cell. This is one of many red flags that can help identify a client with mental illness.

Reality confusion, such as a client experiencing hallucinations, seeing or hearing things or exhibiting signs of impaired reality testing, is also a potential red flag. These clients may have delusions about the attorney. For example, the client may feel the attorney is conspiring to work against him or her, or the client may believe the police are after him or her for no good reason.

Assessing the nature of your client’s conversational abilities can also help discern or identify the manifestation of mental illness. Among the clues to look for are the client’s ability to follow your train of thought and whether your client makes eye contact. These can be subtle but important signs of mental illness.

The attorney should also consider the nature of the circumstances that led to the client’s arrest. The arrest could be the result of a mental illness such as delusional beliefs. A good example of this is the arrest of a client for trespassing when the client believes that he or she owns a home when in fact he or she does not.

The importance of behavioral clues can’t be overlooked.  Any unusual facial expressions, vacant stares, tics or tremors may be important signs. A history of seizure disorders may a red flag as well. In the interview, it is important to determine if the client is slow or has a history of special educational needs. The nature of the client’s level of agitation is also important to assess.

Other signs may be manifested in speech and language disorders. The pattern and nature of a client’s speech needs to be assessed. A client who talks too fast or speaks tangentially may be exhibiting signs of mental illness.

It is also important to understand the client’s physical and medical history. Memory and attention problems such as Attention Deficit Hyperactivity Disorder (ADHD), could be the result of a history of brain injury, strokes, an electrocution, or prenatal alcohol/drug exposure.  It is also important to recognize signs of selective inattention.  The attorney should be aware of whether the client was found to be incompetent in the past, and whether or not the client has been subject to a conservatorship or guardianship.  Physical manifestations, such as incidents of self-multination, insomnia, hearing problems, dizziness or complaints of blurry vision should also be considered when interviewing a client.

Prenatal alcohol exposure is considered one of leading causes of developmental disabilities. The attorney should also be aware of client’s with developmental disabilities including those with prenatal alcohol exposure also called Fetal Alcohol Spectrum Disorders. Many of these clients with FASD often have IQ’s that are above 70 and they often do not qualify for services for people with developmental disabilities.  However, despite the higher IQ they often have very low adaptive behavior skills which is a hallmark of this disability.

Red flags for attorneys to look for to identify clients with FASD are as follows:

1. Birth defects, heart murmurs, feeding difficulties and developmental delay.
2. Sleeping difficulties, seizures, tremors, eye problems and orthopedic problems.
3. ADHD, hyperactivity, high risk of abuse, multiple foster care placements and history of child protection placement.
4. Social difficulties, impulse control problems, poor judgement and special education placement, truancy, and high risk behavior.

If it is suspected that the client has FASD they should obtain a neuropsychological work-up and have a medical doctor complete the FASD evaluation.

DEVELOPING A SOCIAL HISTORY-GATHERING THE IMPORTANT RECORDS

Gathering records related to the client’s medical history is an important step in the assessment process. It is vital to track down jail and prison records that detail treatment and medications; substance abuse histories; neuropsychological, neurological and psychological records; prior hospitalization records; and any other information where the client had documented interaction with a record-keeping agency such as school or the military.

Among the most important documents are records from around the time of onset of mental illness. Often clients are diagnosed before they encounter the criminal justice system. These records will be important to show when mental illness was first diagnosed and could also help refute charges of malingering.  For example, in one case worked on by the authors, the client was diagnosed for the first time while he served in the Air Force. The client suffered from schizophrenia. He believed the government was following him. It was important to obtain these records to show when his mental illness was first diagnosed.

Jail and prison treatment records are critical documents as well.  It is important to get all in custody treatment and psychiatric records. When examining these records, determine if your client is taking medication and what type of medication that might be. Considerations include the client’s history with medicine – some clients may not comply with treatment programs and refuse their medication.

Ask yourself, “has the client returned from the state hospital as competent and, is he or she taking prescribed medication?”  Hospitalization records while in custody are also important.  Counsel should determine if the client was placed in the hospital section of the jail while being in custody. It is important to know if the client has been placed on suicide watch.

Other considerations include whether the client is eating, the condition of the client’s jail cell and whether or not the client refuses to come to court. In instances where the client refuses to leave his or her cell, it may be necessary to obtain a court order allowing you to go to the client’s cell in order to meet.

If a client has been incarcerated and paroled, outpatient records will contain valuable information.

Another avenue for developing an understanding of the client’s needs may be found in outpatient records. Counsel should determine if the client is currently receiving mental health treatment and obtain all records that relate to substance abuse by the client.

Any evidence of brain injury from accident or evidence of pre-natal or peri-natal brain injury should be uncovered. It is important to determine if the client was ever electrocuted or suffered a stroke. Dementia or Traumatic Brain Injury (TBI) could also play a role in the client’s mental illness.  Counsel should seek any prior hospitalization records and determine whether the client was involuntarily committed, found incompetent or treated at a state hospital. It is important to note that many clients are poor historians and may not remember if they were ever  hospitalized for psychiatric reasons. This information may be obtained from family or via the client’s criminal history. These records will include an actual diagnosis at the time of the admission and all discharge records will include treatment recommendations.

Arrest records are also valuable diagnostic tools.  Police reports may describe the strange behavior of your client at the time of the arrest. The reports may include information if your client was hospitalized before he or she was taken to jail. Statements by family members or the victim may also describe the client’s mental disability.

Other institutional records may contain important information. Among those are school records describing emotional disturbance or special educational needs, SSI or SSDI reports, which may show whether the client has a mental illness. Military records can show if the client discharged from service due to mental illness or medical issues. These same records can indicate any history of hospitalization for PTSD or other mental health issues while serving in the military. Veterans records will have documentation from hospitals and detail inpatient and outpatient treatments the client has received.

Records from foster care or the State Department of Children and Family Services may include details of psychiatric treatment or evidence of mental health issues from the client’s childhood.

ISSUES TO BE CONSIDERED BY THE ATTORNEY REGARDING POSSIBILITY OF MENTAL DISABILITY

There are several reasons to seek a mental health evaluation. Among them are a client’s competency to stand trial, determination of the viability of a plea of not guilty by reason of insanity, and the use of mental disability issues in sentence mitigation.

The client’s history of present mental illness plays a role in the evaluation. Counsel should consider the client’s symptoms and the severity of those symptoms. Factors the client believes precipitated, aggravate or otherwise impact the illness are important to take into consideration. Additionally, counsel should determine whether or not the client was receiving treatment prior to the current evaluation.

Additionally, counsel’s evaluation should consider the client’s history of alcohol or substance abuse and determine if the substance use been associated with psychiatric symptoms.  Symptoms of withdrawal and tolerance should also be noted.

Issues that occur during the developmental years can indicate an increased risk for psychiatric conditions. It will be important to determine if the client lost a parent at an early age and whether the client experienced any anxiety issues during childhood or adolescence. Eating disorders during childhood should also be considered. Find out if the client had problems making or keeping friends, whether there were disciplinary problems in school or excessive absences due to medical problems. Delays in reading and writing and ability to do math should be considered as should any placement in special education classes.

The client’s psychiatric and legal history needs to be considered. Determine the chronology of past episodes of mental illness, regardless of whether those episodes were diagnosed or treated. Investigate whether the client has a history of psychiatric hospitalizations and whether the client has made suicide attempts or engaged in aggressive behavior. Counsel should find out if past or current legal involvement poses a significant social stressors. Then, determine if past or current legal problems relate to aggressive behaviors or substance abuse and intoxication.

Counsel should consider whether the client’s thought processes are coherent, the characteristics of the client’s speech, as well as any abnormalities of the client’s thought content such as delusions, over-valued ideas, obsessions, compulsion  and impulse control problems.

Additionally, counsel should consider the client’s level of cognitive functioning including orientation, attention span, concentration, short and long term memory, dementia, evidence of traumatic brain injury, abstract reasoning ability, language usage, and executive functioning.

When examining the client’s level of psychomotor activity (motor action directly proceeding from mental activity), look for any unusual postures or movements. Also, look at the client’s face and attempt to discern any involuntary movements of his or her facial muscles such as tics or spasms. As for speech, look at the volume, rate, and fluency of the communication.

The client’s appearance and behavior are also important. Counsel should take an inventory of body habits as well as the dress and grooming.  Observe whether the client is wearing a suicide gown or is naked in his or her cell. Observe the client’s hygiene and evaluate whether or not the client has tattoos. Importantly, determine whether or not the client will make eye contact.

Examine the client’s thought processes and flow of ideas. Mental illness may manifest itself with vagueness, tangential conversation, as well as loose or idiosyncratic or self-contradictory statements. Consider the content of thought. There may be evidence of compulsions, delusions, obsessions and feelings of grandeur or a history of infidelity. Exhibitions of guilt, worthlessness and suicidal feelings should also be considered. Other insights into mental illness may be gained through observation of perceptual thought disturbances, hallucinations and a history of making poor judgments.  For example, a homeless person may lack an ability to form a plan for self-care.

Maintaining Boundaries

Although it is important to do all you can for your client, remember to maintain appropriate boundaries. Focus on the client’s best interest, not your own. During the early part of the interview you want to keep the client talking with as little intrusion as possible. You can facilitate communication both non-verbally as well as verbally.

Non-verbal encouragement might include eye contact or a smile or a nod to acknowledge appropriate responses. Verbal encouragement can be as simple as saying “yes” to an appropriate response.

Open-ended questions allow for your client to speak about what is important and relevant to him or her.  Examples are “Please explain what you mean” or “Tell me more about that.” These are good introductory questions.

Conclusion

Being able to notice signs of mental disability and help your client is an essential for every criminal defense lawyer.  The recidivism rates among people with mental disabilities is high, in part because the courts – and defense lawyers – fail to recognize that a mental disability is a factor which contributes to continued criminal behavior.