January 28, 2010
Medical in Nature, More than Legal

I write today about a case that I recently concluded. It baffled me, baffled my client, baffled my client’s family, baffled my client’s doctors, and needlessly caused a lot of heartache. It was one of those situations that I run into all too often and that raises eyebrows when I talk about them later.

I feel that when we use the criminal justice system to try to solve problems that are more medical in nature than they are legal, we frequently squander opportunities to do something positive for our community and for the people who are affected. I believe that our health care system and insurance companies are let off the hook when, instead of addressing some very hard and intractable issues with a creative and compassionate approach, we continue to revert to punishment as a way of solving the problem of behavior that appears criminal but originates from some other source.

My client was charged with simple assault under the domestic violence act. The police officer who was called to the scene felt he had to charge my client with a criminal act because there was a valid complaint by his wife: she had been punched in the eye and her injury was evident. Clearly, we have a domestic violence act to try to limit violence within the home and the need to deter that is great. However, in this case the officer had been informed of two key points: the perpetrator–her husband of 57 years–had never been violent in the past and he had been diagnosed with Alzheimer’s disease and was more agitated recently.

My client and his wife had been solid citizens in the town where this incident occurred for many, many years, but their standing in the community could not mitigate an ineluctable procedure. A no contact order was entered; in this case, that meant that the wife had to move out of the home, despite her role as the primary caregiver and despite the fact that she was innocent of any wrongdoing. But the husband was in no condition to be moved. Her two adult children, both living out of town, had to step in to fill the breach.

I gathered all of the relevant medical records then went to court on the first listing, almost a month later, expecting that the instant the prosecutor became aware that the defendant was a man suffering from a disease that is known to produce violent outbursts rather than a criminal, that the matter would immediately be dismissed. But that is not what happened. The prosecutor, intent on protecting the community at large from domestic violence, refused to dismiss. He also refused to recommend that the no contact order be lifted despite the “victim” pleading with him to do so. In light of the prosecutor’s position, the judge refused to lift the no contact order and attempted to orchestrate this family’s life by requiring a contract showing that there was a full time caregiver in the home and requiring the treating physicians to certify that he was on medication and no longer a danger. Since there is no such animal, this documentation was not easy to produce. Meanwhile, the wife was out of her home for over two and a half months before I was finally able to have the no contact order lifted. It was another month before I was able to get the entire case dismissed and all of this required four humiliating court appearances.

The potential for other families to find themselves in similar situations is alarming. There is a study that finds that within the first year after diagnosis, 16 percent of Alzheimer’s patients will experience a violent outburst, and agitation occurs in up to 70 percent of all Alzheimer’s cases.

Other studies have linked various factors that play a role in aggression among Alzheimer’s patients, including depression, delusions, and hallucinations. Some of these studies have shown that simple solutions were the most likely to be effective, and many clinicians who deal with Alzheimer’s patients advocate for readily available beds and trained staff to deal with aggressive behavior. Facilities in this country specializing in caring for aggressive Alzheimer’s patients have been shown to be effective, but their cost limits their accessibility. Defusing these behaviors requires specialized training and a highly engaged staff, but it can often be achieved by keying into the needs that are not being met and meeting them, by applying their knowledge of the patient’s nature and background to be able to soothe them and to redirect their attention when they become agitated and aggressive.

Many clinicians understand that the acting out is largely due to the inability to effectively communicate pain, discomfort, or other feelings or emotions; it is similar to trying to determine a baby’s needs by deciphering his cries or behaviors. We would never dream of hauling a baby into court because we couldn’t understand why he wouldn’t stop screaming.

I was not able to understand why my client was being brought before a court to answer in a punitive situation for a behavior that he did not recall and was largely unable to control. I have no reason to believe that both the prosecutor and the judge involved were doing anything other than what they perceived to be right, but they have no idea of the pain and humiliation they caused this family. While I think the court can be a place to make appropriate referrals in this situation, it is clearly not the place to deal with it. We need to do better than this. We need to insist that both the medical and legal establishments seek better ways to reduce these kinds of social ills. We need to understand the brain better than we do and make resources more accessible. We need to encourage people to study these issues and pursue careers in the fields that can make a difference. Until we do, we will continue to fill our courts and jails with the mentally ill. — Ann Renaud

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