‘No Shortage of Work’

Carolyn Wolf, director of the mental health law practice at Abrams Fensterman in Lake Success, is often asked to explain her job. When it comes to mental illness, why should a lawyer be called in?

As soon as she ticks off the reasons, they get it: involuntary commitment, guardianship, mental health warrants.

As for that last one? “That’s where somebody needs to go to a psychiatric emergency room to be evaluated,” Wolf says. “And if they don’t go voluntarily, there is a mechanism in New York under the mental hygiene law to go before a judge, present our case, and hopefully the judge will agree that we’ve met the legal standard, and we’ll send the person to an emergency room to be evaluated.”

Wolf, who holds master’s degrees in business and health services administration, began her career as a hospital risk manager, spending a fair amount of time with the four psychiatric units at Elmhurst Hospital. The role gave her so much exposure to the law that she decided to do it officially. As soon as she got her J.D. in 1987, hospital contacts asked her to cover psychiatric hearings. There, she encountered families who needed help navigating the system. She’d found her calling.

“I call us lawyers plus,” she says of her practice, “because we all are so immersed in the clinical issues that go with mental health, and we collaborate and coordinate with clinicians almost daily.”

She and her colleagues are at the forefront of a growing practice niche in a society that tends to push mental health issues to the side.

“My clients,” says Jamie Rosen, chair of the mental health law group at Meister Seelig & Fein, “are generally the family members of an individual who suffers from a serious mental illness, alcohol use disorder, substance use disorder, or all of the above. I’m advising these families through an extremely difficult, emotional time, often during a crisis. They’re lost in a complicated system. They’re frustrated and they’re exhausted.”

Her goal is to educate family members on how the legal system intersects with the clinical system. “I’m advising clients on their loved ones’ rights—whether it’s related to a psychiatric hospitalization or guardianship, or signing advance directives, housing issues, criminal defense matters, and family court—and I help them understand their own rights and legal options,” Rosen says. “And then I help them advocate.”

The biggest challenge, says Wolf, is that a person with mental health issues often doesn’t have insight into their illness. “How do we navigate through an individual’s resistance to wanting to get treatment?”

HIPAA laws can present another challenge. “In the hospital setting,” Rosen explains, “adult patients have the right to say, ‘Don’t share protected health information with my parents or my siblings or whoever.’”

Both attorneys feel that patient rights protections are currently overly constricting. “We’ve come a long way since we institutionalized individuals with serious mental illness for prolonged periods of time without real checks and balances,” Rosen says. “The pendulum has swung so far in the opposite direction.”

“Families who are acting in good faith—and you could have criteria to determine that—should be given more rights than they have currently,” Wolf says, “and more ability to assist and intervene, in order to allow loved ones to work with the treatment team in getting the individual the help that they need.”

They’ve been able to find some creative workarounds. “We give [family members] a script: ‘I know you can’t confirm or deny that you know our son, daughter, sister, brother, is in the hospital or is in your program, but I need to give you the history and the background,’” Wolf says. “There’s nothing in the law that says [hospital staff] can’t listen.” 

The isolation of the COVID pandemic didn’t help mental health matters. Neither, say the attorneys, did marijuana legalization. But despite such difficulties, they’ve had successes. “I’ve seen clients go on, after a major intervention by their family, and rebuild their life: get a job, start a family, be productive members of society,” Rosen says. “That’s the real joy I get from the work that I do—when I get a call, an email or a note from a family months, weeks, years later that things are going well.”

“It’s people’s lives,” says Wolf. “It’s very rewarding, but it’s challenging at the same time.”

The practice area also tends to intersect with family law, trust and estates, even real estate when co-ops and landlords have tenants with a mental illness. “This area is ripe for training and education,” says Rosen. “Sadly, there’s no shortage of work.”