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IMPORTANT & BREAKING: FAMILIES IN MENTAL HEALTH CRISIS ACT INTRODUCED

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Project Proposal: Uniform Mental Health Commitment Act

Author: Mary Ann Bernard
(B.A., Stanford University, J.D. University of Chicago)
Former counsel to mental hospitals in Minnesota and member of NAMI California

Supporters:
Dr. E. Fuller Torrey, author of The Insanity Offense
Dr. Darold Treffort, former president of the Wisconsin medical, psychiatric and psychiatric administrator societies and originator of expanded commitment criteria in that state
Professors Jonathan Simon and Philip Frickey Stephen Rosenbaum, Lecturer University of California School of Law

DESCRIPTION OF PROJECT:

There are four to six million people in the United States with serious psychiatric disorders (schizophrenia, bipolar disorder with psychosis, and depressive disorder with psychosis).1 The majority of these individuals can live safely, though not necessarily well, in society.2 The proposed project deals with a subset of these individuals: those who, by virtue of their mental illnesses, become a danger to themselves or others. These individuals typically need short-term treatment in a highly staffed, locked setting for their own protection and/or the protection of the public. Of necessity, every state has some statutory scheme for dealing with them, typically termed a commitment act. Some were hastily and poorly drafted. Virtually all are out of date.

A uniform civil commitment act, drafted consistently with contemporary legal and medical standards, could enhance the quality of life for many mentally ill people and their families. It could also save lives, not only of the mentally ill but of police and innocent citizens who become targets for psychosis-driven violence.

Consideration should also be given to dealing separately with a subset of the subset: the 1% or approximately 40,000 individuals who have committed extremely violent acts, and whose brain disorders are so profound that it will never be safe to release them without very careful controls and monitoring.3 Many but not all of these individuals come to civil treatment settings from the criminal system, where they were found incompetent to stand trial, not guilty by reason of insanity, or simply reached the end of a criminal sentence. However, it is not necessary to re-write state and local criminal processes to determine how this subset should be treated as a civil matter.

1. NEED FOR AND BENEFITS OF UNIFORMITY IN THIS SUBJECT AREA:

1. A Uniform Commitment Act would fill an emergent need and modernize an antiquated concept.

By modernizing antiquated state commitment laws, NCCUSL has a rare opportunity to improve and save lives of mentally ill persons as well as their loved ones, who are the most frequent victims of violence and homicide when the dangerous mentally ill are left untreated.4

Present state commitment laws had their genesis in the last century, when harmless mentally ill people were locked up, sometimes for life, in large institutions. Many times, their incarceration was considered voluntary. 5 At that time, anti-psychotic medications had horrendous side effects, electroshock therapy was given without anesthesia, and many individuals in state institutions received little or no treatment. After O'Connor v Donaldson, 422 U.S. 563 (1975), which held that states, Awithout more, could not constitutionally confine non-dangerous individuals who were capable of surviving in freedom, states quickly re--wrote their commitment statutes to incorporate strict due process rights for the mentally ill.

The universe has changed drastically, but the law has not caught up. In fact, the commitment laws drafted thirty years ago have brought us full circle. The seriously mentally ill are still being locked up in large institutions, without treatment. Now, however, those institutions are jails and prisons. This means that the dangerous mentally ill are committing felonies that could have been prevented, had they been treated early and adequately. In prison, they are frequently victimized by other inmates, and receive little or no care.6 How did this happen? The simplest answer is that the existing laws typically made it far harder to civilly commit and treat people than was constitutionally necessary or medically appropriate. Other trends conspired to make matters worse. With the advent of managed care, the new problem is not indefinite commitment of non-dangerous people, but the opposite: in many states, mentally ill persons are forced out of hospital settings far too quickly. Many have not been adequately treated. Some have not been treated at all.

Deinstitutionalization has also allowed the mentally ill to self-medicate with street drugs, which override psychiatric medications, cause psychosis in the predisposed, and cause the mentally ill to be drastically more violent.7 According to the National Alliance for the Mentally Ill ( NAMI ), 29% of individuals with a mental illness diagnosis also abuse drugs.8 This complicates their illnesses, and frequently calls for treatment in a locked setting. At the same time, there have been positive developments. Psychiatric treatments have improved dramatically, and continue to do so. There have been several new generations of psychiatric drugs that are increasingly efficacious, and have far fewer side effects. More innovations are on the horizon. In addition to new psychiatric drugs, researchers are evaluating treatments such as vagus nerve stimulation and rTMS, an electromagnetic variant of electroschock therapy that is painless and avoids the major side effect of the older treatment (short term amnesia). Genetic research also promises better, more targeted mental health treatments.

Another important development is the recent advent of long-term injectable medications. Even when receiving optimal treatment, the seriously mentally ill tend to forget, lose or misdose themselves on their daily pills. It should now be possible to create a tickler system to treat individuals who miss injections. Instead of waiting for these individuals to become psychotic and dangerous again so they can be involuntarily hospitalized, they could simply be transported to the local mental health clinic to receive their shots.

2. A uniform law would produce significant cost and public safety benefits.

The most basic reason for a uniform law is that seriously mentally ill individuals can and do cross state lines, as is their constitutional right. Sometimes they do so of their own volition; sometimes they are actually dumped in new jurisdictions by relatives or even by law enforcement. Due to state privacy laws, information on these individuals is not always available to the receiving state.9

Disastrous consequences can result: for example, a mentally ill woman who did not meet commitment criteria in Wisconsin fled to Illinois, where she was unknown. Six days later, she delivered arsenic-laced juice and cookies to acquaintances, set fire to a school and a daycare center, and killed and wounded several children in a second-grade classroom, before turning the gun on herself.10

A schizophrenic serial killer wandered between a number of states before finally being caught.11 There are countless other stories along these lines. While the mentally ill do not necessarily commit crimes when they move between states, their hospital discharge orders become meaningless. If their mental health deteriorates, they will receive treatment only if someone notices themBprovided they do not end up dead or in jail first. Much violence and human misery could be avoided if commitment and discharge orders were saved on a national database available to treatment and law enforcement personnel, standard in form, and entitled to full faith and credit between the states. Conceivably, the discharge order could be locally enforced, subject to reopening only if treatment personnel or the patient requests it. These orders should tell individuals in the receiving state whether the patient has a mental health advance directive, and some basic facts about their illness and needs. If the mentally ill patient had a guardian in State No. 1, it would only be necessary to file a copy of the Order in State No. 2, so the local court could appoint a new guardian. Commitment and discharge orders would also guide treatment personnel to further information, which the patient may be in no condition to convey.

A uniform act would also minimize the mistakes and administrative costs of re-training treatment personnel, who have to learn an entirely new set of rules every time they move. In California, every county has been given authority to enforce the state commitment act differently, and does so. There are 59 local bureaucracies creating their own rules, confusing law enforcement and treatment personnel alike. Patients get lost in the confusion, and undoubtedly come to harm upon occasion. Resources in this area are scarce, and would be far better spent on patient care.

2. SUMMARY AND ANALYSIS OF EXISTING STATE LAW AND TRENDS CONCERNING THIS SUBJECT

a) General provisions in commitment acts

The basic issues dealt with in American civil commitment laws are:

  • 1)how to define the degree of danger necessary to justify the involuntary detention of a mentally ill person;
  • 2)what quantum of proof to require;
  • 3)what procedural safeguards are needed to protect against indefinite detention; 4)how to determine whether the patient is competent to make treatment decisions, and who will make them for the patient if s/he is not;
  • 4)under what special circumstances can staff force highly intrusive treatments, such as electro-shock therapy, on these individuals;
  • 5) how mentally stable they should be before they are released;
  • 6) what conditions should be placed in hospital discharge orders, to help keep patients from deteriorating and needing to be re-hospitalized (or jailed, or buried, the other frequent consequences of these serious illnesses); and
  • 7) whether the civil commitment act should contain separate and stricter requirements for the 1% of the seriously mentally ill with a history of extreme violence.

While I am not familiar with the commitment laws in all 50 states, the following is likely a reasonable summary of existing law and trends on the above-numbered issues:

1)Though O'Connor v Donaldson expressly reserved the question whether the mentally ill could be involuntarily detained simply because they needed treatment, 422 U.S. at 573, n.10, most or all state commitment acts require dangerousness to justify involuntary detention for treatment. There are usually three criteria: danger to self, danger to others, and grave disability such that the individual cannot take care of personal needs for food and shelter.

2)The standard of proof for dangerousness is often high, and problems of proof are sometimes intractable. Some states require clear and convincing evidence to justify an emergency intervention, more than is needed for a criminal arrest. Some require an overt act, or danger so imminent that it is irrelevant that a patient may become dangerous in half an hour, if he is not dangerous now. Most allow for commitment of patients so gravely disabled that s/he cannot see to their own food or shelter, but even this is sometimes narrowly construed. mentally ill street person who was eating his own feces was once rejected for commitment because this practice does not always endanger life and limb.12

However, there has been a recent trend in favor of relaxing the definition of dangerous, see generally, "Civil Commitment Changes Only as Good as Funding," (Psychiatric News June 6, 2008) and discussion below at pp. 15-17.

3)States generally permit police and other defined individuals to place a 72 hour hold order on mentally ill persons who are a danger to themselves or others, the timeline for criminal preliminary hearings that became accepted immediately after Gerstein v Pugh, 420 U.S. 103 (1975).13 The spacing of court commitment and other hearings after that first 72 hours is highly variable. Most or all states allow the mentally ill to file habeus petitions. Most or all assign advocates or attorneys to help patients through the commitment process.

4)Most or all states have procedures for involuntarily medicating the dangerous mentally ill who are shown to be mentally incompetent to make their own treatment decisions. Incompetence is common because of a common delusion called anosognosia: the seriously mentally ill simply do not recognize that they are sick.14 In some instances, state procedures for involuntary medication are so cumbersome that they delay and/or prevent appropriate treatment.

5) Electro-shock therapy is typically the subject of even more cumbersome procedural requirements, which have made it an under-utilized treatment modality.15 Care should be taken to avoid treating vagus nerve stimulation and rTMS the same way. Though they bear a resemblance to their shocking predecessor, these treatments are far less intrusive.

6) Some statutes require the mentally ill to be discharged the instant they are no longer dangerous, whether or not they are mentally stable. Others allow treatment to achieve medical and mental stability.

Typically, the mentally ill are discharged from hospitals the way everyone else is: they get a sheet of paper, telling them what to do to stay well. Some 50% of them will not follow their discharge plans.16 The financial and human cost of this practice is incalculable. The patients who do not follow medical advice will deteriorate, and may become dangerous or suicidal, or commit crimes.

Some states and many other countries use provisional discharge or conditional discharge Bessentially, a form of civil parole that allows the patient early release in exchange for a promise to comply with treatment and placement orders, with procedures for returning the patient to treatment if these promises are not kept. A study in New Hampshire, where conditional release has been widely used, found that the program led to markedly increased medication compliance, decreased rehospitalization, and decreased substance abuse, as well as a reduction in violent episodes by half. 17 NCCUSL would do an enormous public service by developing a standard discharge order with a variety of optional provisions designed to help mentally ill individuals stay in compliance with treatment recommendations. The committing court could choose between options according to the facts of the case and available local resources.

7) Many states have special commitment procedures for highly dangerous persons with some form of mental abnormality. There is a long history of litigation around these provisions, which meet federal constitutional norms if carefully drafted, see, e.g., Kansas v Hendricks, 521 U.S. 346 (1997).

b)How commitment works in the United States

To illustrate how the commitment process actually works (or doesn't), I will contrast two statutes with which I am familiar:

1)Commitment procedures in California

The California statute, known as the Lanterman-Petris-Short Act or LPS was drafted with the express purpose of making it as difficult as possible to commit mentally ill persons.18 It is an extremely lengthy, complex statute, which has been highly successful in achieving this purpose.

A) California commitment standards

Commitment in California is limited to those mentally ill individuals who are a danger to themselves or others, or gravely disabled, ie, unable to provide for his or her basic personal needs for food, clothing or shelter. 19

B) California immunities

The first barriers to commitment in LPS are its immunity provisions: treatment personnel are immune from civil and criminal liability if they release mentally ill persons,20 but civilly liable for damages if they knowingly commit non-dangerous persons.21 This is exactly the opposite of many state immunity provisions, which give treatment personnel some degree of protection because assessment of dangerousness is so notoriously difficult.22 C) California standards for emergency hold orders

The second barrier to commitment in LPS is the hold order provisions: few people, other than the police, are legally authorized to place a 72 hour hold on a dangerous mentally ill patient.23 This forces the police to assess the dangerousness of individuals they have never met, a task that is difficult even for trained health professionals. Psychotic, paranoid individuals are often well-informed about how to avoid commitment, and are typically crafty enough to hold their act together for the few minutes it takes for a police interview. NAMI now trains California families to keep careful written records of past patient history to help them persuade police that their loved ones are dangerous enough to be committable.24 Family members who do not have NAMI training are often unsuccessful with the police which leaves them alone with a psychotic, stressed individual who is now very angry at them for involving law enforcement.

If commitment on dangerousness grounds is unsuccessful, California family members are routinely advised to throw their loved one out of the house and refuse all help, so s/he can become gravely disabled and treatable under LPS.

In California, police do not transport the mentally ill to psychiatric facilities. They take them to local emergency rooms. There, the process starts over. Emergency room staff are legally required to re-assess the proposed patient for dangerousness.25 Again, they typically do not know the individual, and are immune for a bad guess only if they refuse to admit the patient. D) California initial commitment procedures

If a patient is admitted, s/he is entitled to a certification review hearing before a judicial officer, with representation by an advocate, within four days.26 While the patient will be offered medication during this period, s/he has the right to refuse it. If there is not probable cause to believe the patient is dangerous after four days, s/he will be discharged, regardless of whether s/he has received any medication or treatment.27 Because psychotic individuals may not appear dangerous when they are in a controlled and quiet treatment setting, this often results in premature discharge of individuals who will again become dangerous, once they are released to the chaos of the real world. E) California standards for payment and release

Premature discharges also occur in California because of pressure from private insurers and/or Medicaid, which refuse to pay for hospitalization when patients are no longer dangerous, presumably because their payment criteria conform to state law. Sometimes patients are thrown on the street without even a discharge plan, because of these financial pressures.28

Patients who are not released by the certification review hearing are allowed another 14 days' treatment, as long as they remain dangerous.29 It is very difficult to hold patients after 14 days, unless the patient fits criteria for conservatorships, and treatment personnel choose to ask for one.30

F) California procedures for medication decisions

Unfortunately, the process of finding and stabilizing a person on the right medication may take longer than 14 days, partly because LPS makes involuntary medication difficult. Except in an emergency, California patients who refuse antipsychotic medication are entitled to a separate court hearing on their mental capacity to make this decision, held (in theory) within 72 hours of the filing of a separate petition for such a hearing.31 The California statute contains no standards governing the determination of mental capacity for treatment decisions, inviting arbitrary results. Neither does it mention mental health advance directives, which are documents the mentally ill can create when they are competent, directing the course of their treatment when they are not.32 G)

California procedures for provisional/conditional discharge

California has no provision for provisional/conditional discharge from civil commitment that I could find, though the Penal Code creates special conditions for parolees who have been convicted of extremely violent crimes.33 H) California provisions for the highly dangerous There are no separate civil commitment procedures for the highly dangerous, as such, in California. Mentally ill persons who have been convicted of violent crimes are subject to special parole provisions, see n.33. However, though they may be highly dangerous, it appears that individuals found incompetent to stand trial on criminal charges involving death or serious violence are simply treated as gravely disabled by LPS, meaning that there are no special provisions governing their release. Cal. Welfare and Institutions Code Section 5008(h)(1)(B). I)Positive innovations in California California has achieved one important innovation: judicial personnel come into hospitals at 72 hour intervals to hold commitment and competency hearings. Unlike jails, psychiatric hospitals may be located at great distances from courthouses. In states where the 72 hour hearings are still done in courtrooms, it is likely that many patients are discharged prematurely, simply because beleaguered hospitals cannot spare staff for transportation and testimony.

2. Commitment Procedures in Minnesota The Minnesota Commitment Act, Minn. Stat 253B.01 et seq, contrasts with LPS in nearly every respect: A) Minnesota standards for commitment

The stated standard for emergency admission is danger of causing injury to self or others if not immediately detained, Minn. Stat. 253B.05 subd.1. Minnesota, however, also has standards that allow early intervention for people likely to become dangerous. This standard is broader than the California standard for gravely disabled persons.34

B) Minnesota immunity provisions While California only immunizes treatment personnel who refuse to commit the mentally ill, Minnesota does the opposite. People who assist in the commitment process in good faith, based on information thought to be reliable, are immune from civil and criminal liability, Minn. Stat 253B.23 subd. 4.

C) Minnesota emergency hold order procedures

In addition to the police, all doctors, psychologists and psychiatric nurses are authorized to place an emergency hold on mentally ill persons who are dangerous to themselves or others, Minn. Stat. 253B.02 subd. 7. The intention, presumably, was to give this power to trained people who may actually be familiar with the patient.35 These examiners are required to provide police with written statements of non-conclusory facts that include observation of the patient's symptoms and, where possible, medical history and other relevant information.36 The examiner's statement authorizes police or health officers to transport the patient, Minn. Stat 253B.05 Subd. 1(a). When police initiate hold orders, they must provide similar written statements. Minn. Stat. 253B.05 subd.2. Both police and mental health examiners must identify individuals who are in particular danger from the mentally ill person, to the extent practicable. Id.

While the receiving hospital37 can release the individual within the first 72 hours, they are not obligated to second-guess the examiner and may observe the patient for this period, if it seems warranted. A physician trained to diagnose the alleged disability must examine the proposed patient within 48 hours, Minn. Stat. 253B.06. These individuals are in a far better position to assess the dangerousness of a mentally ill patient over a 72 hour period than are police during a five minute interview.

D) Minnesota initial commitment procedures

If treatment personnel feel commitment is warranted, they must file a petition within 72 hours.38 The petition must address, among other things, whether the patient is competent to make medication decisions and whether s/he has an advanced health care directive.39 At the preliminary hearing the court can enforce the advanced health care directive or appoint a substitute decision-maker if the patient is not competent to consent to medications.40 This ensures that treatment begins as early as possible in the process. The commitment hearing must be held within fourteen days, in a courtroom that may be located in a treatment facility. Minn Stat. 253B.08. Court findings must address the less restrictive alternatives considered and rejected. Initial duration of commitment

E)Minnesota standards for payment and release In Minnesota, patients can remain committed until they are no longer in need of care or treatment, Minn Stat. 256B.16 subd.1. While this appears to invite indeterminate commitment, this was never the practice, in my experience. Patients were discharged as soon as they were medically and psychiatrically stable, and had somewhere safe to go. In the interim, they received programming designed to teach them basic life skills that would help them to remember their medications and avoid becoming human icicles in Minnesota winters. Often this did not help. As is common everywhere, many patients cycled back repeatedly, if they did not die or end up in jail first.

The Minnesota statutes deal with anticipated payment problems. There is a state insurance parity law for mental health services, see Minn. Stat. 62Q.47. Services have also been created subject to federal approval, a signal that the Minnesota Department of Human Services planned to seek appropriate amendments to the state Medicaid program (which is roughly 50% state, 50% federal money), see, e.g., Minn Stat. 256B.0947.

F) Minnesota procedures for medication decisions

Ordinarily, there will be an order enforcing an advance treatment directive or appointing a substitute decision-maker to make treatment decisions in the first 72 hours in Minnesota, see D), supra. Absent an emergency, if the patient refuses to comply with his/her advance directive or substitute decision-maker, a court order is required before medication can be administered involuntarily.41

G) Minnesota procedures for provisional/conditional discharge

41 Minn. Stat. 253B.092. Court involvement

The Minnesota statute allows for provisional discharge, with procedures for revocation similar to those used for criminal parole, see Minn. Stat. 253B.15. The revocation provisions, however, do not allow for early intervention.42 They do allow for voluntary re-admission, a provision that is now constitutionally problematic, see n.5. The court in the initial hearing may also order "release before commitment" for up to 90 days, with conditions that guarantee treatment. The release order may be revoked if the patient does not comply with a material condition of the order, or extended for up to twelve months if necessary to protect the patient or others. Minn. Stat. 253B.095.14

H) Minnesota provisions for the highly dangerous

Minnesota specifies separate treatment for the mentally ill and dangerous, a category that is broadlyBarguably too broadlyBdefined.43 In practice, this provision was reserved for the highly dangerous mentally ill, who exist in every state.44 Many but not all individuals committed under this provision had reached the end of determinate sentences, or were found incompetent to stand trial, or not guilty by reason of insanity in criminal proceedings. Many will never be released from highly secure treatment settings. If they are, tight provisions require a provisional discharge that provides a reasonable degree of protection to the public.45

NCCUSL should also consider provisions allowing civil and criminal authorities to swap patients, to the extent practicable and constitutionally permissible. Prison wardens would likely be happy to place their most vulnerable mentally ill inmates in civil treatment settings, if beds were available. (The release of such patients would of course remain subject to state criminal criteria.)

Conversely, civil treatment personnel are unhappy when they receive "character-disordered patients, the psychiatric term for a really bad person who is not mentally ill. These predatory individuals often victimize other patients in civil treatment settings. If housing the character-disordered in prisons is constitutionally prohibited absent a criminal conviction, a guilty plea should be a prerequisite to civil commitments of the mentally ill and dangerous that stem from plea agreements. This gives civil treatment personnel leverage over such patients' behavior.

I) Innovations in Minnesota Minnesota allows release hearings by telephone conference call, Minn. Stat. 253B.05 subd. 3(b), and many commitment-related court proceedings to be done in psychiatric hospitals using audio-visual equipment, see Order of the Supreme Court in No. C6-90-649 dated April 8, 1991. Minnesota should also be commended for its early intervention procedures. As with any other serious medical condition, the farther the symptoms of mental illness progress, the harder it is to treat. Conclusion: A plea for a broader standard for dangerousness.

The time has come to evolve a new standard for civil commitment that broadens the prevalent definitions of dangerousness. Relatives of mentally ill people should not have to wait for them to attempt suicide or commit an assaultBor thrust them out into the streetBin order to get help for them. Acutely psychotic people with a documented recent history of extremely violent thoughts like Cho Seung-Hui, the Virginia Tech student who killed thirty-two people should not have to act on those thoughts before they are hospitalized.46 Standard such as the ones adopted in Wisconsin47 and Minnesota48 would almost assuredly meet federal constitutional norms.49 There are doubtless many other examples.

The expanded definitions of "dangerousness" should be optional in the uniform law, for two reasons:

  • 1) civil libertarians in some states will fight the entire statute, simply because of this provision (though the pendulum of history may have swung far enough at this point to quiet these voices)50; and
  • 2) some state constitutional standards are likely narrower than the federal standard. A uniform law remains valuable, even if not all states adopt a broader definition of Adangerousness.

3. IMPACT OF FEDERAL LAWS AND REGULATIONS ON THIS PROPOSED SUBJECT:

The project would not require changes in federal laws or regulations, though there are certainly federal laws that circumscribe states' authority. In addition to the U.S. Constitution, drafters will have to consider the impact of state and federal anti-discrimination statutes, such as the ADA, the federal patient's bill of rights set forth at 42 U.S.C. 9501, the new (and very helpful) federal parity law: the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act, and federal Medicaid funding provisions. Anticipated changes in federal mandates for health care insurance may also impact the drafting. (Consideration of funding sources is critical because changes in commitment laws have little effect if legislatures do not ensure the funding to pay for the changes. See Rich Daly, "Civil Commitment Changes Only as Good as Funding," (Psychiatric News June 6, 2008)).

4. IDENTITY OF ORGANIZATIONS OR PERSONS INTERESTED IN THIS SUBJECT AREA, AND ASSESSMENT OF SUPPORT/OPPOSITION:

There are many organizations interested in more effective mental health commitment laws. At one end of the political spectrum are police associations, who have been very active in pushing for assisted outpatient treatment in some states because they are tired of officers killing and being killed by psychotics. (One third to one-half of justifiable police homicides now involve mentally ill victims, see Torrey at p 133.)

At the opposite end of the spectrum are the Bazelon Center for Mental Health Law and Mental Health America (formerly the Mental Health Association), both of which oppose coercive measures generally and involuntary inpatient civil commitment " except in response to an emergency, and then only when based on a standard of imminent danger of significant physical harm to self or others and when there is no less restrictive alternative." See Bazelon Center for Mental Health Law Position Statement on Involuntary Commitment, and Mental Health America Position Statement 22, found on the web at www.bazelon.org/issues/commitment/positionstatement.html and /www.nmha.org/go/position-statements/p-36

In the middle, and a very important player, is the American Psychiatric Association, which drafted its own model statute in 1983, see "APA Model Law Governing Hospitalization of the Mentally Ill," 20 Harvard Journal of Legislation 275-396 (1983). This group is likely to welcome NCCUSL's efforts. So should NAMI, whose policy position supports early intervention and expanded notions of dangerousness for involuntary commitment, see pp. 42-43 of NAMI's public policy platform, found on the web at nami.org/Content/ContentGroups/Policy/Public_Policy_Platform_April_07_marked.pdf. Dr. Torrey's group, the Treatment Advocacy Center, has drafted a model assisted outpatient treatment statute, see treatmentadvocacycenter.org, and would also support a uniform commitment act.

5. AVAILABILITY OF EXISTING RESEARCH AND/OR FINANCIAL SUPPORT?

There is a plethora of psychiatric research concerning which patients become dangerous and how to persuade them to accept treatment. The Insanity Offense cites many studies that I have not mentioned. In addition to those sources, see psychiatryonline.org. In terms of financial support: the MacArthur Foundation has funded a number of studies, see nn.7 and 49. NAMI is chronically underfunded, but is a possibility. The other groups mentioned above may have available funds. Dr. Paul Appelbaum at Columbia, past president of the American Psychiatric Association, writes extensively in this area and is on the MacArthur Foundation board. He would be a valuable source of information

NOTES

1Dr. E. Fuller Torrey, The Insanity Offense: How America's Failure to Treat the Seriously Mentally Ill Endangers Its Citizens (W.W. Norton & Company, 2008) p. 5. The six million figure, which may include broader diagnoses, comes from Xavier Amador, I am Not Sick I Don't Need Help! (Vida Press 2007) p.5.

2See Steve Lopez, The Soloist ( Putnam & Sons 2008) for a real life example. Its subject is a former Julliard student, struck down by schizophrenia, who refuses medication, lives on the street, and has never been dangerous enough to be evaluated for involuntary treatment. Some states have adopted Aassisted outpatient treatment statutes to aid such individuals. (The one in California, called ALaura's Law, has not yet been implemented because no county chooses to budget for the expense.) These statutes are outside the scope of this proposal.

3Torrey at p.6

4Torrey at 148. Between 50 and 60 percent of the homicide victims of mentally ill persons are family members. Among the non-mentally ill, only 16 percent of homicide victims are family members.

5 Most states still have provisions favoring voluntary treatment over civil commitment, understandably. However, such provisions are problematic after Zinernon v Busch, 494 U.S. 113 (1990), which held that Avoluntary commitment of a patient who was not mentally competent to Avolunteer subjected the defendant to damages under 42 U.S.C. Section 1983. A uniform statute could provide appropriate guidelines for Avoluntary commitments.

6The criminalization of mental illness is now a well-documented phenomenon. In California, where civil commitment is very difficult, it is estimated that over 20% of the inmates in state prisons are mentally ill. (Some estimates run far higher than this.) Conservative estimates put the number of mentally ill individuals in prisons nationally at 7-10%. Torrey at 68, 128.

7 The MacArthur Violence Risk Assessment study found that the risk of serious violence for seriously mentally ill patients released from hospitals was close to double for substance abusers: 18% of non-substance abusers committed a violent act within one year of discharge, while 31% of substance abusers did so. Torrey at pp. 142, 210.

8See the NAMI website, nami.org, under Adual diagnosis.

9State privacy statutes vary. For example, in Minnesota, commitment records are presumptively public, but may be sealed by the committing court. Minn. Stat. 253B.23 subd. 9. In California, they are presumptively confidential. California Welfare and Institutions Code Section 5328 et seq. 10Torrey at p. 100.

11 Torrey at pp. 69-75

12 Torrey at p. 84.

13Note that this standard is now outmoded in criminal courts: County of Riverside v McLaughlin, 500 U.S. 44 (1991) adopted a 48 hour standard absent Aexceptional circumstances. A uniform commitment law should not, however, embrace this shorter timeline. To the contrary, as both County of Riverside and Gerstein note, due process is a flexible concept, and thus a careful case could be made for extending the typical 72 hour period. The practicalities of civil commitment are drastically different than those of the criminal process. The police do their homework before making an arrest for a crime. In contrast, the Aarrest of a mentally ill person is premised on an emergency. Police may not even know the individual's identity. Treatment personnel may need more than 72 hours to accumulate information the court will need to determine whether to extend the 72 hour hold, and what conditions to impose.

14 According to one study, 60% of schizophrenics, 50% of manic depressives and 25% of those with schizoaffective disorder do not recognize that they are ill. Neither do they recognize that they have symptoms, such as hallucinations and delusions, which are obvious to others. When asked why they were hospitalized, many cited conspiracies or maintained they were receiving medical check-ups. Amador at pp. 6-7. These individuals are typically very unhappy, but regard this as a normal state. Many will choose suicide to end their mental suffering, if they are not treated. Thus they "die with their rights on," to borrow a phrase from Dr. Treffort, a supporter of this proposed project.

15See, e.g., California Welfare and Institutions Code Section 5326.7 and Price v Sheppard, 239 N.W. 2d 905 (Minn. 1976).

16 Torrey at p. 117.

17 Torrey at p.189.

18For a history of LPS, see Torrey at pp. 28-40. .

19 Cal Welfare and Institutions Code 5150, 5008(h)(1)(A).

20 Cal. Welfare and Institions Code Section 5113, 5154(a).

21 Cal Welfare and Institutions Code 5154(a), 5259.1.

22 See, e.g., Minn. Stat. 253B.23 subd. 4, Ohio Rev. Code 5122.34.

23Cal. Welfare and Institutions Code Section 5150. Standard procedure in the hospital nearest my home has been to call the police into the intensive care unit to A5150" patients whose serious suicide attempts required intensive care, because no ICU personnel are statutorily authorized to place a hold order on a mentally ill patient.

24NAMI was also instrumental in getting LPS amended so that patients' past history could be considered. Formerly, if danger was not demonstrably imminent, commitment was nearly impossible. If patients denied suicidality and did not assault officers or family, they were generally left at liberty.

25Cal Welfare and Institutions Code Section 5151.

26Cal. Welfare and Institutions Code Section 5256.

27 Cal Welfare and Institutions Code Section 5256.5.

28The economics of treatment may explain why psychiatric beds are disappearing across the country, see Joseph Bloom, M.D., "Thirty-Five Years of Working With Civil Commitment Statutes," 32 J.Am. Acad. Psychiatry and Law 430-39 (2004). (The author offers no explanation for this phenomenon.) In the counties nearest my home, there are two hospitals with closed psychiatric wards filled with empty beds, in hospitals surrounded by desperately mentally ill people living on the streets. On information and belief, these closures were economic decisions, in whole or in part.

29Cal Welfare Code Section 5237(a).

30 See Cal. Welfare and Institutions Code Section 5350 et seq.

31Cal Welfare and Iinstitutions Code Sections 5332-5334. The director of the Psychiatric Care Unit for Los Angeles County characterized Section 5254 as a "big obstacle" to treatment, stating that patients often "exercised their rights to leave too early," or if committed for 14 days under 5250, remained hospitalized but unmedicated. Testimony of Dr. Mace Beckson, U.C. Berkeley Mental Health Law Symposium, "Protecting and Treating those Destabilized by Mental Illness: Beyond the Asylum and the Jail" May 27, 2008, afternoon session, available by webcast at MentalHealthLawSymposium.com

32 Mental health advance directives are the subject of a present NCCUSL uniform law project.

33 Cal. Penal Code Section 2960 et seq.

34See Minn Stat. 253B.065 et seq. To order early intervention, the court must find that (1)the proposed patient is mentally ill;(2) the proposed patient refuses to accept appropriate mental health treatment; and (3) the proposed patient's mental illness is manifested by instances of grossly disturbed behavior or faulty perceptions and either:(i) the grossly disturbed behavior or faulty perceptions significantly interfere with the proposed patient's ability to care for self and the proposed patient, when competent, would have chosen substantially similar treatment under the same circumstances; or (ii) due to the mental illness, the proposed patient received court-ordered inpatient treatment under section 253B.09 at least two times in the previous three years; the patient is exhibiting symptoms or behavior substantially similar to those that precipitated one or more of the court-ordered treatments; and the patient is reasonably expected to physically or mentally deteriorate to the point of meeting the criteria for commitment under section 253B.09 unless treated.

35As psychiatrists increasingly handle only medication management, NCCUSL should consider broadening this category to include other licensed therapists, such as marriage and family therapists, who counsel the mentally ill.

36Information demanded includes, Ato the extent available, direct observations of the proposed patient's behaviors, reliable knowledge of recent and past behavior, and information regarding psychiatric history, past treatment, and current mental health providers. The examiner shall also inquire into the existence of health care directives under chapter 145, and advance psychiatric directives under section 253B.03, subdivision 6d.

37 It is unclear whether Minnesota police officers are allowed to transport patients directly to psychiatric hospitals. As psychiatric beds are scarce, someoneBtypically hospital admissions personnelBhas to locate one. Minnesota has a special provision limiting the use of jails as holding stations for the mentally ill, see Minn. Stat. 253B.045, suggesting that police need guidance. If possible, the mentally ill should be transported directly to psychiatric facilities, rather than emergency rooms or jails.

38Minn. Stat. 253B. 05 subd. 1. The emergency hold order can be extended another 72 hours by the court, see Minn. Stat. 253B.05 subd. 3.

39Minn. Stat. 253B.07 subd. 1(c).

40 Minn. Stat 253B.07 subd. 7

41 Minn. Stat. 253B.092. Court involvement at this stage is constitutionally mandated on state due process grounds in Minnesota, see Jarvis v Levine, 418 N.W.2d 139 (Minn. 1988), which has stricter standards on this issue than present federal standards, compare Washington v Harper, 494 U.S. 210 (1990)( upholding review of medication orders by a non-judicial review panel of treatment professionals as consistent with federal due process).

42If the patient has violated the conditions of release, s/he may be returned to the hospital by the court only if 1)the patient's need for food, clothing, shelter, or medical care is not being met, or will not be met in the near future, or (2) the patient has attempted or threatened to seriously harm self or others, Min. Stat. 253B.15 subd.5.

43See Minn. Stat 253B.02 Subd. 17. Such individuals must either meet the statutory definition of Amental illness (which excludes personality disorders), and Apresent() a clear danger to the safety of others as demonstrated by the facts that (i) the person has engaged in an overt act causing or attempting to cause serious physical harm to another and (ii) there is a substantial likelihood that the person will engage in acts capable of inflicting serious physical harm on another, or fit into one of two definitions of sexually dangerous persons, who may include persons with personality disorders.

44 Examples from a recent Associated Press article include a patient who averaged 300 assaults against staff and 100 against patients over seven years, and is only permitted out of his suite when hospital workers wear padded gear and helmets. Another patient who believes that God is ordering him to hit > perverts is only permitted around other patients if he is wearing wrist restraints. see Dena Potter, AMental patients isolated for years despite laws, reprinted in the Contra Costa Times December 25, 2008. For another example, see Enebak v. Noot , 353 N.W.2d 544, 548 (Minn. 1984), involving a patient who had committed some 37 progressively violent rapes before he was committed as mentally ill and dangerous.

45A provisional discharge requires that it Aappears to the satisfaction of the commissioner [of Human Services], after a hearing and a favorable recommendation by a majority of the special review board, that the patient is capable of making an acceptable adjustment to open society. The following factors are to be considered in determining whether a provisional discharge shall be recommended: (1) whether the patient's course of hospitalization and present mental status indicate there is no longer a need for treatment and supervision in the patient's current treatment setting; and (2) whether the conditions of the provisional discharge plan will provide a reasonable degree of protection to the public and will enable the patient to adjust successfully to the community.

46A summary of Virginia law at the time Cho Seung-Hui exploded into violence, written from a family member's perspective, is contained in Pete Earley's Pulitzer-Prize nominated book, Crazy: A Father's Search through America's Mental Health Madness. Here are excerpts (emphasis added): "Sorry you've had to wait, but we're busy, and there's not going to be much I can do for you," [the doctor] said. . . . . He turned to face Mike and asked: "Are you going to hurt yourself or anyone else?" "No!" The doctor glanced back at me and shrugged.. . .: "Virginia law is very specific. Unless a patient is in imminent danger to himself or others, I cannot treat him unless he voluntarily agrees to be treated." Before I could reply, he asked Mike: "Will you take medicines if I offer them to you?" "No, I don't believe in your poisons," Mike said. "Can I leave now?" "Yes," the doctor answered without consulting me. Mike jumped off the patient's table and hurried out the door. I started after him, but stopped and decided to try one last time to reason with the doctor. "My son's bipolar, he's off his meds, he has a history of psychotic behavior. You've got to do something! He's sick! Help him, please!" [The doctor] said: "Your son is an adult and while he is clearly acting odd, he has a right under the law to refuse treatment." "Then you take him home with you tonight!" I exclaimed.

Before the doctor could respond, we both heard a commotion in the hallway. Mike was screaming at his mother because she had told him that he needed to take his medicine.. . My son was so out-of-control that a nurse called hospital security. I was glad. Maybe now they will medicate him, I thought. But before the security guard arrived, Mike dashed outside, cursing loudly. I went after him. Meanwhile, the doctor told my ex-wife that it was not illegal for someone to be mentally ill in Virginia. But it was illegal for him to treat them unless they consented. There was nothing he could do. "Even if he's psychotic?" she asked. "Yes." Mike couldn't forcibly be treated, the doctor elaborated, until he hurt himself or someone else.. . . [My ex-wife] telephoned a friend whose daughter has bipolar disorder. The friend told her: "I had the same problem when we took our daughter to the hospital. I yelled at her doctor: >Do I have to wait for my daughter to hang herself before you'll treat her?' And he said: >Yes. If she attempts suicide, then we can do something. Sorry, but it's the law.'"

47See State of Wisconsin v Dennis H, 255 Wis2d 359(2002) (upholding a five-prong standard which allows involuntary treatment if a court finds a substantial probability of 1)"loss of the individual's ability to function independently in the community or the loss of cognitive or volitional control over his or her thoughts or actions," 2) that the patient is unable, "because of mental illness," to make "an informed choice as to whether to accept or refuse medication or treatment,." 3) that he or she "needs care or treatment to prevent further disability or deterioration," as "demonstrated by both the individual's treatment history and his or her recent acts or omissions," 4) that he or she will, if left untreated, lack services necessary for his or her health or safety," and 5) Athat he or she will, if left untreated, . . . suffer severe mental, emotional, or physical harm that will result in the loss of the individual's ability to function independently in the community or the loss of cognitive or volitional control over his or her thoughts or actions." Wis. Stat. ' 51.20(1)(a)2.e.)

48Se n.34 supra.

49 NCCUSL scholars are in the best position to determine the outer limits of federal constitutional law. Here are some guideposts: O'Connor v Donaldson leaves open the possibility that even the non-dangerous mentally ill can be placed in locked facilities for treatment, as long as they are actually treated. 422 US 563 at n 10. While it is true that competent patients have a right to refuse treatment, incompetent patients whose liberty is restrained also have a right to minimum habilitation and treatment, Youngberg v Romeo, 457 U.S. 307(1982) in the least restrictive environment, Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999). It is arguably a serious violation of their rights to treatment to require them to commit assaults or attempt suicide before they can get help. Competency determinations may not be constitutionally necessary before medication is administered involuntarily, see Washington v Harper, 494 U.S. 210 (1990), although they might be therapeutically appropriate, see n. 50.

50It is now well-established that the mentally ill do not think like civil libertarians. A great many whose hospital admissions are considered Avoluntary believe they have been coerced. Conversely, a great many who were committed against their will later maintain that they entered treatment voluntarily. A critical finding: a majority of those who initially maintained they did not need hospitalization later agree that the decision to hospitalize them was the correct one. As one patient put it, ABeing sick like that, Doc, isn't >liberty' at all, Treffert, The MacArthur Studies: A Wisconsin Perspective, 82 Marq. Law Rev. 759 (1999). The mentally ill perceive less coercion if the decision to hospitalize them is represented as caring, rather than force; if the patient believes that others acted out of genuine concern and treated him/her with respect and good faith


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