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South Florida Sun-Sentinel
February 18, 2004
Reprinted with permission. All rights reserved.
EDITORIAL
Baker Act reform: Protect the vulnerable with changes in law
Almost half of the mentally ill suffer from anosognosia, an impairment of the brain that prevents them from realizing they need treatment. They don't believe they're ill, so they refuse medication that could help them.
Says Joanne Neagus, forensic director for the Broward County chapter of NAMI (National Alliance for the Mentally Ill): "The first thing that goes in mental illness is judgment."
So, while it is entirely appropriate for the legal system to protect the civil rights of the mentally ill, it's foolish to stretch the interpretation of those rights to the point where they become impediments to the treatment people need. Yet that is what the laws of Florida and eight other states do.
The "Baker Act," Florida's mental health law, authorizes law enforcement officers, judges and mental health professionals to involuntarily commit for inpatient observation and stabilization a person who appears to be in crisis and suffering from mental illness. But courts have generally ruled that they can do so only if the person is judged to be an imminent danger to himself or others, and only for a period of 72 hours.
After that time, the person must be re-evaluated and, if not charged with a crime and if deemed to be stabilized and no longer an immediate threat, released. In all too many cases, the mentally ill person, once on his or her own, fails to take prescribed medications or follow a therapeutic treatment regimen at an outpatient clinic. It isn't long before he or she has "decompensated," or relapsed, and is either in trouble with the law or "Baker Act-ed" again, or both.
In 2002, 919 Florida adults were Baker Act-ed four or more times. There was a 14 percent increase in the number of adults with multiple Baker Act examinations. One mentally ill person alone accounted for 41 such examinations at a cost of about $81,000 -- not counting court costs, law enforcement resources and long-term treatment.
System wasting money
This is a foolish system that wastes money, helps few and stimulates recidivism, which wastes more money. It's also demoralizing to police and others who attempt to use the Baker Act to help the mentally ill get treatment and stay out of trouble. When the person is back on the streets again a day or two later, it undermines the effectiveness of a Homeless Outreach Program or a Crisis Intervention Team, both of which are known to work if the courts and Baker Act receiving facilities cooperate.
Florida must follow the example of 41 other states and give the law the unambiguous power to involuntarily commit a mentally ill person for court-ordered outpatient treatment, including requiring the person to take prescribed medications. This would prevent a relatively small group of recidivists from exhausting the resources of law enforcement, the courts and the taxpayers while getting little or no help for their illnesses.
The problem with the Baker Act as currently written is largely interpretive. According to section 394.467, subsection 2a of the Florida Mental Health Act (the law's official title), "a person may be involuntarily placed for treatment upon a finding of the court by clear and convincing evidence that he or she is manifestly incapable of surviving alone . . . and, without treatment, is likely to suffer from neglect or refuse to care for himself or herself. . . ."
This appears to authorize court-ordered outpatient treatment on the basis of neglect to care for oneself even in the absence of the "imminent danger" benchmark. But courts have been reluctant to apply this standard out of fear of trampling on the civil rights of the mentally ill.
This begs several questions: Is the right of the mentally ill to be "free" greater than their right to treatment for their illness, treatment they are too ill to realize they need? Does the law as currently interpreted truly protect the rights of the mentally ill, or is it in effect an excuse to deny them treatment? And where should society draw the line on a person's right to be crazy?
There is a subtle tension on these points between those who favor the highest degree of freedom possible for people living with mental illness and those who favor treatment for the mentally ill, even if by coercion. Both camps are equally well-meaning, and both make good points.
It's important to understand, though, that mental illness itself effectively robs people of their civil rights by preventing them from recognizing what is in their own best interests. It is undeniable, therefore, that an untreated mental illness can make freedom a very mixed blessing. It can also be dangerous to the mentally ill person and anyone with whom he or she comes in contact.
The pro-treatment camp has it right. Clearly a person's right to be crazy ends before he or she becomes an immediate danger to others. Their neglect of their mental illness is a long-term threat and must be dealt with accordingly, for the good of both society and the mentally ill. Make no mistake: along with other considerations and with true concern for the mentally ill notwithstanding, this is a public-safety issue first and foremost.
Continuity of care vital
Studies show that when people with severe and persistent mental illness receive appropriate treatment, they are no more violent or dangerous than people who are not mentally ill. It is when they fail to comply with treatment that they become dangerous to themselves or others. Mental illness is chronic, so continuity of care is vital. Waiting until they reach the danger point before ordering them to comply often means waiting too long. Inevitably, someone gets hurt, or worse.
Five years ago, Andrew Goldstein, a man with severe mental illness who had a history of noncompliance with treatment, pushed Kendra Webdale, a 32-year-old native of Buffalo, in front of a New York City subway train. The public outcry over Webdale's death led to passage of "Kendra's law," authorizing court-ordered outpatient treatment for the mentally ill in New York state.
Simply ordering someone to do what he or she can hardly even remember to do may seem like a poor solution, but the experts and the data agree there is something about a judge's order that can succeed where all else fails. It seems it takes a black robe to get the mentally ill to sit up and take notice.
Since Kendra's law took effect, homelessness, hospitalizations, arrests and incarcerations have all declined dramatically in New York for those receiving court-ordered outpatient treatment. Incidents involving harm to self or others also have declined sharply.
Other states with similar laws have reported similar results. A Duke University study found that long-term outpatient care reduces the risk of arrest or hospitalization by 74 percent, and that the number of patients under such care are half as likely to be involved in acts of violence.
There is no question that court-ordered outpatient treatment works and can dramatically reduce criminal recidivism among the mentally ill. It can clip the wings of many a "frequent flier."
Paradoxically, that clipping of wings enhances the freedom of the mentally ill, for jail is the antithesis of freedom. Homelessness is no picnic either, yet there are an estimated 15,000 Floridians with untreated mental illness who are homeless.
On the surface, court-ordered outpatient treatment seems an infringement on the freedom of the mentally ill. In reality, it gives them greater true freedom by allowing them to function in the community without getting arrested. Society as a whole benefits as well, from reduced strain on the criminal justice system and the taxpayers. Recidivism is expensive.
Treatment is more expensive and less effective in a jail than in a mental health facility. Yet there are more than three times as many people with severe and persistent mental illness in Florida's jails as there are in state psychiatric hospitals getting the treatment they need.
In Broward County, it costs four times as much to incarcerate a mentally ill inmate as it does a general-population inmate. The percentage of inmates on psychotropic medications has grown fives times as fast as the overall inmate population in the past year. In five years it has grown 116 percent, but the number of Baker Act-ed inmates has declined 43 percent even though Baker Act evaluations are up by 14 percent. Similarly, more people in the general population are being taken for Baker Act evaluations, but there are fewer people in psychiatric beds.
Clearly, too many people are being evaluated and released rather than committed for treatment, largely because of the overly strict interpretation of the "harm" provision.
In all three South Florida counties, "harm" is increasing and "neglect" decreasing in frequency as the reason cited for a Baker Act evaluation. This is evidence that judges and many of those who do Baker Act evaluations are failing to recognize how much harm a person can do through neglect even without posing a direct threat, such as of imminent violence, to himself or others.
Statistics also show that police are increasing as the initiating source of a Baker Act evaluation at a faster rate than judges or mental health professionals. This shows that the Baker Act is too often being invoked too late in the process of deterioration that afflicts a mentally ill person when he or she "decompensates."
Try stricter enforcement
The law needs a stricter and clearer enforcement mechanism. A more reasonable interpretation of the Baker Act, or, better yet, a revision of the Baker Act by the Legislature to make explicit the power of court-ordered outpatient treatment, could greatly reduce recidivism at the point where mental illness intersects with criminal justice.
Any revision of the law also should include a provision to lengthen the period of observation in a Baker Act evaluation. In current law the period is 15 minutes -- much too short a time to fully evaluate a person's mental condition. It isn't uncommon for a person to be wildly "acting out" in public, but then, when "Baker Act-ed" and examined, present himself as perfectly calm and rational. It's not hard to do for a mere 15 minutes.
Yes, even the mentally ill know how to manipulate the system. They just don't know it's themselves they're hurting.
Fortunately, efforts are being made in the Florida Legislature to help the mentally ill to stop hurting themselves. A bill in the Senate, SB 700, would create a new section of the Baker Act applying to "involuntary outpatient placement."
The bill is by no means a loosely written invitation to abuse. It would carefully establish a nine-part set of criteria a court must meet before ordering involuntary outpatient treatment. It recognizes for the first time a clear interest on the part of both the state and the person with mental illness to see to it that the person receives the treatment he needs before he becomes a danger to himself or others.
The bill has the support of, among others, the Florida Sheriffs Association, the National Sheriffs Association and the Treatment Advocacy Center, a national nonprofit organization "dedicated to eliminating legal and clinical barriers to timely and humane treatment" for the mentally ill.
It should have the support of every citizen as well. It would protect and help the mentally ill while shielding the public from the costs and dangers associated with untreated mental illness. Its provisions are humane and sensible and strike the perfect balance between the interests of society and those of the mentally ill.
Strong support for SB 700 is crucial, because the bill never came to a vote in the Senate last year after overwhelmingly passing the House. Easy passage in the House of HB 463 is expected again, so overall passage of the legislation likely will be riding on the Senate bill.
One possible obstacle is some looming opposition from cities concerned about the potential for unfunded costs. The Legislature must make sure it gives not only the lip service of a "yea" vote to this reform, but also the real service of a substantial investment of money. It will surely be worth it in the long run, and the cities will be far from the only ones that will benefit.
Fixing Florida's mental health system requires a combination of actions. It would do little good to pour more money into the system or to improve the delivery of services if there were no way to get the mentally ill to avail themselves of those services. That's why Baker Act reform is essential.
By the same token, it will do little good to revise the Baker Act to empower the state to order outpatient treatment if there isn't enough money to make quality outpatient treatment available to those who need it most. You'd be taking away the false freedom of the mentally ill without giving them true freedom in return.
How much money will it take? Well, New York allocated $150 million for implementation of Kendra's law, and the law has been a spectacular success. The Florida Legislature isn't likely to come through with that kind of money, although it should, but that figure is a good indication of what it takes to do the job right. The Legislature must try to come as close to it as possible, even in a lean budget year.
Solving the problem of criminal recidivism among the mentally ill is something that should appeal to liberals and conservatives alike. The mentally ill deserve help and protection, and the rest of us deserve both sound fiscal management and protection from those whose untreated mental illness makes them a public threat.
All Floridians should get behind Baker Act reform, and they should support a push for higher funding levels and better delivery of the full array of mental health and substance abuse services. A dysfunctional mental health system is a financial drain, a disservice to the mentally ill and a danger to us all.