Idealism Gone Awry--Exploring origins of dysfunction in mental health care
by John W. Milton, former State Senator
Co-chair, NAMI-MN Legislative Committee
Moved by Ken Kesey's book, One Flew Over the Cuckoo's Nest, a group of
idealistic, energetic and na�ve Minnesota state senators set out in the mid-1970s to
reform the system of caring for the mentally ill. Visits to the old state hospitals
confirmed our worst fears: Kesey's book, and the movie based on it, could just as easily
have taken place here in Minnesota, presumed to be one of the nation's incubators of
progress and reform.
As one of the prime movers in that group, I believed that we were creating a better
alternative to those large, brick-and-stone warehouses where people with brain disorders
were managed by psycho-surgery, electro-shock and numbing meds like thorazine. Where
patients—out of sight, out of mind—would live out their lives, and present no
danger to the families and communities which had sent them away.
After all, it was the mid-1970s. Surely, if we could stop the Vietnam War, desegregate
the schools, win voting rights for African Americans, fight for equal rights for women,
improve safety for workers, and protect the environment, we could reform the mental health
system. And surely, if it could be done anywhere, why not here in Minnesota?
The plan was deceptively simple. Close down the big warehouses. Take the money saved
from that to establish programs in local communities, where families and friends would be
close at hand to support the mentally ill. Replace the more invasive treatments with
family-based therapy and improved medication. In time, we would not only save lives, we'd
be saving the taxpayers' money. It seemed too good to be true.
It was. To begin with, the bureaucracy dragged its feet on shifting money and personnel
to local programs. The stigma of mental illness produced a backlash in many communities,
where the good citizens of Minnesota fought against having "those people" living
down the street. Payment for services fell more and more under the control of three giant
managed care plans, and these, rather than care providers, decided how much care was
"medically necessary." Local governments were inclined to export their problems
to the state, thus keeping a lid on local property taxes. And, state legislators of the
1980s and 1990s were mesmerized by the tangible benefits of cutting expenditures and
returning money to the taxpayers. Whatever benefits might result from reform were too
intangible and long-term, not relevant to incumbent legislators who ran on the short-term
benefits they'd delivered to their constituents.
To make matters worse, when people with brain disorders were liberated from the old
state hospital system, they were assumed to be competent to make choices about whether to
continue treatment. The fact that nearly half of them suffered from anosognosia, a
condition which rendered them incapable of recognizing their illness, was not as well
understood as it is today, and the extreme civil libertarians were (and still are)
unwilling to accept this as a factor in patients' choice of receiving or rejecting
treatment. So in a caring place like Minnesota, where it is unthinkable to let a friend or
relative with diabetes choose not to take insulin, where we prevent older people with
Alzheimer's from wandering across freeways in the dead of winter, we continue to insist on
letting people with serious brain disorders choose whether or not to be treated . . .
until they deteriorate to the point where they become "imminently dangerous" to
themselves or others. And then, in most cases, only if they are on the verge of, or in the
act of, committing some heinous crime.
So, despite the fact that brain disorders strike roughly one in four Minnesota
families, efforts to reform the commitment process are opposed by the Mental Health
Association of Minnesota, (inexplicably) the state hospital association, and (predictably)
the Scientologists, who don't seem to believe that mental illness even exists. To date,
this coalition has succeeded in killing every legislative initiative for reform.
As a result, many of those who were formerly committed to the old state hospital system
are now incarcerated in the state's maximum-security prisons. They have qualified to
receive care by decompensating and committing violence to family, friends, or neighbors.
Their stories are captured by the media, living in our consciousness for a day or two,
then fading into the dark corners from which erupted the violence. Perhaps we've simply
created a different kind of "cuckoo's nest."
There are rays of hope in this dark scene. NAMI-MN is backing a bill authored by
Representative Mindy Greiling and Senator Don Betzold, which would permit earlier
intervention, so that people with brain disorders could avoid decompensation without
becoming "imminently dangerous." Another bill, authored by Senator Linda Berglin
and Representative Fran Bradley, is aimed at funding community-based programs at a higher
level, and making services more available throughout the state. If both of these pass
during the 2001 legislative session, and if the managed care companies are required to pay
mental health benefits on the same basis as those related to physiological health,
Minnesota will take a significant step forward, and toward the vision which inspired those
of us intending to reform the system a quarter century ago. Taking this step will require
courage by legislators, and a better appreciation for the long-term return on this
investment in our people.
It is not too much to hope for, but given political realities, it is perhaps too much
to count on. Even in good old, progressive Minnesota.
West Virginia Has Improved Our Mental Hygiene Process
by Bill Byrne, Esq., Chair, Supreme Court Mental Hygiene Reform Commission and Tom Rodd,
Senior Law Clerk, West Virginia Supreme Court
In 1999, the West Virginia Supreme Court of Appeals formed a Mental Hygiene Reform
Commission. The Commission looked in depth at West Virginia's "mental hygiene"
laws and procedures, that govern the involuntary hospitalization of people due to
retardation, addiction, or mental illness.
A number of the Commission's recommended legislative improvements were contained in
Senate Bill 193, which was passed by the Legislature on April 14, 2001, and signed into
law by Governor Bob Wise on May 2, 2001. The new legislation goes into effect in mid-July
of 2001.
As the result of this reform legislation, West Virginia can build on the strengths of
our current mental hygiene system. Our medical and social service systems will have
increased opportunities and flexibility to provide pro-active and preventive services for
people and families in crisis. We can move toward a more medical model, while fully
respecting liberty, autonomy, and due process.
Notably, this legislation was the result of a cooperative effort of the courts, the
executive branch, the legislature, the private bar, prosecutors, health and social service
professionals, and patient and family advocacy groups. We hope that other states may be
interested in the results of our cooperate-and-compromise approach to reform in this area.
Why was mental hygiene reform needed in West Virginia?
The West Virginia Supreme Court has been spending over $1,000,000 a year (of its
approximately 70 million dollar annual budget) on involuntary hospitalization proceedings,
using court-appointed mental hygiene commissioners and adversarial hearings. This process
was designed 25 years ago, when the average period of time for involuntary hospitalization
in a state mental hospital was 15 years. Today, the average involuntary hospitalization is
for less than 15 days—and in many cases, for a much shorter time period.
There are compelling constitutional, moral, and historical reasons why
"court-type" procedures are (in some cases) a necessary part of society's
response to serious mental illnesses like schizophrenia or bipolar disorder.
Sometimes a person as a result of their illness lacks understanding of the need for
treatment, and involuntary or "assisted" treatment is necessary, to prevent
grave harm to the person or to others. Moreover, until modern medicines were discovered,
involuntary hospitalization and "locked up" living quarters were the only
practical way to care for many people with severe mental illnesses.
Any treatment system that locks up and/or otherwise involuntarily treats people, even
when it is "for their own good," has the potential for abuse. So bringing due
process procedures and protections into play in the involuntary treatment and
hospitalization area has been a great step forward, in preventing abuses of the power of
the state.
However, West Virginia's mental hygiene process, while well fulfilling its due process,
abuse-checking role, has in some cases been a source of needless contention and
unnecessary and added misery for all concerned.
Simply put, sick people need help just as much as they need their rights protected.
A few of the problems identified by the Commission include: (1) lack of adequate
community crisis and chronic relapse prevention services, to reduce involuntary
commitments; (2) lack of less restrictive, court-approved alternatives to involuntary
hospitalization, including release upon condition of medication or other treatment
compliance; and (3) use of an outdated "dangerousness" commitment standard that
stereotypes and stigmatizes people who have a mental illness.
To address these and other important issues, the Mental Hygiene Reform
Commission—composed of political leaders, lawyers, patients, health care workers, and
families—worked for a year to create a comprehensive consensus reform plan, to
improve our current system.
The Commission believes that with comprehensive reform, involuntary hospitalization can
ultimately be substantially reduced; and when involuntary hospitalization is unavoidable,
the process can be made more medical and less criminal, and still respect and protect
fundamental rights.
The important improvements in Senate Bill 193 include:
- updated definitions of "addiction" and "likely to cause serious
harm," to comport with current medical practice. Stereotyped, vague, and stigmatizing
"dangerousness" language is replaced with a medical/social definition that
focuses on the need for treatment of acute and seriously harmful illness.
- removal of mental retardation as grounds for involuntary hospitalization, this issue
being covered in other statutes.
- evidentiary clarification, to allow the decision-maker to consider reliable medical
records and other evidence of past problems.
- mandatory 3-day training for all mental hygiene commissioners.
- cooperative and flexible jurisdiction for mental hygiene commissioners, prosecutors,
sheriffs, and local police.
- waiver of prosecuting attorney at hearings set for non-judicial hours, where the
applicant will suffer no detriment.
- court-approved treatment agreements as a less restrictive alternative to involuntary
hospitalization, with the goal of reducing revolving-door hospitalizations and improving
treatment compliance.
- Conditional release on convalescent status from hospitalization for persons needing to
continue on medication.
These legislative reforms, along with a commitment by the Supreme Court of Appeals of
West Virginia to exercise meaningful oversight of West Virginia's mental hygiene system,
and to coordinate with other stakeholders, should bring greater efficiency and compassion
to our society's response to the problems of severe mental illness.
The 2001 Legislature and its staff, Governor Wise and his staff, the groups and
individuals that joined and supported the Supreme Court's Commission—and particularly
Justice Larry V. Starcher, who got the ball rolling and helped keep it
rolling—deserve a round of thanks.
We Should Know How Many People With Mental Illnesses Are Killed By Police
by Mary Zdanowicz, Executive Director
In April, tensions mounted after Cincinnati police fatally shot a young black man. The
citizens of that city are not the only ones counting the number of black males who are
shot in encounters with police. The U.S. Department of Justice, Bureau of Justice
Statistics released a report in March that compiled statistics about justifiable homicides
by police (in the report, all killings by police are called justifiable homicides). The
report analyzes justifiable homicides based on race, gender and age of the person killed.
In 1998, the most recent year for which data is available, justifiable homicides
occurred at a rate of 1.4 per million people in the general population in the U.S.1
However, the justifiable homicide rate that year in the black population was 4.7 per
million, 3.5 times higher than the general population. While the rate of justifiable
homicides in the general population did not change from 1988 to 1998,2 the
encouraging note is that the rate for the black population declined 16% during that period
(from 5.7 per million in 1988 to 4.8 per million in 1998).
In contrast, there is no official count of the number of persons with severe and
persistent mental illness (SPMI) who are shot by police each year. And despite an
unfortunate wealth of such tragic incidents, no organization of any type keeps track of
them. The Treatment Advocacy Center records details on some in its Preventable Tragedies
Database. The Database summarizes selected U.S. newspaper accounts of the consequences of
non-treatment for individuals with SPMI, including suicides, victimization, violence, and
police shootings. But, the daily search from which the Database is compiled does not
include all newspapers, police shootings are not always covered in the press, and it is
not always reported that a person who is shot has a severe mental illness.
Therefore, we know that the Database cannot possibly contain all incidents of police
shootings of persons with SPMI. Still, the Database shows that at least 37 people with
SPMI were killed by police in 1998 [see chart beginning on this page]. Even this
conservative estimate indicates that people with SPMI were killed at a rate of 5.3 per
million,3 13% higher than the rate in the black population. The fact that this
is a conservative estimate cannot be overemphasized.
Lacking any official statistics on the number of prior shootings, it is unknown whether
the rate of SPMI shootings is declining, as in the black community, or--as we dread and
fear--on the rise. We ask you to join us in requesting the Department of Justice to
analyze this national crisis of people with mental illness being killed in altercations
with police, just as it did the equally profound questions raised in Cincinnati last
month.
DOJ contact information:
Lawrence A. Greenfeld, Acting Director
Bureau of Justice Statistics
810 Seventh Street NW
Washington, DC 20531
email: [email protected]
TAC Preventable Tragedies Database:
< /ep.asp>
Notes:
1
There were 367 justifiable homicides in 1998 when the U.S. population was 270
million. Jodi M. Brown & Patrick A. Langan, POLICING AND HOMICIDE, 1976-98:
JUSTIFIABLE HOMICIDE BY POLICE, POLICE OFFICERS MURDERED BY FELONS, BUREAU OF JUSTICE
STATISTICS (2001); U.S. Census Bureau, Monthly Estimates of the United States Population,
(visited May 4, 2001) <http://www.census.gov/population/
estimates/nation/intfile1-1.txt>
2
There were 339 justifiable homicides in 1988 when the U.S. population was 244
million. POLICING AND HOMICIDE, 1976-98; Monthly Estimates of the United States
Population.
3
There were 37 justifiable homicides of SPMI persons in 1998. The Surgeon General
estimates that 2.6% of the population in the U.S. have SPMI. Therefore, there were 7
million SPMI people in the U.S. in 1998. MENTAL HEALTH: A REPORT OF THE SURGEON GENERAL,
DEPARTMENT OF HEALTH AND HUMAN SERVICES (1999).
It's Not Either Or … Obviously
by Darold A. Treffert, MD
If you build it they will come. Or will they?
Community care activists argue that if you make mental health clinics accessible and
responsive enough, with therapists who listen, along with caretakers who make house calls,
everyone, even the severely mentally ill, will all voluntarily come for care to such a
warm and inviting place. As to those who don't come, and the tragic episodes they
sometimes trigger for themselves or others around them, those are unfortunate anecdotes,
the price of the freedom to choose.
Clinical realists argue that the overwhelming number of psychiatric patients have
always been, and always will be, served on a voluntary basis, just as elsewhere in
medicine. However, mental illness being what it is in some few cases, by its very nature,
it robs the patient of the capacity to choose. So no matter how comprehensive, accessible
and pleasant the clinic might be, even with the retractable roof, plentiful bathrooms and
pleasant staff, some persons with severe mental illness will still require
"assisted" treatment because of some fixed, false belief, a delusion for
example, that it is instead a dangerous or even poisoned place and not to be trusted.
So the question narrows to: if you make the system comprehensive enough, affordable
enough, accessible enough and pleasant enough, do you need an involuntary outpatient
treatment law at all? Or, contrariwise, does an outpatient treatment law by itself, absent
a comprehensive system of care, do any good?
Those were essentially the two questions the Rand report on The Effectiveness of
Involuntary Outpatient was asked to address. The report was prepared at the request of the
California Senate Committee on Rules and released in March 2001.
I was one of two psychiatrists and three attorneys from Wisconsin who, along with 37
other professionals nationwide, were interviewed in depth for that study. Wisconsin was
one of eight states studied in depth regarding its mental health laws and practices. The
report is lengthy but I recommend it to you because it is a very comprehensive, evidence
based review of the empirical literature on involuntary outpatient treatment and its
alternatives. You can then draw your own conclusions, but let me share mine with you.
First, some background: In its last session the California Assembly passed AB 1800,
which would have overhauled the Lanterman-Petris-Short (LPS) Mental Health Act to expand
the criteria for involuntary treatment and to create a separate statutory provision for
involuntary outpatient treatment. It is that LPS Act, you may recall, about which Senator
Lanterman himself said, in recent years, "I wanted the LPS Act to help the mentally
ill. I never meant for it to prevent those who need care from receiving it. The law has to
be changed." In so doing, California would have joined 38 other states, including
Wisconsin, that have included provisions such as grave disability, our "fifth
standard" or its equivalent, and outpatient commitment provisions for the severely
mentally ill, adequately balanced of course with appropriate due process safeguards.
The California Senate balked at passage of such legislation, and instead commissioned
this report to:
(a) review empirical evidence on the effectiveness of involuntary outpatient treatment
and its alternatives; (b) analyze the experience of a select group of other states with
such treatment; and (c) assess the potential impact on people with severe mental illness
in California.
Now the bad news. A major flaw in the Rand study, in my view, is that it seeks to find
if there is any empirical or scientific support for a premise that, to my knowledge, no
one really holds; i.e., Do court orders, without treatment resources, have any useful
effect on outcome? The obvious answer, even without study, is "of course not."
Does anyone actually purport that they do? No one I know. The problem is that such a
question is, in my view, a straw man erected to divert and distract so that it can be
said, as the report does, that, "a court order, in and of itself, has no independent
effect on outcomes." Extrapolating from that flawed premise, the argument continues,
since such court orders are useless, there is no need to change the law to permit them.
The sensible question and crucial question, obviously, is whether a court order, even
in a truly comprehensive system, is necessary to achieve compliance and good outcomes in
some cases, recognizing that in the majority of cases it is not necessary to do so? Does a
truly comprehensive mental health treatment system obviate the need for such orders in
that everyone can be satisfactorily treated on a voluntary basis? On that more germane
question there is some data.
The Duke Mental Health Study, as cited by the Rand Report, is a worthwhile and
well-done "second generation" report of a randomized, controlled study of
outpatient commitment among 331 persons with severe mental illness in North Carolina. That
study concluded that, "extended outpatient commitment reduced hospital readmissions
only when combined with a higher intensity of outpatient services." The Rand Report
appropriately concludes: "These findings show that outpatient commitment can work to
reduce hospital readmissions and total hospital days when the court order is sustained and
combined with intensive outpatient services … and that the court order is no
substitute for intensive treatment." I wholeheartedly agree. Outpatient commitment,
with treatment, can be effective when necessary in some cases, and a court order in and of
itself, absent such treatment, is of no value in terms of outcome.
So what's the problem? Apparently some persons feel that the only way to empirically
prove that court orders in and of themselves do no good, would be to carry out a
controlled study in which some persons committed to outpatient treatment would receive no
services, but carry only a court order, and compare them to a control group who would
receive comprehensive services along with the court order. If the outcome of the group
receiving services did better, then the uselessness of the court order alone would be
demonstrated. To me such a study is unnecessary, and given what we do know about the
effectiveness of treatment, depriving one group of such treatment services would pose
serious ethical problems.
Next the good news. Even absent a "scientific study," the Rand study reports
that, "Interview respondents expressed support for outpatient commitment laws in
spite of the lack of empirical evidence and in spite of their acknowledgement of problems
in implementing outpatient commitment in their own jurisdictions. This support may be
explained by the fact that all respondents agreed that lack of compliance with outpatient
treatment is a real problem, resulting in relapse and rehospitalization for at least some
proportion of people with serious mental illness … among those who criticized the
implementation of outpatient commitment laws in their own states, most criticized the
programs because their states and communities were unable to deliver the promised
treatment." In short, any of us who deal with the severely mentally ill intuitively
and experientially know that it is not either court order or comprehensive treatment that
is most effective with those few cases which require outpatient treatment commitment. It
is a judicious, fairly applied, and due-process protected application of both that is
effective.
On another encouraging note, there is mention in a number of places of the Wisconsin
"settlement agreements" in a very positive light. These are permitted under
Section 51.20 of Wisconsin's Mental Health Act and are in use in a number of counties.
Under these provisions, if it is shown that there is probable cause that the person does
meet civil commitment criteria, a patient can voluntarily stipulate to a finding of
probable cause and waive the time limits (up to a maximum of 90 days) for holding the
formal hearing. The court can then release the person pending a full hearing during which
time the person has the right to receive treatment services on a voluntary basis in a
community treatment program. Conditions the court might impose could include taking
medication on a voluntary basis, keeping appointments, and generally cooperating with
therapy, for example. The person's failure to comply with treatment can result in the
court issuing an order for the patient's detention at an approved inpatient treatment
facility, with a hearing on the matter within 72 hours, followed by proceeding to either a
probably cause or final hearing. If the patient successfully complies with the "hold
open" agreement, and there has been sufficient treatment progress during the 90-day
period (which is often the case), the whole matter is dismissed and treatment continues,
if necessary, on an entirely voluntary basis.
These settlement agreements represent an innovative, hybrid blending of
"coerced" care with voluntary agreement that is often very successful in
achieving mutual treatment goals for both the patient and courts without the long-term
stigma of having been "adjudicated" mentally ill.
In its preface, the Rand Report states, "We have no doubt that those who advocate
for and against involuntary outpatient treatment will use our report to support very
different positions." That has already begun. In view of all of the above, I was
disappointed to find in the Rand Law & Health Research Brief report of this research
this sentence: "There is no evidence that a court order is necessary to achieve
compliance and good outcomes, or that a court order, in and of itself, has any independent
effect on outcome." While I agree with the last half of that sentence, I vigorously
disagree with the first half. The Duke study does, in my view, support the usefulness of
court ordered outpatient treatment when combined with appropriate treatment. Further, the
support of involuntary outpatient treatment when combined with available appropriate
treatment. Further, the support of involuntary outpatient commitment for some persons in
order to receive needed services by all the attorneys, behavioral health officials, from a
variety of disparate vantage points and treatment philosophies, who were interviewed in
depth for the Rand Report, was uniform and firm, calling such outpatient commitments
"an effective legal tool" and "extremely useful and informative." The
fact that some felt such services were inadequate in their particular communities is
hardly a convincing argument against the usefulness of such approaches when adequate
treatment does exist such as is the case in many communities in Wisconsin.
Once all of us can accept the basic ideas that outpatient commitment is necessary for
some few patients who, because of the particular nature of their severe mental illness,
require it, and that such outpatient commitment is effective only if combined with a
comprehensive treatment system, then the polarization around this issue can end, and
legitimate progress can continue to be made. I hope the Rand Report accelerates, rather
than impedes, such efforts. That the Rand Report would help, and not hurt such efforts,
was my hope in participating in the study.
To reiterate yet again: It's not either court order or adequate treatment that works.
Obviously, it is both, judiciously and comprehensively applied.
[Reprinted with permission from The Wisconsin Psychiatrist, Spring 2001.]
