Confronting Forced Treatment

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Confronting Forced Treatment

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1. Confronting Forced Treatment A Presentation by: Michael Allen Relman & Associates, PLLC Virginia Commission on Mental Health Reform Subcommittee on Commitment Criteria, Outpatient Commitment, and Voluntary Treatment Charlottesville, Virginia April 24, 2007

2. Contact Information Michael Allen Relman & Dane, PLLC 1225 19th Street, N.W., Suite 600 Washington, D.C.  20036-2456 202/728-1888, ext. 114 FAX:  202/728-0848 E-mail: [email protected] Website: www.relmanlaw.com

3. Look at the Big Picture Most people with mental illnesses are never involved in violent acts… Steadman HJ, Mulvey EP, Monahan J, et al: Violence by people discharged from acute psychiatric inpatient facilities and by others in the same neighborhoods, Archives of General Psychiatry 55:393–401, 1998 …and are capable of weighing treatment options and making rational and valuable contributions to their own treatment Grisso T, Appelbaum PS: Assessing Competence to Consent to Treatment: A Guide for Physicians and Other Health Professionals. New York, Oxford University Press, 1998 Despite alterations in thinking and mood, people with psychiatric disorders are not automatically less capable than others of making health care decisions American Psychiatric Association, Practice Guideline for the Treatment of Patients With Schizophrenia. American Journal of Psychiatry 154(Apr suppl):1–63, 1997

4. Media Coverage Affects Public Views Discriminating Times, by Pattrick Smellie, available at http://www.mhc.govt.nz/publications/2005/MHC%20Media4.pdf Feeding Stereotypes: Crime reporters fall into trap of ignorance in portraying suspects, researcher finds, by Pattrick Smellie, available at http://www.bazelon.org/newsroom/archive/1999/smellie.htm

5. Treatment Advocacy Center Mourners gather for Virginia Tech's fallen National- NPR, April 18, 2007 Man shot in the face by off-duty officer is mentally ill MS- WJTV, April 17, 2007 Man accused in cross country shootings extradited to Idaho ID - Casper Star Tribune, April 16, 2007 With stepdaughter beside her, woman shot dead in car PA - Philadelphia Daily News, April 13, 2007

6. Responding to Tragedies: Hartford Courant editorial (9/10/99) Hartford Courant editorial (9/10/99):

7. Responding to Tragedies: Psychiatric Services (March 2001) “A handful of highly publicized violent incidents involving people with mental illnesses has rekindled the debate on involuntary outpatient commitment.”

8. Responding to Tragedies: Kisely, Xiao et al, British Journal of Psychiatry (2004) “There are several dangers to [subjecting more people to compulsory treatment]. Aside from the effect on individual liberties, such initiatives give the impression that legislators are addressing the needs of patients and their [caregivers], while actually doing very little. Legislation in this area may also detract from the introduction of interventions known to be of benefit to individuals with severe mental disorders, such as assertive community treatment (Marshall & Lockwood, 2003), but which are more expensive than legislative solutions to the problem.”

9. The Dysfunction of the Public Mental Health System Recognized by: New Freedom Commission on Mental Health, Interim Report to the President National Council on Disability, The Well Being of Our Nation: An Inter-Generational Vision of Effective Mental Health Services and Supports States Themselves, Disintegrating Systems: The State of States’ Public Mental Health Systems

10. President’s Commission Mental health system in a shambles, Policy discussions are not focused on systemic change “Mental Health” implies a sense of personal control over one’s environment and a sense of well-being Time to look at new paths to recovery

11. Disintegrating Systems “We spend billions of dollars dealing with the consequences of untreated mental [illness]….California explicitly rations care to only those with the most extreme needs—and even then we turn people away.” Little Hoover Commission, California

12. Disintegrating Systems “Appropriate outpatient services were not available so emergency services were utilized. People can’t get to the next level of care because there isn’t any room at the next level for them.” State of Nebraska Region VI Behavioral Health: A Community Action Plan for Adult Services

13. Disintegrating Systems “Unfortunately, our practices lag behind our knowledge, both in treatment and in service system design.” Florida (2001)

14. Disintegrating Systems “We do not tell cancer patients to come back if and when their disease has metastasized. But we turn mental health clients away and tell them to return when their symptoms are so severe and persistent that they cannot meet their own needs.” Little Hoover Commission, California

15. Constitution Dictates When and How Liberty May be Curtailed Police Power: The public is justified in expecting the criminal justice system to protect it against people who commit violent crimes, whether or not they are mentally ill, and the law has long recognized the legitimacy of removing actively dangerous people from the community and confining them in prisons and jails. Parens Patriae: For the small number of people whose mental illness makes them dangerous to themselves or others but who have not committed criminal acts, the law permits state authorities to seek involuntary hospitalization.

16. Public Safety and Individual Rights It serves neither public safety nor individual rights to have currently dangerous people released into the community. It makes more sense from both perspectives to provide for screening, identification, peer support, early intervention, outreach and enriched and comprehensive services rather than the current “take a number” approach.

17. Advocates of Forced Treatment Have… Focused on public fears about mental illness and violence which likely increases the stigma felt by people who have been diagnosed as having mental illnesses. Advocates of involuntary Attempted to shift public attention toward mandated treatment strategies and away from voluntary therapeutic models.

18. IOC, not “Assisted Outpatient Treatment” Outpatient commitment is not typically used for people who are currently dangerous; such individuals are generally held in inpatient settings. Nor does it seek to protect those who are currently incompetent to make treatment decisions. Rather, it seeks to override the expressed wishes of a legally competent person who is thought to have some potential to become dangerous or gravely disabled in the future.

19. Forced Treatment Advocates Say 50% “Lack Insight” into their Illness However, the construct of “insight” lacks specificity and legal meaning. Its use beclouds accepted legal norms, which limit the use of involuntary treatment for competent individuals.

20. Five Reasons to Question IOC or Relaxed Commitment Criteria Insufficient evidence of effectiveness Same objectives could be achieved with enhanced, voluntary services Diversion of limited resources from proven and successful programs. May actually undermine public safety by pushing people away from mental health system May violate the constitutional right to control one’s own treatment decisions.

21. Not an Evidence-Based Practice Compared head-to-head with a program of enhanced and coordinated services, IOC is no more effective in: Preventing subsequent acts of violence and arrest Reducing hospital days Improving quality of life for consumer

22. Not an Evidence-Based Practice The RAND Study: The Effectiveness of Involuntary Outpatient Treatment: Empirical Evidence and the Experience of Eight States, available at http://www.rand.org/pubs/monograph_reports/2007/MR1340.pdf The New Freedom Commission on Mental Health Interim Report: http://www.mentalhealthcommission.gov/reports/interim_toc.htm Final Report: http://www.mentalhealthcommission.gov/reports/FinalReport/downloads/FinalReport.pdf

23. Not an Evidence-Based Practice RAND: 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 outcomes. The attorneys, behavioral health officials, and psychiatrists who were interviewed support involuntary outpatient treatment as a way to make sure people get needed services, but many feel the services offered in their communities are inadequate for making involuntary outpatient treatment work. Available data make it very difficult to estimate the law's potential effect in California. The data suggest that a significant percentage of people with mental illness who need services aren't getting them, and those who do get very few.

24. Not an Evidence-Based Practice New Freedom Commission: The Interim Report concluded that the system is not oriented to the single most important goal of the people it serves — the hope of recovery. State-of-the-art treatments, based on decades of research, are not being transferred from research to community settings. In many communities, access to quality care is poor, resulting in wasted resources and lost opportunities for recovery. More individuals could recover from even the most serious mental illnesses if they had access in their communities to treatment and supports that are tailored to their needs.

25. Not an Evidence-Based Practice Kisely, Xiao, et al., “Impact of compulsory community treatment on admission rates,” 184 British Journal of Psychiatry 432-438 (2004): In spite of the lack of evidence for the effectiveness of compulsory community treatment, governments in jurisdictions such as Nova Scotia and parts of the UK are actively considering similar legislation. In England and Wales, this will increase the circumstances in which someone might be assessed and subjected to compulsory treatment, and reduce the opportunities for discharge.

26. Same Results Without Side Effects RAND: “…the literature provides clear evidence that alternative community-based health treatment programs can produce good outcomes for people with severe mental illness. In one such program--Assertive Community Treatment (ACT)--community-based care is delivered by a team of highly trained mental health professionals. Because ACT is staff-intensive, it is more expensive than traditional mental health services. No randomized clinical trials have examined the relative efficacy of involuntary outpatient treatment and assertive community treatment. Thus the empirical literature does not tell us whether a court order is necessary to achieve good outcomes.

27. Same Results Without Side Effects The worthy goals of improving public safety and treatment compliance and reducing rehospitalization rates could be achieved by providing enhanced and coordinated services and supports, without the potential expense, trauma, and violation of legal rights occasioned by outpatient commitment.

28. Same Results Without Side Effects Policy makers should review the research literature, which shows that outpatient commitment confers no apparent benefit beyond that available through access to effective community services.

29. Line-Jumping Will Divert Resources Away from Proven Approaches We have the technology to provide essential services and supports, even to the hardest-to-reach people, but we have failed to fund the effort to do so: “Housing First” Peer Support Assertive Community Treatment Psychosocial Rehabilitation Wraparound Services

30. Line-Jumping Will Divert Resources Away from Proven Approaches IOC pushes a certain group to the “front of the line,” thereby pushing everyone else who has been waiting further back in line Unless treatment resources are consistently provided along with outpatient commitment, orders for involuntary treatment may hurt the people most in need of voluntary mental health services and supports by diverting limited resources from proven and successful programs

31. Line-Jumping Will Divert Resources Away from Proven Approaches U.S. Surgeon General’s Report on Mental Health (2000): “[T]he need for coercion should be reduced significantly when adequate services are readily accessible. . . . Randomized clinical trials have shown that psychosocial rehabilitation recipients experience fewer and shorter hospitalizations than comparison groups in traditional outpatient treatment.”

32. Line-Jumping Will Divert Resources Away from Proven Approaches Governmental support for mental health systems is declining in real terms. When such systems are required to make services available to people for whom a court has ordered treatment, others may be deprived of effective voluntary services. Every dollar prioritized for coerced treatment is a dollar that is not available to pay for effective voluntary services, such as peer support, outreach, adequate housing, jobs programs, and rehabilitation.

33. Undermine Public Safety by Pushing People Away from Services The coercive character of outpatient commitment may actually undermine public safety by alienating people who have mental illnesses from the mental health system.

34. Undermine Public Safety by Pushing People Away from Services Although informal coercion by family members, case managers, and others may overcome some consumers’ reticence about getting treatment, legal coercion in the form of court orders for outpatient commitment may have the unintended consequence of driving many consumers away from the mental health system.

35. Undermine Public Safety by Pushing People Away from Services By its very nature, outpatient commitment may undermine the treatment alliance and increase consumers’ aversion to voluntary involvement with services As a result, they may not come to anyone’s attention until the point of crisis, when services are much more coercive and expensive Campbell J, Schraiber R: In Pursuit of Wellness: The Well-Being Project. Sacramento, California Department of Mental Health, 1989

36. Right to Control Treatment Decisions The law recognizes a strong presumption of competence to make treatment decisions and has established a person’s right to make his or her own medical decisions as one that is fundamental and should not be interfered with absent a compelling state interest

37. Right to Control Treatment Decisions Although restraining a currently dangerous person may be permissible, a mere desire to prevent future deterioration absent dangerousness has generally not been found to be a compelling interest Addington v. Texas, 441 US 418 (1979)

38. Voices of Experience Nassau County Mental Health Commissioner Howard Sovronsky: “We must not lose sight of the fact that it is largely the availability and access to community-based services that has the greatest impact on our most needy citizens. It is the support and encouragement we provide that is the most valuable aid. It is compassion not coercion that must drive our system.”

39. Voices of Experience Tom McGilvray, NYS Conference of Local Mental Hygiene Directors: It is the “the availability of Case management and ACT” that “fundamentally affect the day-to-day status of many seriously mentally ill clients, whether or not a client is under (a court) order, which he adds, does not “magically produce (missing) housing resources.”

40. Voices of Experience Toni Lasicki, Association for Community Living: “Do we really have to take away people’s freedom to realize that the system is stretched beyond its capacity, and that when and if we add the right resources, clients WILL be better served by willing providers?” 

41. Voices of Experience Dr Sam Tsemberis, Pathways to Housing recently released new data that promoted an 80% service retention rate and general stability among a group of primarily young men of color with psychotic disorders and previous histories of homelessness and non-participation with services…the very same group that has primarily been targeted for court orders. And he does this without mandating treatment adherence or abstinence but by offering ‘housing first’ via a model that merges supported housing and ACT team services.

42. Voices of Experience Shelly Nortz of the Coalition for the Homeless cites an innovative voluntary community housing initiative that has achieved a compliance level of 88% with an average 83% reduction in re-hospitalization, incarceration and homelessness for over 10,000 homeless severely mentally ill adults, rivaling if not exceeding similar rates for those ordered into treatment.

43. Mental Health/Civil Rights Manifesto “Five Points” Campaign: An attempt to capture media and public attention….from a C/S/X perspective

44. Point 1 People diagnosed with mental disorders are citizens of our communities, with the full rights and responsibilities of all other citizens.

45. Point 2 When the big institutions were closed, we were promised holistic, empowering, and comprehensive community based services. That promise was never fulfilled.

46. Point 3 The root causes of violence are complex. Violence in our culture cannot be explained away by blaming people believed to be mentally ill.

47. Point 4 Psychiatric drugs are far from benign. While some people find them helpful, they can also cause needless suffering and lead to violent actions.

48. Point 5 By making people believed to be mentally ill seem dangerous, unpredictable and different from everybody else, it becomes easier to convince ordinary people that it is acceptable to legally oppress us and take away our civil rights.

49. Where Should we be Spending Scarce Resources? Even if outpatient commitment were found to “work” for a small population, the question remains whether it is the most effective means of engaging that population and providing essential services and supports in the community.

50. Where Should we be Spending Scarce Resources? We have the technology to provide essential services and supports, even to the hardest-to-reach people, but we have failed to fund the effort to do so.

51. A Model Law on Access to Mental Health Services Empower and authorize individuals with serious mental illnesses to obtain the services and supports they need to be partners in their own recovery. Provide a legally enforceable right to receive mental health services and supports

52. Article 1: Findings The inability to access comprehensive and timely mental health services and supports results in unnecessary institutionalization, homelessness, dependence and incarceration. Effective community-based services and supports have been identified which promote recovery, community integration and economic self-sufficiency for adults with serious mental illnesses.

53. Findings…. The state spends millions of dollars dealing with the consequences of untreated mental illness due to inadequate resources and poor design. It is in taxpayers’ interest to establish an enforceable right to mental health services and supports for adults with serious mental illnesses.

54. Article 2: Definitions Defines various terms used in the bill, including: advocate eligible person mental health services petition public mental health authority recovery-oriented service matrix supports

55. Article 3: Grant of Enforceable Right Eligible individuals have an enforceable right to receive mental health services and supports in sufficient … amount, duration, scope and quality …to support recovery, community integration and economic self-sufficiency.

56. Grant of Enforceable Right…. Services and supports must be based on the person’s own goals, established in partnership with appropriate treatment professionals and spelled out in a service plan to be carried out in the most integrated appropriate setting. The bill establishes a right to voluntary services. It is not intended to impair the validity of court orders under the state’s involuntary commitment and involuntary treatment statutes.

57. Article 4: Access to Services A person with a mental illness may petition for services and support A decision on a petition must be made within 10 days A potentially eligible person at imminent risk of hospitalization, incarceration or homelessness is presumptively eligible and services, such as crisis services, must be made available within 24 hours of the filing of a petition.

58. Article 5: Individualized Service Plan The bill requires development of an individualized service plan for eligible individuals, and urgent mental health needs must be met even before a service plan is developed. The service plan, which will be reviewed and modified periodically, will focus on the petitioner’s strengths and life goals and the services and supports needed to achieve those goals.

59. Individualized Service Plan…. Petitioners are to be full partners in development of their plan and will be given information for making informed choices. Information will also be provided them about advance service planning through advance directives.

60. Article 6: Mandatory Outreach to Potentially Eligible Persons The bill requires the mental health authority to conduct outreach to inform people about the availability of supports and services and their rights under this law. Special efforts are required to engage potentially eligible individuals who are or are at risk of homelessness or incarceration. Outreach staff will be available to assist individuals in completing petitions.

61. Mandatory Outreach…. Individuals must receive information describing the list of available services and the availability of transportation, scheduling assistance and housing and employment programs.

62. Article 7: Access to Trained Advocates The bill provides that each eligible or potentially eligible person shall have access to a trained advocate who is independent of the public mental health authority. Petitioners will choose their advocate from a list of qualified individuals. Within two years of enactment, a majority of the individuals recruited, trained and employed as advocates will be people who have personally experienced mental illness.

63. Article 8: Appeals Process The Model Law authorizes an appeals process: Administrative complaint Lawsuit in any court of competent jurisdiction.

64. Appeals Process…. Appeals may be filed with respect to: eligibility determination or service planning process denial, reduction, irregularity or termination of services failure to provide services and supports in sufficient amount, duration, scope or quality failure to appoint an advocate denial of any other right provided by this legislation.

65. Article 9: Emergency Hearings The bill sets up an emergency hearing process to be used when an individual is at risk of severe harm. Severe harm includes, but is not limited to, risk of imminent hospitalization, incarceration or homelessness. Emergency hearing decisions must be rendered within 24 hours and followed by a full hearing.

66. Article 10: Quality Improvement and Evaluation The Model Law describes a quality-improvement and evaluation process that the public mental health authority must implement: Performance-measurement system Outcome measures developed by a commission appointed for that purpose. Individuals with serious mental illnesses, family members, advocates, providers and experts in quality assurance must be appointed to the commission.

67. Article 11: Administrative Matters The bill includes requirements relating to its administration, including privacy protection for personal health care information. The public agency must seek other available sources of funds (such as private insurance, Medicaid, Medicare) before using funds appropriated specifically for the purposes of this legislation.

68. Administrative Matters…. The rights and obligations created under this legislation will remain in effective should the public mental health system be reorganized or privatized in the future.

69. Article 12: Authorization of Appropriations Authorizes appropriations for necessary services to eligible individuals.

70. Innovative Approaches to Providing Permanent Housing for People with Mental Illnesses

71. Pathways to Housing New York, NY Pathways provides clients with housing first, and then offers services and treatment to people in their homes on a voluntary basis Data from 2000 showed that 88% of the program's tenants remained housed after five years, compared to 45% for “linear” programs Sam Tsemberis, Executive Director, Phone: (212) 289-0000. Website: http://www.pathwaystohousing.org/

72. The Village Integrated Services Agency The program is not residential, but involves finding acceptable housing for patients. One informal rule the program follows is not referring anyone to housing where a staff person would not feel comfortable visiting in the middle of the night. Most of the members live in independent apartments and get supports, including medication monitoring, housekeeping, shopping, and budgeting.

73. The Village (continued) For clients enrolled in the program for at least one year, there was a 77 percent increase in permanent housing Contact: Mark Ragins, MD, The Village Integrated Services Agency. Telephone: 562/437-6717. E-mail: [email protected] Website: http://www.village-isa.org/

74. Ohio Department of Mental Health: Housing as Housing Instead of group living designs, housing-as-housing emphasizes scattered-site, mixed-site design, meaning that buildings are geographically dispersed and that tenancy at a given site includes both mental health consumers and the general public. Website: http://www.newhousingopp.org/hah.htm

75. Corporation for Supportive Housing CSH has worked with a number of providers across the country to develop permanent, affordable supportive housing for people who are homeless and have mental illnesses or substance abuse problems. For more information: www.csh.org

76. Vinfen Massachusetts Zero reject policy: Vinfen is committed to meeting the needs of every individual referred regardless of the cultural or linguistic background, medical needs or the severity of the disability. For more information: Vinfen Corporation , 950 Cambridge Street , Cambridge, MA 02141. Phone: 617-441-7170 . Website: www.vinfen.org

77. Housing Unlimited Rockville, Maryland HUI separates housing from psychiatric services, concentrates on housing only, and offers permanent housing that emphasizes quality and affordability. Each HUI home houses two to five tenants   For more information: Abe Schuchman, Executive Director, Housing Unlimited, Inc. 1398 Lamberton Drive, Suite G1Silver Spring, MD 20902 Phone 301.592.9314. E-Mail: [email protected] Website: www.housingunlimited.org

78. Further Reading Allen, “Waking Rip Van Winkle: Why Developments in the Last 20 Years Should Teach the Mental Health System Not to Use Housing as a Tool of Coercion,” 21 Behavioral Sciences and the Law 503 (2003), available at http://www.bazelon.org/issues/housing/articles/wakingrip.pdf

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