S3: Mississippi

 Jesse: Michelle, generally speaking, what is the difference between a criminal process that leads to a person being detained and a civil process that leads to a person being detained? 

Michelle: I would say, civil versus criminal, civil is slightly less punitive, ever so slightly less punitive. In that, yes, you are not going through the fingerprinting system, the mugshots, you're not being put into jail. You don't have a bail that you have to pay in order to be able to go home. Those would be the only benefits that I could think of. 

 Jesse: Yeah, generally the civil commitment process doesn't lead to a person being fingerprinted, or a mugshot, or being held in a jail, unless you are in Mississippi. 

Michelle: Oh, shit. Mississippi? I like that you didn't tell me what state we were doing first because if you had said, today we're doing Mississippi, my heart would have plummeted, but it wouldn't have plummeted the same way it just did. Oh, man. 

 Jesse: Well, expect more heart plummeting conversation about mental health laws because what podcast is this?  

Michelle: This is committable. 

Jesse: Perfect, and now on to Mississippi. 

Jesse: This is Committable, a podcast about involuntary commitments. I'm Jesse Mengen, and I'm here with Committable producer Michelle Stockman. 

Michelle: Hello. 

Jesse: And for this episode, we're going to be talking about mental health laws in Mississippi. And to learn more about those laws, I spoke with Isabelle Taft. 

Isabelle Taft: My name is Isabel Taft, I am a health reporter at Mississippi Today. This year I am focusing on mental health in Mississippi as part of ProPublica's local reporting network with a focus on the issue of people being held in jails in our state with no criminal charges during the civil commitment process.

Jesse: So you recently wrote an article focusing on this civil commitment process, which can result in people being held in jail. Can you talk a little bit about that process and what does the law say about that civil commitment process? 

Isabelle Taft: The first thing to know Is that this process plays out somewhat differently across the counties in the state. So you can generalize and the law applies in every county but there's going to be wrinkles and variations, especially as it relates to the use of jail during this process. What the law says is that anyone, it can be anyone, can go to their county chancery clerk's office to file an affidavit alleging that a person is in need of mental health or addiction treatment because they pose a danger to themselves or others. They have to provide sufficient evidence to substantiate this claim. And then the chancery clerk's office then begins the process of summoning evaluators to evaluate this person. The first step in the process is actually a pre evaluation screening at the local community mental health center. And then a person is supposed to be evaluated by at least one physician, it could be two, or it could be one doctor and then a physician's assistant, or a nurse practitioner. That's supposed to happen within 48 hours. And then within 7 to 10 days of that examination, someone is supposed to have a hearing and then the judge can decide if the person should be committed to a state psychiatric hospital or to another facility or not mandated into any kind of treatment at all. Where jail comes into the picture is that the law says that during this process before a person has their hearing, they may be held in jail if there is no reasonable alternative. And in some counties this has been interpreted to mean, well, we don't have a hospital here. Therefore, jail is all we have. Therefore, anyone going through this process may be held in jail. 

Jesse: Is that designed into the process? Or is that an accident? What's happening there?

Isabelle Taft: Yeah, I think it is not designed into the process in the sense that if you read the law, it clearly does not envision jail being used regularly, routinely the way it is in many counties, but it does allow jail to be used. It's a little bit unclear what the law allows after someone has had their hearing and is awaiting admission to a treatment facility, but the law does say people can be held in jail without criminal charges during this process if the court finds there's no reasonable alternative. And to the question of design, I think It's not a secret that this happens in the state, so certainly it is by design that nothing has really been done to stop this practice, but the law itself does not, you know, encourage this practice. 

Jesse: So you were covering one particular story that ended tragically and in that story, an affidavit is filed to have someone else evaluated, and that goes to a Special Master. What is a Special Master? 

Isabelle Taft: Yeah, a Special Master is a person who has been appointed by the chancellor in their area to hear these cases, so the Special Master could be anybody, they just have to be an attorney. They don't have to have any kind of special training in mental health or behavioral health, and they don't have to live in the county where they're doing this work. And their role in the process is to not only hold the hearing, but also to sign the paperwork at other stages in the process. So, in this case, the person who signed the paperwork ordering Jimmy Sons, who I wrote about, to be taken into custody and held in jail, that person was the Special Master making that decision based on the facts that Jimmy's father had presented. 

Jesse: So the foundation of the civil commitment process in Mississippi is similar to most other states. Pretty much anyone can go to a Chancery Court and fill out an affidavit alleging that someone else needs to be detained for psychiatric evaluation. That affidavit is then reviewed by someone at the court and, if approved, someone from the sheriff's department is sent to pick up the person named in the affidavit and detain them for an evaluation. Those basic steps are similar to most other states. But what might be uniquely horrific about the process in Mississippi is that once that person is detained they are brought to a jail where they are processed, fingerprinted, a mugshot is taken, and they are locked in a jail cell for possibly days, possibly a week or more, waiting to be evaluated.

Michelle: In many previous episodes where we have done this, I feel like both Jim and I, when we're both in the room, we'll stress some of these things, like anyone can do this? Or is this someone with just any old credentials? Or could they even go to jail? And I feel like in most times, you have said, whoa, whoa, whoa, whoa, it actually is ever so slightly not as bad as what you just pitched. And this time, it feels like it's as bad, or in fact, actually worse, than the nightmare scenarios that Jim and I would normally catastrophize. 

Jesse: Correct. 

Michelle: Great, carry on! 

Jesse: So there's an allegation that this person is in need of some sort of mental health treatment. And the response to that allegation is to detain that person in a jail, where they are virtually guaranteed to be denied anything even resembling appropriate mental health treatment. And all of this is because someone at the Chancery Court determined that jail was the only reasonable option, which, to me, raises a lot of questions around how they are defining “reasonable”. And raises questions about discretion. Because generally speaking, members of law enforcement tend to have a lot of discretion around how they enforce specific legal codes. So my next question for Isabelle was how much discretion do sheriffs have in carrying out this civil commitment process? 

Isabelle Taft: Some sheriffs in the state believe that they have absolute discretion and they have been Involved in efforts in their counties to stop this practice. So there is a sheriff who took office in Warren County in the 1990s, which is near Jackson, but about 45 minutes away, and he told me that when he took office, he said, I'm not going to do this anymore. We have alternatives. We're going to stop this. And the county did stop this. I'm aware of a sheriff in another more rural county who did something similar. But other sheriffs feel that when they receive a court order telling them they have to hold someone in their jail, that they don't have any latitude. That they don't have the power to stop this, and that they can't just turn someone away, and that it's up to other actors within the system, whether that's the county boards of supervisors to fund alternatives, whether it's the chancery judges to stop sending people to jail, whether it's the state to fund additional alternatives, that other people are the ones who have to solve this, not them. 

Jesse: It seems like a lot of the discretion as it exists is in the chancellery special master area that, theoretically, if I read the law correctly, there should have been about four steps of decision making before someone reaches a point where they say there's no reasonable alternative to sending someone to jail. One of those alternatives is a crisis intervention team. Is it supposed to be that a crisis intervention team is supposed to be called by the special master before they send them to jail? Is that what's supposed to happen? 

Isabelle Taft: No, so In Mississippi, you're right, the CIT training and the legislation supporting that is new, but that process has really been kind of parallel to conversations about the civil commitment process. So there's nothing in the law, nor in any of the practice that I heard about when I was reporting that involves summoning CIT trained officers at any stage during this process. There's really not an integration of the crisis response programs that the state says it has been scaling up into the civil commitment process directly. So sometimes the deputies who do the pickups to detain people during this process do have that training, but they don't always have that training, they're not mandated to have that training. Another kind of acronym that contains the word crisis that is very much part of this process, the Crisis Stabilization Units, which the state has been expanding in recent years. Ideally, the way the process is supposed to function, people will be detained in those units and not in jail. But those are often full and they have a lot of discretion in terms of who they will admit. And law enforcement that I talked to were often pretty frustrated that the CSU would say, well, this person's, you know, too violent, we're not going to take them. And then that person would have to go to jail. 

Jesse: So it seems that the exact degree of discretion that law enforcement has in these situations has never really been clarified by legislators. But the CSUs, the Crisis Stabilization Units, exercise a significant amount of discretion in who they will, or will not, accept into their facilities as part of this process. And to me, it almost feels like a game of chicken between two different types of authority, with the person who has been alleged to have a mental health condition, and alleged to be in dire need of treatment, caught in the middle, going nowhere. 

Michelle: I mean it's a tricky situation as part of Committable, and it's also a tricky situation in I think abolition spaces as well, because on the one hand, you know, and this is the part I run into with abolition spaces. There's this gut instinct to just be like, remove the punitive jail portion of things, get them seen by crisis intervention units, get them into a hospital, get them into a service that is specifically for, you know, the mentally ill, and that's going to fix the problem. But we know that that's not going to fix the problem. And so, I don't know, it's all very strange because I'm almost finding myself falling into that trap while talking with you about Mississippi. Where like, my brain is like, yes, the Crisis Intervention Team, that's exactly what we need, that's the solution. But, while yes, removing the jails is a win, it's not what's still actually needed. Like, we still need all of those crisis, you know, representatives to also still see that person as human. Which going to a jail first is not helping. That's not helping any of those crisis individuals actually look at that person like a human being. The second they're put in jail, It doesn't matter why, it doesn't matter if it's a fluke of the system, they're going to see them coming from jail and that's already an additional ding against them on top of all of the millions of other dings against them. 

Jesse: Yeah, that's a really good point, that by building the option of jail into the process, they may have created a form of self perpetuating trap that no one really benefits from. And I still don't fully understand why this is being allowed to happen at all because the law seems to clearly state that the Special Master, or whoever it is that is in charge of this process from the Chancery Court, that person has a responsibility, a legally specified obligation, to make significant efforts to find an alternative to jail. But it appears that many of the people in this process, for whatever reason, view jail as the inevitable outcome. Which it very clearly should not be. So, I don't know, maybe I'm misreading the law? Maybe there is some legal nuance, or historical context that explains, you know, whatever it is that I might be missing?

Isabelle Taft: I don't think you're missing anything other than a couple kind of context facts. One of which is there is pretty limited state oversight of this process. So, there is no one checking to see whether the counties are actually doing each of these steps in a timely manner. There was up until this year when a law passed, which is going to require some of this data collection. There was no one asking the counties how frequently they were holding people in jail at any stage of this process. So there's just a basic lack of oversight and data collection around these practices. 

Another aspect of the law is that in some ways the language is pretty straightforward on time limits, but in other ways it is not. So, for example, the first step of the process is the pre evaluation at the community mental health center. The law does not say how quickly that has to happen. And so different community mental health centers around the state have different standards for how quickly they're supposed to do it. So based on documents that they submitted to the State Department of Mental Health, I know that some of them say we try to do these within 24 hours, but somebody could have been in the jail for 24 hours. Some of them say we do these within 48 hours, some of them provided no time frame to the state at all. So it's just sort of ambiguous really how quickly that's supposed to happen. And although the law does say those two examiners have to be appointed immediately, it also says if you can't find two doctors within 48 hours, you can do one doctor and someone else. But then it doesn't say, okay, you've missed that 48 hour deadline, now how much time do you have to bring them in? So I think there's just enough kind of confusion in the text of the law that it opens the door to some confusion at the county level and some kind of, you know, there's not always the sense of urgency that you would expect just from reading the plain language of the law.

Jesse: So, in theory, something is happening immediately, but if the facility that does the pre screening, which I'd assume would be like a community health center?

Isabelle Taft: Mm hmm. 

Jesse: If their policy is 48 hours, then you're being detained in jail before that first step, and if that first step doesn't happen, you can't go to the next step. And every time there's a delay, whether by policy or circumstances, you just keep accruing all of this time.

Isabelle Taft: Yeah. And the law doesn't say anything about business days or business hours, but it seems to often be interpreted that way. So if you get booked in on a Friday, regardless of what the law says, you're probably going to be waiting there over the weekend without an evaluation. 

Jesse: And people are being processed when they go to jail, they're being fingerprinted. Do you know if those records are being expunged or erased afterwards? Because I'm not familiar with any law that is specific about the conditions for fingerprinting, it just seems concerning to me that someone who wasn't accused of a crime would be fingerprinted and they would hold on to those records. 

Isabelle Taft: Yeah, I don't know the answer to that question. There is a law that was passed relatively recently saying that counties should not publish the mugshots of anyone detained for this reason, but I have heard of that happening as well, including in the last few years. And some counties said, well, we don't put folks going through this process on our jail docket because they're patients, we want to protect their privacy. Other counties obviously did not do that, and that's how we were able to get this tally. But I think, I mean, to me, it's really concerning to think about people's information being collected in this way, as if they're accused of a crime, but it's also very concerning to think about jails hiding the fact that they are detaining people without any criminal charge and no one being able to, you know, look at and see how long people are being held for, precisely what is recorded as their charge.

Jesse: Requiring the data collection would basically say, anyone involved in this process has to explain why they made, they have to file, I made this decision because, I made that decision because. 

Isabelle Taft: Yes. Which I, when I started this reporting, I was sort of stunned that that doesn't already exist, but you know, it'll be interesting to see what we learn now that it does exist.

Jesse: It is really difficult for me to understand what the intent behind a law like this is, because involuntary detention of any kind brings a risk of harm to the person being detained. So we as a society need to talk more about the harms caused by the civil commitment process, but with Mississippi, it feels like we can't yet really access that conversation because we are stuck on an even lower level of hell where the lines between civil and criminal aren't just being blurred, that distinction has been rendered virtually obsolete. And the people being detained are forced into that limbo and abandoned to the confusion. 

Michelle: Yeah, I mean it's like, it's the lesser of two evils kind of debate where, you know, there are tons of people who are like, well yeah, when you have two evils, pick the less one. And then there's a whole other category of people that's like, This is a stupid question, why are we asking it? If it's between two evils that's not a choice, this doesn't count, and fuck all of it. 

Jesse: I think if Committable ever starts merchandising, “Fuck all of it.” is probably the first thing we put on a t-shirt.

Michelle: Great.

Jesse: So as we bring this episode to a close, considering the weight of all the unnecessary and avoidable trauma that this process can cause, I asked Isabelle what she thinks it would take to clarify these laws, so that this civil commitment process no longer leads to jail. 

Isabelle Taft: I think there are a couple different things that could happen at the county level. One thing that I heard from a few counties is that they will not take someone into custody, they will not detain someone until they have scheduled an appointment for the pre evaluation for the two examinations by the appointed physicians and for the hearing. So all of that happens on the same day so that someone spends less time in police custody. And then because all of those have been scheduled in advance, the chancery clerk who is responsible for finding a bed for someone to wait in before they get admitted to a state hospital, that chancery clerk's office has had time to figure out an appropriate facility to hold that person if they are committed to a state hospital and have to wait. So that way you just reduce the amount of time someone's spending in custody while waiting, and then you make sure that there's a plan in place to keep them out of jail. Another thing that I think would address some of this is changes in practice by the Crisis Stabilization Unit. So less leeway for them to reject people. There are, you know, security enhancement measures that some of them have adopted in recent years, but I think it's an important question, why are they denying admission to so many people and what would it take to increase the admission rates so that people aren't getting rejected from a CSU and then sent to jail? More CSU beds would also help expansion beyond the capacity that the state currently has. And then I don't think this is something that every county would pursue, but some counties also have contracts with private psychiatric providers so that the county will pay for their residents to go to a hospital while they're going through this process if a public bed is not available.

Jesse: My understanding with a lot of the facilities used in this process, whether it's a hospital or a Crisis Stabilization Unit, is that they're all Department of Mental Health licensed. So they'll all have to be approved by the Department of Mental Health. Could the Department of Mental Health change their policies and simply say you have to accept someone in this process or else we will not license you? Would it be that simple? 

Isabelle Taft: That's a good question, I think the Department of Mental Health has recently begun making clear to the community mental health centers that run the CSUs that the rejection rate is a metric that they're paying attention to. I don't know sort of what the calculus would be as far as really, you know, playing hardball there, but definitely there is room for the state to collect data and then use that to kind of, you know, use their certification and funding mechanisms to apply pressure to other actors in the system. 

Jesse: Is there anything else I haven't asked about relating to this that you think is important to know?

Isabelle Taft: I guess the one thing that really stood out to me in this reporting is how constant this issue has been in Mississippi for decades. We found newspaper articles going back to the 1980s where sheriffs were saying we're not equipped to deal with this. We're tired of holding people with no criminal charges for weeks and weeks while they wait for a state hospital bed. This is unacceptable. We need to do something. Many of those quotes with very few changes kind of appear in the 90s, in the early 2000s, in the 2010s, I heard it when I was reporting this year. And when people died in jails while being held for this reason, sheriffs quoted in articles about that would say, you know, very much the same thing. This shows that we really are not equipped to handle this, you know, we wish we didn't have to do this. Someone please fix this. So I just have been really kind of disturbed by how little has changed over the last four decades in the state.

Jesse: Yeah, if it happened for the first time you could understand it was an accident, or that it was a newly discovered flaw in the system or whatever, but if you're saying three to four decades? There's really no explanation for why that hasn't been fixed. 

Isabelle Taft: Yeah, and I think part of it is that there was not much data collection, so sheriffs would say, Oh, this is a big problem that we're seeing, but nobody really knew exactly how common it was around the state. And I think a lot of the reporting has not centered the perspectives of people who have gone through it and has not talked about their experiences in jail and how it affected them and their families to go through this process and then wind up getting put in jail with no criminal charges and waiting there for, you know, an undetermined amount of time. When you're in there you don't know how long you're going to be there because you have no bond. And the only way out is when a bed becomes available. So, I'm hopeful that more reporting will maybe create some energy for change around this because it's something that everybody recognizes is a problem, but you know, as you said, that sort of begs the question of why it hasn't been addressed before in a really meaningful way.

Jesse: So, Michelle, any final thoughts on mental health laws in Mississippi? 

Michelle: Well, it's an additional state I don't want to go to now. 

Jesse: And speaking of states with really concerning mental health laws that make us Reconsider where we travel, next time on Committable we'll be talking about mental health laws in California.

Michelle: Looking forward to it? I guess?

Jesse: Yes, fresh new layers of commitment hell. 

Michelle:Oh Dante, if only you had known!

Jesse: (laughter)

Jesse: Committable is produced by Jim McQuaid, Michelle Stockman and me, Jesse Mangan. All music is from the song Reasonable by Christopher G. Brown. 

S3: Indiana

 Melissa Keyes: So we've gotten so used to that institutional model of, let's create this divide between the public and folks who act erratically, or who due to their condition behave in a certain way that we find different or disturbing, but we're dressing it up in the trappings of access to treatment. Be honest and call it what it is, we don't know what to do with you so we're going to remove you from society. I can deal with that. I can respond to that. What is problematic is when you start to equate treatment with detention and hospitalization. If I leave a hospital AMA, Against Medical Advice, a police officer does not show up and take me back to that hospital. That's not the same for mental health. And until we acknowledge that and have a conversation about the biases that are inherent in that it's going to continue to be that way. 

Jesse: This is Committable, a podcast about involuntary commitments. I'm Jesse Mangan, and in this podcast we spend a lot of time focusing on mental health laws and the systems created around those laws. Practices and processes that revolve around the state granting select groups of professionals the authority to detain and restrain based on little more than suspicion. And underlying all of those conversations is the essential question of what does it feel like to be forced into one of those systems? 

Jill Edwards: It's like being wrapped in barbed wire and the more you struggle, the deeper, you know, the barbs go into your skin, the more powerless you become.

Jesse: This is Jill Edwards. 

Jill Edwards: Well, my name is Jill Edwards, and I'm not currently working right now. I recently withdrew from grad school due to impairments and medical problems and symptoms from my injury from electroconvulsive therapy. That was, well, a little over 20 years ago. So right now I'm not working, but I had been working on a graduate degree in clinical mental health counseling. I have an undergraduate degree in Youth Adult and Family Services with a minor in Psychology. I do advocacy work on the side, not paid or anything, it's just a passion because I've been so harmed by the system. And because I have both education and work experience and personal experience in the system, I kind of know the ins and out and I feel like I'm in a really good position to understand the issues with the system. And, you know, my own experience and my anger about it. I view it as a justified anger, seeing the injustices, seeing how many people are being hurt. I feel like I'm in the best position to try to advocate for change.

Jesse: What was your first involvement with the system? 

Jill Edwards: I'd had a lot of childhood trauma. I was being sexually abused by church leaders on a weekly basis in the sanctuary during a lights out prayer service, I'd been raped multiple times. There was just a lot of things that happened in my childhood and I was very, um, fundamentalist religion, a lot of indoctrination about women's roles. And so I get into my adult life and I just kind of, you know, had a lot of identity issues. I had a lot of trauma to deal with and struggling with an eating disorder and anxiety and depression. And basically got to the point I, um, was living on my own as a teenager, trying to support myself, trying to pay for college, trying to go to college, just feeling really overwhelmed. And I got to the point where I was suicidal and my boyfriend, who's now my husband, took me for like an evaluation in the night, like to an emergency clinic. I go in, you know, they talked to me a little bit and they're like, Hey, you know, we can't let you go. You're a danger to yourself. We can't let you go. And I'm like, well, I don't have money. I don't have insurance. You know, I'm working at fast food, I don't have an insurance plan. And at that point they're like, Oh, here, sign this paper stating you won't hurt yourself and you can go. And I know that paper had nothing to do with protecting me, and it had everything to do with covering their asses, and in a way I'm kind of glad it happened that way, because it would have introduced me to the system at an even younger age, before I had much of a solid foundation of support from family.

So my formal introduction into it was later, after I was married, you know, still struggling with a lot of emotional issues. Not really understanding how it was related to my childhood. I just knew that I hurt. I struggled. You know, I was anxious, why was I sad? You know, I didn't understand all of it. So you reach out for help and I had been on various different antidepressants from my GP, but nothing was really helping. It seemed like, you know, it was getting worse. You get referred to a psychiatrist, next thing you know you're labeled with a chemical imbalance. They're throwing drugs at you left and right. You just start spiraling. You start getting worse.  And I made a suicide attempt. And looking back I really think a lot of it was related to the effects of the medicine, just this intense dysphoria. Strange thoughts and emotions that were very different in nature from what I was experiencing when I came for help. And I think it was sort of like a chemically altered state of mind, you know, but I didn't understand it. The doctors keep saying, Oh, your illness is progressing. You're getting worse. You're getting worse anyway.  So I'm kind of, I think I'd had some hospitalizations, attempted suicide by overdosing, obviously that didn't work. That psychiatrist that I met while I was in the ER, of course I don't remember that, but he later said, Hey, you know, we've kind of tried a bunch of different drugs. Your depression isn't responding. Basically said, I think we should do ECT.  I was kind of scared, talked to my husband too. My husband's like, you know, this is the best thing and the doctor's like, hey, you know, the meds aren't working. Yeah, this is the best thing for her. I signed myself in, you know, I mean, I was kind of reluctant, but I signed myself in. I was kind of desperate to, you know, let's make this pain stop. This is the professional. They're saying this is going to help me. Signed the consents, but shortly after treatment started I just, something inside me said, this is not right. This is not what you need. And I started fighting against the treatment saying, no, you know, I want to stop this. I want to stop this. And it just became this constant pressure and this coercion and the threats. And kind of to jump back,  I do distinctly remember begging them for a phone book, begging for an attorney. I was scared to death. And I was signed in and I signed consents for treatment but I didn't know if I could leave. I mean, they were making it appear that I wasn't allowed to leave.  

So after my second leave of absence I came back, I refused to remove my clothing for the strip search, which, you know, as a sexual assault and abuse survivor it's very degrading. I mean, it's very traumatizing to have to strip your clothing off, you know, with a few people in the room and then watching you and looking through all your clothing and but anyway. At that point I was just like, look, I'm done. I'm going home. I'm stopping this treatment. I'm not taking off my clothes. I'm done. I'm out of here. And, you know, so I've gotten part of my records and I saw that my decision to stop ECT triggered them to petition for an emergency detention.  Now, even though I went in and I was depressed and anxious, they clearly charted throughout it denies homicidality, denies suicidality. I had been doing some surface cutting while I was in the hospital, but my understanding under Indiana law is that would not qualify as a valid reason to detain someone against their will. So they said in the chart that they didn't follow through with the court order because the patient eventually complied with treatment. So it was all about treatment compliance. It wasn't, we think she's a danger to herself, you know, she's acting irrational. She's talking about suicide, she’s talking about hurting someone, it was nothing like that. It all came down to I wasn't complying with treatment. They were going to use the court to force it, and they had even said in their notes I had good insight. But they were misinterpreting all my reactions.

So basically, sorry, I kind of jump around a bit. When I decided I'm done, I'm going home, I’m done with this treatment. A bunch of people came in a room, you know, and I don't remember exactly what happened but I knew I wasn't getting out of there without getting shocked again. Like, I just knew it, and I don't remember if they specifically said they were going to get a court order, but I know I definitely felt threatened, and I felt coerced, and I knew I was powerless in that situation. And of course, you know, they followed through, and I left the hospital completely traumatized. Just broken in spirit and, you know, I've been living with a brain injury and still dealing with the aftermath of that trauma for decades.

Jesse: Electroconvulsive therapy, or ECT, is a controversial process that uses electricity administered through different combinations of voltage, current, and duration in order to intentionally induce a seizure. The research into ECT is complicated and passionately contested from many different perspectives, but I don't think there is any reasonable dispute that the use of ECT involves a risk of memory loss and injury to the brain. And because those risks are so significant, I don't think ECT should ever be administered involuntarily. But if someone were truly, properly informed about the potential risks then I think everyone should be supported and empowered to choose which options are right for them. But in psychiatric facilities, the line between voluntary and involuntary is often blurry. At times, that line is outright obscured. So my next question for Jill was, during these hospitalizations, was she ever formally classified as involuntary? 

Jill Edwards: It's spotty, you know, because when you have ECT your memory is spotty, so I remember bits and pieces. So I think part of it is the environment itself is a threat. You see people get tackled. You know, they say, do this, you don't obey, they get tackled and get injected. There was a chair sitting in the hallway that literally looked like an old electrocution chair, like a solid dark wood chair with all these thick leather straps on like every part of your body. Really looked like an old electrocution chair. So the whole environment is a threat, an unspoken threat, but then there are definitely spoken threats, you know, take this or you can't leave, take this medicine or you can't leave. There is talk of, you know, because I've had several hospitalizations, so it's just common, it's do this or else, it's not, Jill, what do you need in this situation? What do you think the issue is? What do you need? How can we help you right now? How can we best support you through the struggle you're going through? It's all about, we know what's best for you. We're going to use whatever's in our power to ensure that we can, you know, basically force this upon you. I don't know if I answered your question exactly. 

Jesse: No, I think you're identifying something really important, which is that it is not a neutral environment, it is not a neutral situation. That it has to be understood by clinicians that when they say do this or else, it's not a conversation. 

Jill Edwards: No. 

Jesse: And this power dynamic results in you having your concerns, your desire to want to leave just sort of railroaded.

Jill Edwards: Not only railroaded, but pathologized.  That's your illness talking. Your illness is telling you this treatment is hurting you. Your illness is telling you that this isn't helping you. So, yeah, I mean, that's a huge component of it, and part of it is they are controlling the environment, they're controlling the narrative, they're controlling what goes in the charts and what doesn't. Every reaction, everything you do, you say, it's all in their interpretation. And since we don't have access to the records, and we can't say, hey, you know, you wrote this down completely wrong, that wasn't what I said, that isn't what happened. It doesn't matter, the doctor's opinion takes precedence. You know, and so when I was expressing frustration, like after basically I realized I was going to be, you know, detained and shocked against my will. I kept expressing frustration to the doctors and this is in the notes, you know, that I was saying, hey, do you like the power you have over innocent people? Like, does this make you feel good? And I was calling them out on their abuse of power, and they interpreted it as, you know, that I was having paranoid delusions, I was feeling paranoid. And that they interpreted it as psychosis. And to me, it was a valid reaction to that situation, to their abuse of power. It was a very valid reaction for any person in that situation where they're being detained and somebody's doing something horrible to their body and they won't allow them to access an attorney, or an advocate. To me, it was valid, but they had the power to control the narrative and pathologize my reaction to, and really to reinforce their own power. So them taking my valid reaction and turning it into something pathological, reinforced their power to force treat me. Does that make sense? It's sort of this endless loop. It's like being wrapped in barbed wire and the more you struggle the deeper, you know, the barbs go into your skin, the more powerless you become. 

Jesse: The impact of these types of hospitalizations, the impact of this type of coercion, can be unpredictable. For some, the experiences can be manageable, even viewed as part of a positive transitional phase in their life. For others, these experiences can be debilitating. They can be devastating. So I asked Jill, in what ways have these experiences impacted her life? 

Jill Edwards: It's basically altered the course of my life in every way, both physically, mentally, emotionally, how I see the world, how I react to the world. I'm terrified of doctors, of going to hospitals, of medical procedures, of having it happen to me again. I know the laws surrounding ECT, and this can be done to me again. You know, I live with the effects of brain and electrical injury. Fortunately, after over 20 years of looking for answers on all these physical problems I've developed. I’m researching, going from doctor to doctor, trying to figure out what all these physical and neurological problems I was having. Had tons of testing, you know, and things were showing, but nobody really understood the root of my symptoms. And I started saying, now wait a minute, these are all neurological. And I did have a bunch of electricity pulse through my body and gosh, I didn't seem to have these problems before then. And, um, I ended up going, well, first of all, trying to get brain injury treatment centers, brain injury specialists to see me to do an evaluation and, oh yeah sure let’s get you signed up. Now what was the nature of your injury? I said, well, it's from electroconvulsive therapy. Sorry, we can't help you “click”. You know, and I'm literally calling clinic after clinic, doctor after doctor trying to get somebody to help me and they're either like, well, ECT doesn't cause injury, or we can't help you. And finally found a clinic out of state and I did an eval and they said, you know, you have classic brain injury symptoms. And I went in and I had a specialized brain scan and a bunch of other brain injury assessments and yeah, I had a profound brain injury. My biggest fear when I went there was that they were going to say your brain is normal. That there's nothing wrong and that it would come back to, Oh Jill, it was all in your head. Just like the doctor said. It was just your depression that was causing all the memory, and all the issues. And when I saw the scan and saw what a profound brain injury had, I cried tears of joy because I had validation of what they'd done to me and now I understood why life was so hard. Why cognitive tasks were so hard for me. Why daily functioning was so hard for me, so it was like tears of joy. I mean, that sounds odd to be  thrilled that you find out you have a brain injury, but it was an answer. It answered why I had lost so many abilities and so many things over the years and why I had struggled so much. So to have that injustice and that injury validated was profound for me. 

Jesse: In recent years, Jill has been involved in advocacy work. She has spoken at state congressional hearings, including in Indiana, where she spoke in opposition to HB 1006. A bill that has since been signed into law and significantly alters that state's commitment process. And for me, whenever I review mental health laws, there is a looming sense of dread crawling up the back of my mind. A fear of what I might find and of what this law might say about people like me. To process that fear, I try to focus on understanding the law, on untangling semantic complexities in the hope that I might be able to fully unravel this legal tapestry and figure out which threads I need to avoid. And looking at this new law in Indiana was no different. So to better understand HB 1006, to better untangle this tapestry, I spoke with Melissa Keyes.

Melissa Keyes: My name is Melissa Keyes. I'm the Executive Director for Indiana Disability Rights. We are the state's protection and advocacy organization. I have a master's in clinical psychology, and a law degree. I also have ADHD. 

Jesse: Every mental health law in every state has some form of initial detention for evaluation process. So I asked Melissa, in Indiana how does that detention for evaluation process work? And in what ways has this new law changed that process? 

Melissa Keyes: The initial process can really start with any avenue that somebody might seek treatment. Whether you're going somewhere voluntarily, whether a concerned family member or friend might seek out treatment on your behalf. Law enforcement as part of this bill can detain somebody if they, you know, have reason to believe that they are in need of mental health treatment. And so one of the things that this new law changed was kind of that definition of who qualifies. Historically, it's been a person with a mental illness and either dangerous or gravely disabled and in need of treatment. For the purposes of this new change in the law that just went into effect, there was an amendment made to the definition of mental illness. To add in, just for the purposes of the emergency detention piece, temporary impairment as a result of alcohol or drug use. That's really kind of been a significant shift in this new law. So again, really there's multiple entry points. It could be seeking out treatment yourself, having somebody seek out treatment on your behalf, calls from law enforcement, a provider can initiate, a court can initiate. There's really a number of ways that somebody could get introduced into this system.

Jesse: So, my understanding of the previous law was that if someone is brought to a psych facility for that detention for evaluation phase, there was previously a probable cause type of hearing that would take place within a few days. But that seems to have been removed. So now, however you get there, once you reach a psych facility where you're being detained for evaluation, what happens?

Melissa Keyes: So the preliminary hearing under the new law has gone away, and so when somebody comes to a facility and the facility says, Hey, we think you are in need of treatment. The facility within the first 48 hours is required to submit an application to the court stating that they have probable cause believing that you are in need of treatment. Submitting that application raises that number to 72 hours. So once that application is filed, then the court either agrees and sets it for a hearing within 14 days, or the court denies and the person has to be released within that 72 hour period. Historically, it used to be a 10 day period that was expanded to 14 days. And so there's a little bit of an extra added time that a facility can detain the person. The process now really streamlines, for lack of a better word, that initial period of getting the court's approval to be able to continue to hold somebody.

Jesse: To clarify, whether we're talking about 48, 72, or 10 days, those are business days, not counting weekends and holidays, is that right? 

Melissa Keyes: Correct. 

Jesse: So someone's in the facility within the 48 hours, first 48 hours they're there. The facility has to decide whether or not to take this further. If they decide to take it further, they submit an application to a court and there's a 24 hour period where the court has to respond to that, essentially. 

Melissa Keyes: Right, merely submitting that gives them up to 72 hours. So if they don't submit it within 48, the person can be discharged. 

Jesse: In almost every episode of this podcast, we inevitably ask some version of the question, do weekends and holidays count? This question can be essential to understanding the practical realities of the process because in Indiana, under this new law, a person can be detained for up to 14 business days without ever actually getting the opportunity to appear at a hearing. Without ever getting a chance to explain their situation to the court. So my next question for Melissa was, if this 14 day detention does not include weekends or holidays, does that mean that the person is actually being detained without a hearing for up to, at the very least, 18 days?

Melissa Keyes: Correct. And in fact, we kind of were playing around with that magical holiday time where there's a lot of family drama and conflict between Thanksgiving and the Christmas holiday where, depending on where you fell, it could be almost a month, really. That 14 days based on, you know, holidays and weekends and things like that. And so, yeah, the other interesting language and something that hasn't really been clarified is that timing starts from admission to the facility. And so trying to really figure out what admission to the facility means because if you go to an emergency room, is that when you're considered admitted? Or is it the actual admitting process where the hospital says, Hey, we are admitting you to this facility, because that can be different. You can stay in an emergency room for hours, depending on where you are, and so where does that time clock start? There's that provision in our law that says that if a patient is admitted to a facility after midnight, but before 8 a. m, the time period begins to run at 8 a. m. that following day. And so that's something that I think would do well to be clarified as to what they mean by admission. Is it when you walk in the door? Is it when they put your name in the system? Or is it when they actually say, Hey, we're gonna admit you for treatment?  

The other change that happened in that process is that the information provided to the court in that initial report, it used to be called a report, but that initial what's now being called an application used to vary county by county. And now court services have established a standardized form, so all facilities are supposed to use kind of the same form. That is supposed to help create some consistency across the different courts in what they are reviewing. It's taken that pre hearing and distilled it down to this checkbox application. In an effort to streamline we have lost the individuality of being able to get that information to the court and that to me as an advocate is one of the most troublesome aspects of this, is just the one sidedness of this whole process. All of the power, all of the authority rests with the facility. And I'm not trying to impute any ill will on facilities in general, right? But you have a facility where they are the arbiters of whether or not you need treatment. They are the arbiters of whether or not there is probable cause that you are a danger to yourself or gravely disabled. And the information that the court gets at that initial application is so one sided. And then you have this up to 14 day period, and the person who may want to challenge the sufficiency of the evidence used to make that determination or challenge whether or not a full civil commitment is appropriate, they are so far behind the eight ball at that point, with their ability to connect to counsel, with their ability to gather evidence and information, or seek out witnesses that could testify on their behalf. It is such a David and Goliath at that point, because you're talking about the process of detaining somebody who hasn't committed a crime, who hasn't done anything other than need help for a medical condition. And that to me just really, we should be erring on the side of protecting somebody's rights over streamlining a process to get them access to treatment. There's always got to be that balancing and it's got to be that individualized real examination of it. 

Jesse: It is important to remember that at this point in the process, any allegation that a person is mentally ill, or a danger to themselves, or temporarily impaired by substances, any claim like that at this point in the process has yet to be proven at a hearing. So when that application is reviewed by the court, it should be viewed as a series of allegations that only represent one perspective on the situation. But with this new law, simply submitting those allegations is all that is required to authorize over two weeks of involuntary detention, which is particularly concerning because if that application is approved it can include authorization from the court allowing the facility to implement a treatment plan. And there are a myriad of potential entirely justifiable reasons why it might be a matter of self preservation for a person to refuse to participate in a treatment plan. So exactly how far can the facility go to implement that plan? Does this new law place any clearly defined limitations on the scope of that authority?

Melissa Keyes: There does not appear to be other than there's language in the form the facility is allowed to begin a treatment plan using clinically acceptable standards of care. And the court as part of its review of the application can order continuing that continuing treatment. The unfortunate thing is the application that the facility uses now, that standardized application, really doesn't give a whole lot of room for detail and it's unclear at this point what information a court's going to get in this application to be able to make that determination. Now, that's not to say that as part of that 14 day hearing that somebody couldn't challenge the treatment plan, but there isn't anything that allows that process to happen before the treatment plan is started, before it's initiated.

Jesse: I guess one of the things I'm trying to figure out about these changes is It doesn't seem like there's very clear guidance for the facility about what they can and can't force. And when we're talking about force that might involve heavy coercion, or that might involve being physically restrained and injected with something. So is there anything in these changes to the law that specifically spell out what sort of guardrails are in place before that commitment hearing? Which is supposed to be your legal check. It's supposed to be the judicial check to make sure that all of this is supposed to happen. Are there clear guardrails during that 14 day period?

Melissa Keyes: No, other than that it's gotta be using accepted clinical care guidelines, but there's no limitation on medication, or therapy, or treatment plan that is expressly stated in the statute. 

Jesse: During the times when I was detained inpatient it was deemed clinically acceptable to tell patients that there would be repercussions if they consumed any amount of caffeine, but perfectly fine iIf they wanted to smoke cigarettes. It was deemed clinically acceptable to confine a patient to a wheelchair and make them watch as their feces was strained and collected from a toilet. And it was clinically acceptable to tell a group of patients with eating disorders to sit in a circle and watch as one of them would be forced to eat a cookie. They were all then, as part of their treatment, forbidden from talking about it. 

Clinically acceptable practices can be bizarre, they can be counterproductive, and far too often, like with forced medication and ECT, they can be dangerous. So I can understand why this term, clinically acceptable, might provide legislators with confidence that this process will involve rigorously tested methods of treatment that have proven therapeutic value. I can understand why this term might make people feel like this process is going to be safe. But there is a frighteningly broad range of trauma within the scope of clinically acceptable. And all of this is before that person gets a hearing but after that 14, actually more like 18, days of involuntary detention, there is supposed to be a civil commitment hearing. So my next question for Melissa was, what happens at that civil commitment hearing? 

Melissa Keyes: So it's supposed to function as a fairly standard hearing. The person is entitled to representation. If they can't afford representation the court is able to appoint a public defender in this case. They are allowed to bring witnesses, give testimony,  kind of the whole trappings of what you would think of in a typical court scenario. The issue becomes, from a practical perspective, outside of our large metropolitan areas where we do have more of a deeper bench of attorneys available. If you think about that 14 day period and first off how the person is going to be able to proactively access counsel, if they don't have somebody able to help facilitate meetings or connecting with an attorney. And then the time that it might take to get that attorney on board and able to review materials and evaluations, or seek out witnesses, or whomever on their own. You can see that there's kind of a lopsided ability. And that's nothing to say, our public defenders are tremendous. They do the best they can with the resources that they have. But it's, you know, starting the race two miles back. 

Jesse: Those are all of my questions. Is there anything I haven't asked about relating to these changes that you think is important to know? 

Melissa Keyes: So, you know, one of the things that we're really trying to do is to help make this law better. I mean, we recognize that we're not going to be able to get rid of this type of process altogether. And so what can we do to help make sure that the process is respectful of people's dignity and rights? And that it supports policies of self determination and least restrictive options. You know, when we talk about the timeline that folks are held, previously it was 10 days, it was expanded to 14 days. However, previously when it was 10 days and there was this initial hearing, that gave a little bit better protection to make sure that somebody's rights were being protected earlier in the process. And so with the removal of really any information from the person themselves in that process until that 14 day hearing happens, that to me is, I think, where one of the concerns comes from. It's not necessarily the addition of four extra days, it's the inability of the person to raise issues, raise alarm, have an independent note taken of what's happening until that 14 day hearing happens. And a lot can happen in 14 days. People can lose their houses, their jobs, they have kids to take care of, and pets, and all kinds of things that can happen. And when the court only gets one side of the story and limited information from that one side of the story, and the court does not have the training or expertise to be able to make a decision as to whether or not that is accurate. I mean, that to me is kind of where the crux of the problem is, that in the absence of being able to look at that whole picture where you're just getting information from the facility, you're not getting information from the person about, um, what do I have in my psychiatric advanced directive? If I have one. Who do I have as my support system that, Hey, maybe once I get access to my medication that ran out In a couple days, I'm golden. Or hey, if you detain me, I'm going to lose my house, my job, my kids, and that's going to throw things into an even bigger tailspin. Without the court having that information and only getting very limited information from the facility, it strikes me as a real disservice to that court oversight piece that's supposed to be there. So we've gotten so used to that institutional model of, let's create this divide between, you know, the public and folks who act erratically, or who due to their condition behave in a certain way that we find different or disturbing. And we're still focused on that, but we're dressing it up in the trappings of access to treatment. And I think that does a real disservice because a lot of the mechanisms that happen in that process are not very therapeutic. And can even be more traumatizing. And so I think until we start flipping the conversation and the perspective towards that focus on treatment and access to treatment, we're really not going to make a whole lot of change.

Jesse: I mean, that gets to one of the underlying, uh, it's not even a secret, really, it's just one of the underlying realities about it. An involuntary hospitalization, whether it's initial detention or whether it's a civil commitment, that decision says more about the emotional state of the clinician and the judge. I'm not saying that in a disparaging way, I'm not saying that they're unreasonable, but it says more about their state of mind than it does about the person. Because of that fear. Because the default is, well, it's easier, I know where you're going to be, and I know you're going to be watched. That decision is easier for me to make, because I'm not going to be worried about you going out there and doing something. I get that, but we need to acknowledge that is about you, that is not about me. I need you to own that side of it.

Melissa Keyes: Yeah. It's like what I said earlier, just be honest and call it what it is, we don't know what to do with you so we're going to remove you from society. I can deal with that. I can respond to that. What is problematic is when you start to equate treatment, this is how we're going to access treatment, oh, we're going to give you treatment. When you start to conflate that with detention and hospitalization, that's when I start to have the problem because it's not meaningful then. Because if it were really about access to treatment you would make sure that I had access to the full spectrum of treatment that might be available. And that me as a self determined individual in consultation with my treating team, we decide what's best and what's, you know, the proper course of action. But you're saying, oh, this person needs treatment. Here you go. This is the magical treatment access place that happens to be a detention place that you can't leave. If I leave a hospital, AMA, Against Medical Advice, a police officer does not show up and take me back to that hospital. That's not the same for mental health. And until we acknowledge that and have a conversation about the biases that are inherent in that, it's going to continue to be that way. 

Jesse: Right now, throughout the United States, there are ongoing legislative efforts focused on expanding commitment laws. Focused on making it easier to force someone into that process. And when I see policymakers discussing these expansions it feels to me like someone in a position of authority is looking me straight in the eyes as they slowly unravel more barbed wire. I don't know how to feel safe with these laws. I don't know how to convince legislators that the people being detained matter, that their time matters, their voices matter. I don't know how to feel safe with these laws, I just know that I need to understand. I need to know how to avoid these systems because I don't know if I survive being committed again. And so, we continue to investigate, state by state, all of these ever expanding systems of commitment. And next time, on Committable, we'll be looking at mental health laws in Mississippi. 

Jesse: Committable is produced by Jim McQuaid. Michelle Stockman and me, Jesse Mangan. All music is from the song Reasonable by Christopher G. Brown. 

S3: Episode 22: Vermont

Jesse:  Jim, what is labeling theory? 

Jim: So, labeling theory is a theory that comes out of criminology but, you know, it has certainly broader applications beyond that. But so labeling theory is a theory that argues once someone commits an act of what is within the theory referred to as primary deviance. So some kind of violation of social norms or the person is seen to have violated social norms. So it might be committing a crime, it might be acting weirdly, or breaking a rule at school. And the person receives a label. And you know, when I teach this, I talk about cheating in a class, so a person is labeled a cheater. And then that label, the argument is that the person is then more likely to engage in what's called secondary deviance, which is deviance that comes as a result of the label. And that process can occur in a couple different ways. So one, the person's actions or behaviors are going to be more closely scrutinized or interpreted in deviant ways. So imagine two kids, both of whom plagiarize on a paper. Well, the kid who hasn't been labeled, the teacher's going to read the paper and not even be looking for plagiarism. So they're not going to find it. Or if they find evidence of plagiarism, they might think to themselves, Oh, well, this is just a good kid who made a mistake, like they screwed up the citations or something. You know, I'm sure they did it unintentionally. But the kid who has been labeled a cheater the plagiarism is like, oh, clearly this kid is already a cheater. Clearly they are cheating and this is just more evidence of that. So then they get penalized again, whether or not it was unintentional or intentional doesn't matter, the action is being interpreted as cheating. 

The other way that this kind of secondary deviance can occur is If the person internalizes the label. So there's this kind of external, other people are interpreting the labeled person's actions in terms of the label, but also the person can, and both can happen, they internalize it. I'm a cheater, I'm a bad kid, I'm a bad student, I'm not capable, I'm bad, whatever. It becomes this kind of internalized, self fulfilling prophecy where they just kind of act in accordance with the label itself. You know, I'm, I'm too stupid. Everyone expects me to be bad, so I'm going to do that. And so then they start to cheat more regularly. 

I don't know if you expected this detailed of an answer. Like, I teach labeling theory pretty regularly. Like, I will go into it. 

Jesse: This is actually way more interesting than I thought it would be. 

Jim: Oh, okay. 

Jesse: I can easily see how this would apply to people labeled with mental health conditions. But I was actually just trying to set up the intro where I would ask you about labeling theory and then say, and what would you label this podcast?

Jim: Oh! 

Jesse: Right. 

Jim: Committable! 

Jesse: Awesome! And now let's label some mental health laws. 

Jesse: This is Committable, a podcast about involuntary commitments. I'm Jesse Mangan, and I'm here with Committable producer Jim McQuaid. 

Jim: Oh, I'm supposed to say something. 

Jesse: Correct. 

Jim: I'm Jim McQuaid. 

Jesse: (laughter)

Jim: Well, okay, it's weird for you to say, like, “I'm here with Jim McQuaid”. Like, I've been announced. I agree with you that I am here.

Jesse: And I'm glad you're here, Jim, because for this episode, we are talking about mental health laws in Vermont. And to learn more about those laws I spoke with Karen Barber. 

Karen Barber: So my name is Karen Barber and I am general counsel for the Vermont Department of Mental Health. So we have four assistant attorney generals assigned to our department who do the actual litigation involved with involuntary commitments and I am more just in house and the general counsel that oversees all of the legal work for the department.

Jesse: In Vermont, what is the mental health law called? 

Karen Barber: Title 18. So it's Title 18 of the Vermont statutes is where you will find our civil commitment code. 

Jesse: Most civil commitments are preceded by some form of involuntary detention. In Vermont, how does the involuntary detention process work? 

Karen Barber: So, if you're coming in through the civil system, as opposed to the criminal system, I'll start there. So there's a couple different ways you could be brought to an ED, or you could show up to an ED, or someone could bring you to an ED, an Emergency Department. And what we call it is the EE process, the Emergency Exam process. So we have in Vermont, there's a system of community based providers called Designated Agencies and they are the people in the community that provide mental health services. DMH, Department of Mental Health, trains what we call the QMHPs, or Qualified Mental Health Providers. And so these are staff at the Designated Agency who are trained by DMH in Title 18. And they would come out to the hospital and do the first assessment of a person. So what they're looking at is, does the person meet the statutory criteria for involuntary hospitalization, which is basically a danger to self or others due to a mental illness.mSo if the screener says, yes, I think this person meets the criteria, they are allowed to be held. After that, they must be seen by a physician, or it could be an APRN, who does the same analysis, who has to decide, yes, they meet criteria. And if they do, then they continue to be held. If that person says, no, they don't meet criteria, then they must be released, or they can choose to be voluntary if they wish. And if at any point they say, look, we're willing to voluntarily accept services, they can't be held involuntarily. 

If the physician says, yes, you meet criteria. That's what we call the First Cert. So there's the EE, the First Cert, first certification, then within 24 hours they must be seen by a psychiatrist. And a psychiatrist must do the same evaluation, do they meet the statutory criteria? So that's called the Second Cert, second certification. If the psychiatrist says yes, they meet criteria. Then they continue on that hold, and the Department of Mental Health has 72 hours to file what's known as an Application for Involuntary Treatment. And so that's basically what we're filing with the court to say, we believe this person needs to be involuntarily hospitalized. At that point, the judge must do a paper review. So look at the documentation and determine, yes, I agree that all of these things continue to support the fact that this person should be involuntarily held. At the same time, once we file that paperwork, Legal Aid, the Vermont Legal Aid Mental Health Law Project, gets notified and they are assigned counsel for this person. So the person, as soon as we file that, will have an attorney that can help represent their needs. They're also, as soon as they're involuntarily held, they're given a notice of patient rights, which basically talks about their rights as a patient. And in Vermont we also have Disability Rights Vermont is our mental health care ombudsman, and so they are also active. So on the piece of paper that the person gets is a phone number for Disability Rights Vermont, and they must assure that if they want to speak to someone, there's a way for them to do it. And then the person will wait in the Emergency Department until we find a bed. 

In Vermont, we have seven designated hospitals. So those are hospitals with inpatient psychiatric units that have been designated by the Department of Mental Health to provide involuntary services. One of those is the Veterans Hospital, so those beds are obviously only available to veterans, but, so they would go to one of those hospitals. During this time, their court hearing would proceed. So Legal Aid generally asks for an independent psychiatric evaluation, so generally they have an independent psychiatrist evaluate the person to determine whether or not they think that the person actually does meet criteria. 

Jesse: So in Vermont…

Jim: Sorry, I'm getting lost in the terminology here. So, is the person brought to the hospital and then the screener sees them, and then the hospital? Or then the physician? Or is it the screener goes to the person in the community and says they should be hospitalized and then they're brought to the hospital? 

Jesse: Great questions. Let's take a step back. 

Jim: Okay.

Jesse: So in Vermont, there are Designated Agencies, those are essentially locations within a community that offer a fairly wide range of mental health services. 

Jim: Which is good. 

Jesse: Those designated agencies have Qualified Mental Health Professionals, or QMHP,  people that are approved by the Department of Mental Health to do what essentially amounts to risk assessments. So if a QMHP determines that the person being assessed meets the criteria for involuntary hospitalization, that person must then be examined by a physician. And if that physician also believes that this person meets the criteria for involuntary hospitalization, then that is what is called the first certification, or First Cert. And that initiates the next phase of the process, which is an evaluation by a psychiatrist that has to be completed within 24 hours of the first certification. That psychiatrist can then issue the second certification, or Second Cert, which will lead to that person being detained in a psychiatric facility for up to 72 hours.

Jim: Being committed, okay, got it. 

Jesse: Far too often though, there can be a significant limbo period between the second certification and the person actually arriving at a facility where the 72 hour hold starts. And this limbo period can sometimes last several days. But once that second certification is signed by a psychiatrist and the person is in a facility, the facility has 72 hours, or three business days, to decide whether or not to initiate an Application for Involuntary Treatment, or AIT. And if an AIT is initiated, then the person being detained should automatically be appointed legal representation from Vermont Legal Aid. And to learn more about this part of the process, I spoke with Jack McCullough. 

Jack McCullough: Okay, my name's Jack McCullough. I'm an attorney at Vermont Legal Aid and since 1994, I've been the director of our Mental Health Law Project. At the Mental Health Law Project, we have a contract with the state of Vermont to represent people in all kinds of involuntary mental health proceedings in Vermont from initial commitments, to applications in court to extend a commitment, to applications for involuntary medication. And our work extends not only to people who are in psychiatric hospitals, but also people who are in outpatient commitment and living in the community.

Jesse: At this point in the process, where someone has been brought to an ER where they are then Evaluated by a physician and a mental health screener. At that point in the process, do they have any options? Do they have the right to an attorney? Or anything like that at that point?

Jack McCullough: They do have certain rights, but they don't have an attorney appointed to represent them right then and there. One of the rights they do have, though, is a right to request a preliminary hearing. And these things all happen very quickly, but in Vermont, the statute provides that once you're admitted for an emergency exam you have five days to request a preliminary hearing. And then if you do request the hearing, that's held in the family division of the Superior Court, and the court's required to have that hearing within three working days. The preliminary hearing only happens if the person requests it, and the preliminary hearing is in front of a judge, and the judge has to determine if there's probable cause to believe that the person is a person who needed treatment. It's a very low standard, and it's unusual for us to go to those hearings and get the person out, but it certainly happens. But that's the small minority of cases. Once the application for involuntary treatment, or AIT, is filed, the court gets the application, they're supposed to schedule the hearing within 10 days, or 20 days if an independent psychiatric exam is requested. 

Jesse: So at some point, someone is being brought to a facility where the 72 hour hold begins. Jack McCullough: Right. 

Jesse: So once they reach that facility, what are their options? What are their rights? Do they have due process rights then? 

Jack McCullough: The one right they have, as I said, is the right to request the preliminary hearing. And then they're basically waiting. During that 72 hours, the hospital is, uh, there are three things that could happen. The person could be discharged because after they've been there a couple of days, the hospital decides that person doesn't really need to be there. And the informal term for that in Vermont is that they're walked off papers. They're no longer being held involuntarily. Or, the person could be admitted as a voluntary patient, and again, that is the end of the involuntary process for now. Or, within the 72 hours, the state could file an Application for Involuntary Treatment.  And that's an application filed in the Family Division of the Superior Court, and that's what starts the court process. And when that happens, my project is automatically appointed to represent the person. 

Jesse: So, when a person is being detained for an Emergency Examination they can request a preliminary hearing. And that hearing is supposed to determine whether or not there is any probable cause for the person to be detained. But if at that hearing the judge decides that there is probable cause to detain you, and the facility where you're being detained submits an Application for Involuntary Treatment, then that begins the civil commitment process. So my next question for Jack was, when that process starts, what are the standards that are being looked at to demonstrate that a civil commitment is legally appropriate? 

Jack McCullough: There are two elements to the standard. The first is that the state has to show that the person is, uh, the overall term is person in need of treatment and it contains two elements. One, the person has a mental illness. And in Vermont, mental illness is defined as a substantial disorder of thought, mood, perception, orientation, or memory that affects your judgment, behavior, ability to meet the ordinary demands of life, that kind of thing. And two, that as a result of the mental illness you're a danger to yourself or others. And there's some standards for what it takes to be a danger to yourself or others, but those are the two things that the state has the burden of proof for. And that's a matter of state law, but also it's a matter of federal constitutional law. In the case of O'Connor versus Donaldson, the United States Supreme Court held that if someone has a mental illness but is not a danger to anyone, then constitutionally they cannot be committed.  And so one of the elements in every commitment case is that the person must be a danger to him or herself, or someone else.

Jesse: So one concept that comes up with commitments is the idea of least restrictive alternative. Is that a component in these hearings? Does the Department of Mental Health have to demonstrate that there is no less restrictive alternative? 

Jack McCullough: Yes. Under Vermont statute the person is not allowed to be committed if a less restrictive alternative is available. And so that's one of the things that we challenge sometimes and sometimes we will get a witness, one of our psychiatrists to say that knowing what I know about this person, I would be willing to treat him on an outpatient basis rather than keeping him in the hospital. I just don't think he needs to be in the hospital. So yeah, another part of the process is that in our cases the state needs to prove, has a burden of proof at two points in time. One is at the time of admission. They need to show that the person is essentially in imminent danger at the time of admission. The other point is at the time of trial. They need to show that the person is either still a present danger, a person in need of treatment, or the person may be receiving adequate treatment, but if they're discharged from the hospital without further treatment they would likely become a danger in the near future. And so the state needs to prove both of those things. 

Jesse: So, if at some point during a 72 hour hold the facility submits an Application for Involuntary Treatment, then you will automatically be appointed legal representation from Vermont Legal Aid. And you should get a civil commitment hearing within 10 days, but that 10 day period can extend to 20 days if you request an independent examination.

Jim: Oh, so I could be in the hospital for 20 days before I've had any sort of hearing or anything, reviewing my detention? 

Jesse: Possibly, but you do have the option of asking for a preliminary hearing at the very beginning of this process. However, the standard for that hearing is probable cause, so it's a lower standard than will be required at the commitment hearing.

Jim: Okay, and that would be my first hearing of any kind?

Jesse: Yeah, the preliminary hearing is your first opportunity for a hearing. Your next opportunity is the commitment hearing. But at every point in this process you can request to be admitted as voluntary, and agreeing to be voluntary is generally associated with being released sooner. But if you are voluntary you don't get a civil commitment hearing. 

Jim: Oh, okay, got it. That makes sense. 

Jesse: And if you do make it to a civil commitment hearing, and at that hearing the judge decides that you do need to be detained for involuntary treatment, then you will be detained, inpatient, for up to 90 days. And if at the end of that 90 days the facility decides you need to be detained longer they can submit an application for continued treatment. Which can result in continued detention for up to a year. But everything we've discussed so far is in relation to the civil commitment process, there is also a criminal process.

So as we bring this episode to a close, I wanted to return to the interview with Karen Barber, where I asked, in Vermont, how does the criminal commitment process interact with the civil commitment process? 

Karen Barber: So I think it's important to note in the beginning, Vermont does not have a forensic system of care, so we do not have a forensic facility. We have a civil mental health system that interacts with and overlaps with the criminal justice system, but there is no forensic system. It is a tension in the state of Vermont. So basically what happens is if there's a question of competency, or sanity a QMHP would come in but go to the court and do an initial evaluation of the person. What they're determining is, do they need to have that evaluation in a hospital? Or can they do it in a community? So essentially, do they meet hospitalization level of care or do they not? If the screener says yes, they should be on an inpatient order, then the court will order an inpatient order. If the screener says no, it should be on an outpatient, then we have a psychiatrist, a DMH psychiatrist, at our state hospital do a hospital level of care assessment to say, we know what the screener said, but we're going to determine, does this person actually need to be in the hospital? And again, where a big rub comes in is in Vermont, all hospitals are CMS certified and joint commission accredited. We cannot admit anyone if they don't meet clinical criteria, and that is sometimes difficult for people to understand because people can be dangerous for lots of reasons other than mental illness. People can be mentally ill and dangerous and not mentally ill enough that they need inpatient hospitalization. So there are certainly a lot of instances where our psychiatrist is saying, I'm sorry, but they don't meet criteria, they need an outpatient order. And so then they would go back to either jail or wherever they came from. If our treating psychiatrist agrees, yes, they need to be hospitalized then they will be admitted eventually. And then they will do, um, if it's competency and sanity, they'll have a competency evaluation first. If they're found competent, then we'll do sanity. If it's just sanity, they'll do sanity. So, then it's kind of a parallel process because there's a criminal court order and 90 day hospitalization order that commits them to us. After 90 days it switches over to the family courts and it again, the same Title 18, do they meet criteria? So the person will remain in the hospital As long as they clinically need to be in the hospital and you know, we try to point out to people that's different, you could be incompetent and not need to be in a hospital, you could be insane and not need to be in a hospital and a lot of other states those folks will go to a forensic facility where they would continue to be held in a secure setting, even if they didn't meet strict hospital criteria and receive services there. In Vermont, because we don't have a forensic facility, either they're in the hospital because they need to be there clinically or they're, either they go back to corrections, or they go to maybe our locked residential, or they go back out into the community. So again, they're parallel, but they don't fit together nicely, as nice as some people would like.

Jesse: Can you briefly define competency and sanity in this context?

Karen Barber: Competency is a fluid term, or is a fluid state. So you can be not competent one day, but competent another day. And again, it's important to know these are not necessarily related to mental illness, right? So basically it's, are you able to engage in your own defense? Can you understand the court system? Can you actively engage with your attorney in a meaningful way? Do you understand what's happening? And you could not be able to do that for a variety of reasons. It could be your mental illness. It could be that you had a TBI. It could be that you have dementia. It could be that, you know, substance abuse. It could be developmental or intellectual disabilities. And you can change, you know, you could be not competent one day but competent another day. It's really a fluid concept depending on what is making you incompetent in the first instance. So, you know, if it's substance abuse ideally, once you come off substances,  if it's mental illness, you know, we don't have a restoration of competency program in Vermont like some other states do, so we're not actively working towards restoring someone's competency, but sometimes it is an effect of mental health treatment.

Sanity is a point in time assessment and it doesn't change. It is at the time you committed the crime, basically, did you understand what you were doing? And so you could be competent, be found competent to stand trial, but still be found insane at the time of the offense. So basically at the time you can't be held culpable for your actions because you were incapable of understanding what you were doing was wrong. So that doesn't change. But the competency piece does and so the court system can debate both of those because you can have a couple different experts debating on whether or not a person's competent. The judge makes the final determination about whether or not someone's competent, so you could hear varying experts and then the judge decides. But sanity is a question for the jury. So really you’ll have, again, you'll probably have dueling experts presenting evidence to the jury about whether or not the person was sane at the time of the offense. You can't get to trial though until you're competent. So, competency gets you kind of in the door and then sanity is a defense, right? So you're not guilty by reason of insanity. Some States have guilty but insane, so where you admit that maybe you've committed a crime but you're saying, look, I was insane at that time. In Vermont, it's just not guilty by reason of insanity. 

Jesse: Okay, so most states have one or more forensic psychiatric facilities specifically designated as the place that someone goes to when they are within the criminal system and there is a question of capacity, competency, or dangerousness related to a mental health condition. But Vermont does not have a forensic facility. They don't really have a separate criminal commitment system. Which means that if someone is in jail or prison they have to meet the civil commitment criteria in order to be admitted. And I can appreciate how this sort of forced interaction between different systems could create a lot of problems but it often seems like the argument for why the criminal commitment system needs to be separate is the need for some sort of increased security measures. But being pushed into the criminal system doesn't require any allegation that the person is dangerous. Being pushed into the civil commitment system, however, does require an allegation that there is some form of dangerousness present. So why wouldn't the civil commitment system be equipped to receive people who are alleged to have committed a crime? 

Jim: I mean, like, if I steal a product from a store, I'm a shoplifter, that's not a violent crime. Or I commit some kind of property crime, or something, or I pass a bad check, or whatever, that doesn't imply violence. So, if there's a mental illness component there, why would I need to have a separate process, a separate system in place? Also, I mean, the criminal justice system, too, is dealing with a question of what a person has done. Whereas the mental health system has this predictive role of what we're afraid the person might do, right?

Jesse: Right. 

Jim: It's almost as if we don't make these rules or develop these systems in response to what makes the most sense, we just sort of feel like, get away, and then we make rules to keep them away. 

Jesse: It does often feel that way. 

Jim: We're super fun. People are great. 

Jesse: And speaking of things that are super fun, next time on Committable, we'll be talking about mental health laws in Indiana.

Jim: That means Indiana is going to be really good, right? 

Jesse: Uh, well…

Jim: Wonderful. 

Jesse: (laughter)

Jesse: Committable is produced by Jim McQuaid. Michelle Stockman and me, Jesse Mangan. All music is from the song Reasonable by Christopher G. Brown. 

California: Deputizing People to do More Harm

 Rafik Wahbi: The conversation around involuntary commitment deals with very serious and real issues. It deals with real needs. There are people who are suffering. There are people who are abandoned. One of the things I really dislike is this narrative that people like myself oftentimes are painted as like, we just want people to be left alone. Let them overdose on the street, let them get infections, like let them sleep. No, that's not what any serious advocate thinks in California. No one who has real relationships with unhoused people in California says I want them to stay there. That's asinine and it's pretty offensive to us. What we do say is that the solutions that are provided in California are always the same, It's the same thing, it's not addressing the root cause, it doesn't address the root cause of our ridiculous housing market. It's the funnel, right? It's like a funnel that keeps bringing people in. You can build the greatest homeless response team in the entire universe, but you haven't stopped this, like, California faucet of producing homelessness. And CARE Courts, SB43, all these bills don't touch those things. Not a little bit. 

Jesse: This is Committable, a podcast about involuntary commitments. I'm Jesse Mangan, and over the previous two episodes, we started to discuss mental health laws in California. We talked about the 5150, which is a 72 hour hold. We talked about the 5250, which is 14 days of detention. And we talked about CARE Courts, a new civil court system that seems designed to funnel unhoused people into stricter forms of coercive control.

But the expansion of commitment laws in California is an ongoing landslide of legislative activity that includes policies and proposals such as SB43, AB531, and SB326. A lot of letters, a lot of numbers, and a lot to try and make sense of. So to help us better understand all of this, I spoke with Leah Harris. Leah is a psychiatric survivor, journalist, and activist who focuses much of their work on psychiatric abolition and the elimination of all forms of involuntary psychiatric intervention. And as we began our conversation, my first question for Leah was, what is SB43?

Leah Harris: So with SB43, it's really important to understand the backdrop of Lanterman-Petris-Short, which was a law that came about in the late 1960s and enacted in the early 1970s that was really designed to address the issue of mass institutionalization of people with psychiatric disabilities. So it established the 5150 hold, which said you could only hold people for 72 hours before there'd be some kind of a process to determine whether or not they could continue to be held. So it, you know, involved very limited standards, danger to self or others, as well as grave disability, which under Lanterman-Petris-Short was being unable to meet your basic needs. So what SB 43 is looking to do, they, the way they're spinning it and promoting it is as “reforming Lanterman-Petris-Short”, right? So what it's doing is vastly expanding the criteria for involuntarily confining disabled people under 5150 holds. It's looking at not just mental health disabilities, but substance use. So it's kind of taking on this whole other category of people that now can be rounded up and detained against their will. And they've also expanded the definition of grave disability. So. That basically means that if you are determined by the state to be unable to meet your needs for “medical care and personal safety”, you could now also come under state control. 

And then this also feeds into conservatorship as well, it makes it a lot easier to put people under conservatorship. It streamlines the process. It allows testimony that had previously been considered hearsay, testimony based on medical records from so called expert witnesses, and that can include people who have no direct knowledge of the person involved. So it's highly, highly, highly disturbing to me that they're just kind of sweeping away these really, really important protections, as inadequate as they were before this point, but they're really just now opening the door to the mass detention and institutionalization of people. And I should say, of course, that this is targeted towards unhoused people as all of these policies and laws are that are coming out of the Newsom administration. 

Jesse: So SB43 expands the base criteria for the commitment process in California to include substance use disorders, and redefines grave disability in such a way that I sincerely don't know where the limits are. Pretty much anyone can be, at some point, suspected of being unable to provide for their own safety against some undefined potential threat. For instance, I go on a lot of long walks. Those long walks could arguably be connected to my eating disorder, which has been clinically categorized as severe. So if someone is concerned that while on one of these long walks I might be attacked by a bear, and that I would be unable to provide for my own personal safety during such an attack, does that now meet the criteria for grave disability? And, if so, what then? Does this obviously ridiculous and yet potentially legally acceptable suspicion now satisfy the base criteria to have me detained in a locked facility? And who is going to pay for that detention? Where is that money coming from? Which brings us to AB531. 

Leah Harris: Okay, so AB531 is, it's a bond measure, okay? And it's really important to understand how these laws are all working together. So SB43, which is a law that was passed, it's a done deal. It was overwhelmingly passed in the California legislature. And so how AB531 works with that, it's called the Behavioral Health Infrastructure Bond Act, you know, again, being marketed as modernization. So, unlike SB43, this is actually going to be put to the voters in a package in March 2024 under a package called Proposition 1. Okay, so this would actually allow for the infrastructure to put away all of these people who are being identified by the state as being in need of involuntary treatment. So this is a multi billion dollar bond, it was originally supposed to be $4.68 billion, but the big city mayors and supervisors got involved, which again, really, you know, to me shows that this is about disappearing unhoused people and people of color from the streets. So because of their lobbying, the amount was increased to over $6.4 billion. And how this is being spun is that this is about expanding access to housing, but that is absolutely not what is happening here. I believe only about 1.6 billion of the 6.4 billion is to be spent on housing for veterans and other unhoused people. It's called, “permanent supportive housing”, but it's completely undefined. So those remaining billions actually provide grants. I mean, this is free money to investors from the state for the construction of 10,000 behavioral health beds. What's terribly frightening about this is that the original bond measure had included language that would prohibit the use of funds for locked facilities. It's, you know, repeatedly the Newsom administration said this is voluntary, this is unlocked, this is just expanding access to voluntary care, right? That's how it was sold. And then they did this absolutely atrocious bait and switch in the final week of the legislative session, I mean, you cannot make this stuff up, the words unlocked and voluntary were just stripped from the bill text. And I actually have a fact sheet from June that I found archived that showed all of that language of community based and voluntary and unlocked and that has all been completely scrubbed from the internet. And I'll just say, you know, I wrote about this in the Disability Visibility project, this is really paving the way it's, I believe it is not hyperbole, It is paving the way to literally rebuild the asylums. 

Jesse: So SB43 expands the base criteria for the commitment process, which will almost certainly lead to a significant increase in the number of people who get pushed into that process. And AB531 establishes billions of dollars that can be used to build locked psychiatric  facilities. But what about voluntary, community based resources? What impact might these bills have on access to those forms of support? And that brings us to SB326. 

Leah Harris: So SB326 is the Behavioral Health Services Act, also known as Mental Health Services Act Modernization. So again, just notice they have really consistent branding. I'm so curious about the PR firm that they engaged to develop all of this spin. But essentially what it's doing is decimating, I mean, that's the language that advocates have used decimating the existing Mental Health Services Act, which came about 20 years ago. It was a 10 year effort largely driven by people with lived experience to create a, you know, recovery oriented peer driven system in California. There was a tremendous amount of lobbying and advocacy that came about to make this happen and what they're really doing is slashing a lot of the funding for county mental health services in half. At the same time that they're expanding the population of people to receive services under this act to include again substance use, right? So it's consistent across the board that providers are being asked to serve, you know, a whole other group of people with no additional funding. Sacramento County, for example, testified that this would force the county to cut critical outpatient services by 65%. Peer driven supports are looking at being completely cut and eliminated. I mean, these are services that are created by people who understand what's happening on the ground the most. It also, I think this is another piece of it, is that it diverts services to “housing interventions”. So again, taking away these voluntary community driven supports to divert them towards housing interventions, and I more than anyone want people to have access to permanent supportive housing. You know, this is not about whether or not people should have housing, but what housing interventions are is tremendously unclear. The money can absolutely be used for short term clinical treatment facility stays, including involuntary and locked facilities.

And it's super, super important to note that neither 326, or any other bill, including AB531, will create any kind of entitlement to housing for people who are unable to work. It will not comprehensively house people who are unhoused. And we know that, you know, the way they're spinning this, I should say, and this is not specific to 326, but to all of this legislation. You know, part of the rationale is that the vast majority of people become unhoused because of mental health or substance use issues and that is completely not true. There was a huge survey that UCSF conducted just this year of unhoused people and the vast majority of them said, the reason we became unhoused is because rent is too expensive. We fell behind on our rent and like a $300-$400,  you know, cash assistance would have kept us out of houselessness. But instead of doing what makes sense, right? What is a logical response. They're pushing this whole treatment not tents rhetoric, right? So it's just, you know, demonizing people who are victimized by these absolutely horrific housing policies and housing injustice that exists in California and across the nation.

Jesse: Over the past few years on this podcast, we have actively been trying to deconstruct mental health laws throughout the United States. And every time I read one of these laws, I have a visceral reaction. I am instantly brought back to the experience of being strapped down and detained, inpatient. At one point, simply seeing an email with a written statement about commitment policies left me decimated, curled into a ball, crying on the floor for almost an hour. My wife heard the muffled sobbing, walked in to see me in that state, and she just held me. Held me until the shuddered, gasping tears began to fade. 

I don't know how to communicate to people in positions of authority what it feels like to constantly see the thing that caused the most traumatic moments of your life get more funding.

I don't know how to convince policy makers that the people who are forced into these systems are still people.

I don't know how to explain the experience of just trying to exist in this society, knowing that everyone around me has just been given the power to strip me of my rights and disappear me in the name of treatment.

How do you explain that experience? How do you prevent something like that from happening? 

 Rafik Wahbi: We have to be ahead of the systems that try to profit off of deputizing people to do more harm. 

Jesse: This is Rafik Wahbi. 

 Rafik Wahbi: Hey everyone, my name is Rafik Wahb and I am a community health scientist and educator. I focus on, kind of the intersection of mental health, substance use, and criminalization. So I really try to study and understand why is it that we take health issues, things that have clear health solutions, community solutions, and kind of apply these more carceral modalities, carceral approaches. And, uh, that's just a little bit about my work. And, um, I also love music and hip hop and love to try and mix that. But, yeah, I love to always just think about how music, art and food can communicate things that words cannot.

Jesse: I wanted to talk with Rafik to try to process all of this. And to try and figure out what to do when faced with policies that seem designed to separate, to isolate, designed to take people who are visibly struggling and make them just disappear. 

 Rafik Wahbi: This is something that I've been thinking about so much is this idea of separation and isolation and, you know, forced treatment is the epicenter of that. And what we're talking about is that, like, the act of doing that to someone is isolating, it's meant to separate, it's meant to remove connections. And so what I've noticed is like that's just in line with really any carceral policy, any sort of carceral approach. Prison, jail, it's all about disconnection, separation. And so when I think about what's been happening in California I just think it is like putting the pedal to the metal and like really putting it down and wanting to push even more this idea of separation. So I think the answer to this is organizing and coming together, but it's really resisting the idea that the way that we solve any of these issues is by further isolation, but it's really the opposite. It's about, um, come together with a group of people, people you're advocating for, people who have suffered and said this system isn't working for me. Identify a part of it to say we want to study, learn more about it, and then we want to not just advocate and demand for this change, but we want to actually build it on a small scale. If it's just a block, like hey, you've been interested in mental health crisis response systems, like that's something that has been a hot topic across the country. Well, just like anything else, the state has taken that over too and everything I've heard from, you know, the 988 number is that it's not really working as a lot of people wanted it to. I'm not trying to hate on it, like, I think this is how things happen and develop and progress, but If you're waiting for your county, your city to kind of come down from on high, present you with the funds and the system that you've kind of been reading about, dreaming about, it's just not going to happen. And I think the further isolation makes us feel hopeless and makes us feel like, all right, you can take it away Gavin Newsom, you know, do your thing. 

Jesse: One of the things that scares me most about something like 988 and things like CARE Courts, is that in both instances, I think 988 has been incredibly successful because it gave people something to say. You hear it on radio, you hear it on TV, if you have concerns about what you just heard call 988. And CARE Courts, it gives people something to do. You can fill out a petition, you can fill out an application, and you don't need to worry about what happens next. You've done something. And I feel like those, those actions, giving people something to say, giving people something to do, is based on sort of like, you know it when you see it. You'll know the person who needs this when you see them, and you'll know the situation when you see it. And that just takes the bias, or the confusion, or the misunderstanding that was there, and supercharges it. Now people aren't going to question that bias. They're just going to think, well they've given me something to do, and they've told me they want me to do it so, I'm just going to act. I'm just going to react because you know it when you see it. And that, I think that's what really scares me because we all need to be questioning that. We all need to see someone who makes us uncomfortable and think, I don't know what is going on for them. I don't actually know if they're dangerous or not. I don't know what they need. I can either take the time to ask and try to figure out what's going on here, or maybe I should leave them alone and it's not really my place to get involved. We need to be doing more of that and not giving people something to do just for the sake of doing. 

Rafik Wahbi: Yeah, I love that. I think the curiosity piece has been so non existent and, you know, seeing someone in a crisis, there's no level of curiosity. There's so much that's already been decided and determined. And this is, you know, it's not something that's an individual. It's really a thing that we as a society have determined. We're like, we have all these laws and all these narratives and all these things in place that say like, here's how the right way to act is when you see something like this. And I think it's, it's going to be a big shift. Like, again, when I talk to people, just my friends or whoever else, like, you know, one quick story is I remember talking to someone and they were saying like, yeah, I carry a knife now. And I was like, okay, why do you carry a knife now? And they're like, well, I was on the train one time and like this, you know, homeless man came in and was yelling.  And I was like, yelling at you? And he's like, no, he's yelling at himself. And I was like, You're telling me this story about you having a knife because you were going to stab this person? And I'm just listening and I'm like, what is wrong with people right now? I've been seeing unhoused people come on the train and yell for 25 years, it's not new. And I'm not saying that there's not a need there, I'm not saying that there isn't something that could be potentially frightening there. But I think like, wow, you want to now bring a knife to this. 

Jesse: Yeah, and now everyone has been given a knife in the form of a CARE Court application, and feel free to use it. 

Rafik Wahbi: Not just individuals, but like people in power. Now it's like, hey, what's being done? What are you doing about the homeless crisis? Every mayor and every politician in California now can say CARE Court. And one last thing I'll close on is they can say that because every elected official, every single one, I think minus two, and they were Republicans, were in favor of CARE Courts. It's really important that listeners know that in a state like this,  every single one except like, again, two, voted yes. This is pretty unheard of in California. You don't have bills that monumental, without even a peep. No question, no resistance, just yes. Take billions of dollars, shift them, yes, no questions asked. There's something about that that is, you know, very concerning because it's like, there's a lot of pieces moving and just a lot of people in power who are very in support of it. And so, you know, really questioning that and answering like, why is that? And I think to your point, it's because now they can say like, well, here's what we're doing. We're doing a whole lot, let me tell you what we're doing. We got CARE Courts. We got SB43. We got, I mean, it's a whole thing and they can all now say that. It sounds amazing. And that's like, I would love if I was getting paid to promote CARE Courts, oh my gosh, I would do amazing. I could promote the crap out of this thing. And that scares me. Because it feels like it's packaged in a way that it's giving so many people something to do, or something to say, or something to point to, and all of it is In my opinion, not the right things.

Jesse: Many of the people who are forced into these systems are genuinely struggling with something; a personal tragedy, a medical issue, trauma, poverty, discrimination. There is usually a very real and very serious struggle in that person's life that needs to be addressed. And if you hear about those struggles and an involuntary commitment feels like it could be a helpful response then, please, take a moment and close your eyes. 

Close your eyes and imagine a person that you think these policies might apply to. Imagine that person in crisis. Imagine that crisis being responded to with handcuffs, confinement, a court order. Imagine that person being strapped to a gurney for no reason other than policy. Imagine that person seeing a needle, an injection, prepped and referenced as a threat to make them comply. Imagine that person, in court, seeing medical and legal experts that they have never once spoken to testify, under oath, that this person, this is a person who isn't fit to be free. Imagine that person, going through all of that and then when there's no longer funding to perpetuate the experience being discharged to a curb with nothing but hospital garb and an expectation from the facility that they'll be seeing this person again, real soon. 

Imagine that person going through all of that and now imagine that person is you. 

Because with these laws, it could be. 

If these laws go unchallenged, if these proposals become policy, then we all become more vulnerable. Because as Clare Cortright so eloquently established in the first episode of this series, if this doesn't stop with us, then it doesn't stop with us. 

Jesse: Committable is produced by Jim McQuaid, Michelle Stockman, and me, Jesse Mangan. All music is from the song Reasonable by Christopher G. Brown. 

California: Merry Go Round of State Control

Olivia Ensign:  So your conservator could refer you to CARE Court. You go through CARE Court. You're not set up to succeed, so you fail out of CARE Court and that's then used against you in future conservatorship proceedings. And then you're back in a conservatorship.  And again, again, it's essentially this, like, merry go round of state control.

Jesse: This is Committable, a podcast about involuntary commitments. I'm Jesse Mangan, and amidst ongoing legislative efforts to expand mental health laws in California, probably the most prominently discussed of those efforts, at least on a national scale, has been CARE Courts. CARE Courts are, in essence, a new form of outpatient commitment that targets adults who have been diagnosed with a schizophrenia spectrum disorder, particularly anyone with such a diagnosis who is considered to be unhoused. 

And all of that raises a lot of concerns. 

So to better break down the CARE Court process and discuss the potential risks of such a process, I spoke with Olivia Ensign. 

Olivia Ensign:  So, thanks so much for having me. My name's Olivia Ensign and I'm a senior advocate and researcher at the U. S. program of Human Rights Watch. And Human Rights Watch is a non profit, non partisan organization that investigates and reports on violations of fundamental human rights in over a hundred countries worldwide. 

Jesse: So, what are CARE Courts? 

Olivia Ensign: So this process is convoluted and complicated by intention, but just to kind of walk you through basically step by step what a CARE Court looks like and what's established in the CARE Act. The first step is the petition process. And there a petitioner will file a petition against a respondent and under the CARE Act, who can be a  petitioner is a super expansive list. So it can be someone's roommate, someone's spouse, it can be a police officer. And essentially these folks, many of whom may not actually be trained in identifying mental health signs and symptoms, can basically thrust a person, without their knowledge or their consent into the jurisdiction of the CARE Court. And the petition that someone is going to file, it includes really subjective standards, including it speaks to whether a person is unlikely to survive in a community without supervision. Or that a person is in need of services and supports in order to prevent a relapse or deterioration. But again, the petitioner may not actually be trained either in kind of legal capacity or in mental health signs and symptoms, but they're still able to file a petition that thrust someone into the jurisdiction of this court. 

And not only Does these kinds of broad categories of petitioners include people who may not actually have knowledge, we have real concerns that the folks in these categories could use these petitions potentially for harassment or even abuse. So, you know, if you think about a family conflict, or you think about an abusive spouse, there's nothing stopping someone from essentially filing a petition about someone, again, without their knowledge or consent,  pushing them into the jurisdiction of the courts. And potentially, depending on how the process plays out, pushing them into coerced treatment, into a particular type of housing, particular types of treatment. 

So there's real concern about that from our end, as well as the fact that police officers are able to be petitioners, because again, we know that there is the potential for abuse and police officers are not necessarily trained in identifying mental health signs and symptoms.

And in this case, because of how the CARE Act was rolled out, it was specifically, kind of, marketed as a means to address visible homelessness in California. And based on kind of historic interactions between law enforcement and unhoused communities, there's a real concern that officers, or homeless outreach workers, for example, can threaten folks who are living on the streets with the threat of CARE Court. And even if they don't actually file a petition, even the threat of a petition, potentially to make folks move or to incite some other kind of behavior, that can traumatize people. It can disrupt communities, and it's potentially a really dangerous tool in the hands of law enforcement.

Jesse: So CARE Courts are a new civil court process that was created by the CARE Act. And this process designates a wide range of people; including members of law enforcement, first responders, parents, siblings, children, grandparents, registered domestic partners, and roommates. As some of the many different categories of people who can petition the court to have someone else forced into the CARE Court process. And CARE Courts, like all forms of outpatient commitment, leverage the threat of consequences. Consequences such as being detained by police and forced inpatient. CARE Courts use the threat of that potential consequence as a means of attempting to control the targeted person's behavior. And the power of that threat, the fear it generates, can become pervasive. Because by empowering a wide range of people with the ability to initiate this process, this law has also empowered those people to simply suggest that they might, possibly, maybe, get you thrown into CARE Court if you don't do what they say. 

And if that type of coercion exists before a petition is filed, then what happens once that petition is actually submitted?

Olivia Ensign: After this petition is filed, basically the court is supposed to review it promptly. And they look at if there is prima facie evidence that someone meets the criteria of CARE Court. And to just explain what that means, because legal Latin is always a beast, that basically means that the court is treating everything in the petition, all the alleged facts, as if they were true. And essentially then asking the question, so if this is true, Has the petitioner met the criteria for CARE Court? And if the court finds that there's no prima facie evidence, the petition is dismissed. But if they do find that there's this, again, very low standard of evidence, it essentially goes forward into the series of civil court proceedings. And at that point is when the court will do things like set a first appearance date, appoint counsel, and this is potentially the first point that someone will even learn that they're the subject of a petition, when they get a notice that says they have to have a first appearance and that they've been assigned counsel. 

So again, just kind of thinking about what that could feel like, particularly if we're thinking about an unhoused person. First of all, how are they even getting these notices potentially? But to think about, you're just kind of living your life and then you get this notice that you are supposed to appear on a certain date. Maybe it's all the way across town, maybe you don't have reliable transportation, and you're basically supposed to show up and you hear you have an attorney, and you don't really know anything about the process at this point. It has the potential to be incredibly confusing and traumatizing. 

And at that point, there's the first appearance, the person who's actually the subject of the petition isn't actually even required to be there in person, which raises a whole bunch of other due process concerns that the hearing can go on without them. And then at that point, the court basically goes forward with setting a merits hearing and the merits hearing is on the petition. And basically, if the court finds that a person meets the criteria for the Care Act, then the person who's the subject of the petition is required to enter into negotiations with the County Behavioral Health Agency, and they're supposed to basically come up with what is called a voluntary care agreement. But if the person who is the subject of the petition and the County Behavioral Health Agency don't agree on a plan, then the court actually orders a court ordered clinical evaluation by the same behavioral health agency. So, any kind of semblance of equal status in terms of the negotiation process is obviously patently false, because if you don't agree to what is called a voluntary plan, you then have to undergo evaluation by the same entity you were negotiating against. And this is a thing, no matter how many times the proponents of the system want to use the word “voluntary" or “care”, it doesn't change the fundamentally coercive nature of CARE Court. 

And there has been a real kind of co-opting during the entire process of implementing and pushing through the system. There's been a real co-opting, I think, of the language of the peer movement, for example, and the disability rights movement. And that co-opting has created this really kind of dangerous veneer of voluntariness without kind of addressing the fundamental issue that this is court supervision, and this is court ordered treatment. And we know, just looking at the studies, that coercive treatment is not only not dignity affirming and rights respecting in many cases, but it's also not as effective as when people can actually access voluntary treatment. Involuntary treatment or coercive treatment can actually discourage people from seeking out voluntary treatment in the future because of what their experiences are.

So, again, this co-opting of the language doesn't change the really fundamentally coercive nature of the system. 

Jesse: When a person is pushed into a system like this, that experience, that sort of disruption to a person's life can be traumatic. It can cause lasting, debilitating, harm. So my next question for Olivia was, if a person is pushed into this process what happens once the court order is actually issued? And what happens if you don't fulfill the requirements that are being forced onto you by that court order? 

Olivia Ensign: Then you kind of enter this period of a year, potentially two years, where you're supposed to go to regular hearings, there's regular court supervision. And if you basically fail out of this care plan that is used as a presumption in future hearings that you need additional intervention, which can include conservatorship. And just to explain what that actually looks like, conservatorships are an absolutely incredible deprivation of liberty. It's more than just if you were jailed or incarcerated, you lose the ability, the legal ability to make decisions about your life, including where you're living, what kind of medication you're using. It can include being put in locked facilities. It can include forcible medication. It is taking away kind of the fundamental ability for people to exercise their autonomy and their dignity. 

So again, this is an incredibly serious deprivation of people's rights and our fear is, essentially, that CARE Court is in practice this on roading to stricter forms of state control, including conservatorship. And particularly because one of the initial categories of petitioners is also conservators, there's this potential that you're kind of cycling through these different forms of state control. So your conservator could refer you to CARE Court. You go through CARE Court, you're not set up to succeed. So you fail out of CARE Court and that's then used against you in future conservatorship proceedings, and then you're back in a conservatorship. And again, again, it's essentially this, like, merry go round of state control. 

Jesse: The trauma that I experienced from being forced inpatient, the lasting impact of those experiences wasn't just the specific moments when I was inside the facility. A significant amount of harm was caused by what happened in between those events. The ever present threat of being sent back to a facility kept me in a constant state of fear.  It impacted every decision I made, and it can be incredibly difficult to make long term improvements to your situation when every choice is saturated with the pain, the terror, of knowing that at any moment you could be ripped away and forced to relive the most traumatic moments of your life. 

CARE Courts use that fear, they leverage that threat as a means of compelling a person to comply. Which, for me, raises serious questions about the creation of these laws, were legislators aware of the harm that can be caused by this sort of coercion? What was it that they thought they were accomplishing? In their minds, what are CARE Courts? 

Lex Steppling: It's a good question, and I know you received a longer kind of policy explanation, but if you were to ask our state and local government they wouldn't fully be able to tell you because it's a brand much more than it's a thing. 

Jesse: This is Lex Stepling. 

Lex Steppling: Okay, my name is Lex Stepling. I'm an organizer with LACAN, Los Angeles Community Action Network.  Also, working in kind of developing a collective with people who are in agreement and aligned around the dangers of this push towards what will be, among many other things, CARE Court. And my work currently focuses on building holistic and strong, you know, political power that demands housing for all unconditionally. It demands divestment, complete divestment from systems of state violence as a means to an end, especially carceral systems, systems of violent policing, etc. And, you know, focusing on what people actually need, which I think we'll be talking about in this conversation. 

So, that's me. I'm based here in Los Angeles, it's my hometown. 

Jesse: We spend a lot of time on this podcast trying to break down the structure of mental health laws. Trying to understand how these laws work in both theory and practice. But in the face of what feels like an overwhelming tsunami of expansions to commitment laws and the systems of coercion that surround them, it becomes really important to try and understand the intent behind those expansions. So, I asked Lex, what was the stated intent for the creation of CARE Courts? What specifically is the problem that CARE Courts were designed to solve? 

Lex Steppling: It's hard to talk about it in earnest or even pretend like they're trying to solve a problem, so I can only really answer the question based on what I think is happening. I would say that, let's say over the past 20 to 40 years big cities around the country have been gentrifying at various rates. Some more quickly than others, and then some areas in those cities more quickly than others. But what they all have in common is that they have gone into areas, neighborhoods, et cetera, that maybe for the 50 years prior were very underserved, suffered tremendous disinvestment, Redlining, incursions and encroachment from violent policing and surveillance. Lots of family separation through incarceration, lots of economic devastation through incarceration, through fines and fees, through forced engagement with the court system. In addition to that, lots of really severe impacts economically when it came to the price and cost of living, especially housing. So areas that were already divested from, where you don't have amenities, you don't have good markets, you don't have infrastructure that you should have, allowed for, you know, what people would call like underserved areas or lower income areas, or people would call ghettos or slums, et cetera. Where people without generational wealth are living and lived for generations. At some point, these areas have become desirable. I think it's, uh, it's probably for a lot of reasons. It's the financialization of housing, commodification of housing, commodification of space. And commodification and financialization aren't necessarily the same thing, right? You have the private equity around housing, but then also commodification where neighborhoods become desirable, not just as finance widgets, as far as the land itself, but also culturally desirable where you have like, you know, many generations of white flight created a lot of alienation and cultural alienation. And I think the subsequent generations wanted to break through that alienation and go live in the city and be around culture and be around things that made them feel a part of some sort of collective civic reality. And that in and of itself created a certain type of commodification.  All those factors have contributed to this huge polarization economically around housing. 

So all of these things, and I could go on and on about all of these factors, have contributed to a cost of living crisis and a housing crisis where poverty is not new to this country, but the level of visible poverty has really created a kind of political hysteria. And the most acute form of that visible poverty is homelessness, houselessness, unhoused people. And so with gentrification now, a lot of people who come from wealth, who also aren't familiar necessarily with the neighborhoods they live in, are witnessing a lot of unhoused people. And then they'll say it's because, you know, one of the prevailing narratives says it's because they're mentally il,l or they're on drugs, rather than the fact that if you have nowhere to go and nowhere to live that's going to exacerbate the quality of your mental health period. And so the response to this crisis, As mediated by the, you know, the neoliberal system that we live in is going to talk about everything but the necessary public investment in infrastructure. The conversation is about what to do with these people rather than the obvious answer being, like, housing for all. Dignified, quality housing for all is the answer. It's always been the answer. It's actually not complicated at all, it's only complicated because the system that we're governed by doesn't believe that those things should be a right. It believes that they should be an economic widget. 

So, CARE Court has come out of that problem, that crisis. And It really, quite honestly, in my opinion, it's a political spectacle rooted in the discomfort, or the revulsion, or the latent class contempt of, you know, several classes of people who don't like the visible poverty in areas that they're spending a lot of money to live in. They come into cities and want this kind of urban theme park experience offered by places like New York and San Francisco. You know, L. A. doesn't do it as well, we're a very badly laid out city already, but you know, you go to San Francisco, or you go to parts of Brooklyn and parts of Manhattan, I mean, it feels so curated. And it's ironic because what they're experiencing is the joys of having infrastructure.

The mentality that informed suburbia was a mentality of exclusivity. City, civic life, is informed by a mentality of inclusivity. It's supposed to be common space for everyone, common infrastructure for everybody to use, for all working people. So what happens now, what we're experiencing is this collision, this disorientation, where people are bringing this unprocessed suburban exclusivity into urban areas that are not supposed to be exclusive and trying to impose it. So they don't want to share space with people that make them uncomfortable. And it's really that simple. What they also don't want to feel though is bad or guilty, so CARE Court comes from this fantasy that's being peddled by, you know, mostly Democrat politicians saying, no, you don't have to feel bad, we are actually trying to help these people. But really that's coded language because the subtext, but it's a really loud subtext is, I know you just want to get rid of them. How do we disappear this thing that you're not enjoying being around? Nor should you, by the way. Nobody should be happy seeing folks with nowhere to live suffering. That's just not okay. It should not exist. This is a fantasy that we can just disappear the problem, because that suburban exclusivity piece that I mentioned earlier is also informed by this competitive thing people have with each other around like, you know, I spent a lot of money on my home, or I spent a lot of money on rent to live in this area I'm proud to live in. Makes me feel special. That shouldn't be for everybody, it should be for those of us who deserve it. We're good enough to have done whatever we've done, et cetera, et cetera. So I don't want to have to share it with everybody, but they're not going to say that. So instead it's like, can you just make these other people go away? So boom, here's CARE Court, we will make them do the things that you think they should do. Well, if these people would just stop using drugs or get treatment and show that they're going to go to work and la la la, then everything would be okay, right? It goes back to a lot of very American mythology around bootstraps and, you know, personal responsibility and things like that.

So, CARE Court is really, it's not even half baked, it's not even a 16th baked, there's no tangible granular idea. They're just saying, let's tell everybody, we're going to get everybody off the streets and make them do what they should do. The other subtext being, that's what you would do, right? You would do that in a similar situation? Because the fantasy of that's how I would get myself together when these are folks who don't, you know, you can't understand what a person's going through, even if you've been through something similar. You don't know what they're going through. And then everybody should, on some level, understand when you feel financial anxiety, there's no anxiety, there's very few anxieties as intense and as severe. So, that's where I believe CARE Court is coming from. No infrastructure is being developed for it. I believe it's going to head in a very carceral direction, and I don't even think there's an intention to actually develop it. It just feels like a political, a collectively developed political talking point to address an issue that the post gentrification class of American voters, most of whom probably vote Democrat, are struggling with their own class contempt and exclusivity politics, or lack thereof, around not being able to handle what they're seeing and being denied the opportunity, or only offered this conversation, this fantasy, rather than the conversation we should all be having. Which is like, there are solutions to this actually. They may not be something you understand, they may run against your exclusivity politics that I keep mentioning, but there are answers. 

Jesse: In essence, CARE Courts create a process that allows for a vulnerable person to be targeted with a court order, not because they are alleged to have committed a crime, but because they are visibly struggling. That court order does not create solutions. It does not provide any meaningful change to the systems of oppression and neglect that are at the heart of many of those struggles.So my next question for Lex was, how do we address these issues in a way that does bring meaningful change? And what sort of cultural shift might be necessary to convince legislators to allow that change to happen? 

Lex Steppling: As somebody who really does want to work to help make things better, I think culture shifts come when people are told the truth. I'm actually not, you know, misanthropic in this way. When people are relentlessly told the truth, I think they get comfortable with it. So I think the political consultant class often tries to focus group strategy and thread these needles and use polling and none of that works. You can't mediate your strategy when you already know what needs to happen. You can't let it be mediated by people who don't know how it works telling you like, actually, no, you know, this homeowners association in, uh, I'm trying to give a New York example since you're in New York, this homeowners association in Park Slope doesn't want that shit here, you know? So we have to like not offend them. We have to get a message that somehow threads the needle between, you know, them and what we actually want. That to me is a huge waste of time and actually a real betrayal of the community. There's always going to be NIMBYism, and there's always going to be that exclusivity I keep mentioning. If you let that mediate anything, all that does is keep it in place. I can't spend too much time even being interested in them, because what they want is not what we want. They, at the end of the day, don't care if people don't have homes, or maybe they care, but they don't care enough. They just don't want to have to be around it. That is an unsustainable way to create the civic reality I want to live in.

And so, if we're just speaking pragmatically, we should simply, and I mean it, simply be as loudly as possible, as consistently as possible, saying, this is what works. Housing for all works. A clinic on every corner works.  And I mean, unconditional high quality housing. I don't mean housing as a negotiating chip enforcing you to access treatment a certain way that they're telling you you have to, or getting checked on by social workers, or temporary housing or shelter. That doesn't work. And everybody knows that. Very few people need to be getting checked on consistently by a social worker, some people do, there are people who really need constant long term supportive housing. Most people don't though. And most people also, no matter whether they need that support or not, want their dignity and their autonomy. And this makes some people uncomfortable. Some people are like, no, they shouldn't get that. What have they done to deserve it? I'm not interested in worrying about you feeling that way. I want the solutions in place and when policy people worry about other people feeling that way, that to me is their own latent sympathizing with those folks, rather than being like, you know this will work. And pretty soon people will see it will work. And then we're going to be living in much safer, healthier communities and you're going to see far fewer people on the street, which is what you want, right? So who cares if you are uncomfortable with this indoctrination we receive in this country around no one should ever get something for nothing, because there's no truth to that. This is our money. These are our resources. And none of us have ever worked ourself up from the bootstraps. 

You know, I didn't go to school, the last grade I completed was the 10th grade. I was working at a very young age, on my own at a very young age. And somebody could easily look at me and be like, wow, you didn't even go to college. You didn't do this. You didn't do that. You were 16 years old, already on your own, paying your own rent. You really pulled yourself up, you're self made. No, I'm not. There were other ways people helped me. There were other types of, you know, speaking of infrastructure, there was more investment in youth programming when I was growing up. There were things I was able to access that created opportunities for me. They just may not be one of the conventional channels that a more economically privileged person might imagine how you develop a career. But I did have help, and I did have opportunities, and anybody who's doing well right now it’s because they were helped. 

And so, again, the way they stoke the fires, and it's not just the right who does it, of, you know, resentment towards anybody getting something should never mediate our efforts to deliver what's necessary. And so, if we are relentlessly telling the truth and pushing forward a vision, and it's on us to be granular and rigorous when we need to about how it could look, we will see really good outcomes. And I'm like, let people respond to that. I don't want to respond to their ignorance around an issue. I want them to respond to what we're saying that we know works, that we've even seen work before. That's what I'm interested in. If we let nonsensical bias motivated discourse set the tone, then we're failing.

Jesse: As we bring this episode to a close, I wanted to return to the interview with Olivia Ensign where I asked, Is there anything else about these laws, about these expansions to systems of coercion and commitment, that is important to know? 

Olivia Ensign: So, one reason that Human Rights Watch was opposed to CARE Court from the beginning, and there's really been nothing to kind of alleviate these concerns, is the fact that more folks from BIPOC communities are absolutely going to be placed under the jurisdiction of these courts. And that's really due to two things. The first is because of a long and still ongoing history of discrimination in housing, in employment, and in policing, more BIPOC community members are already houseless.  And again, the way that the CARE Act was kind of rolled out, this was billed as a response to visible homelessness in California. So if CARE Court is used as a tool by homeless outreach workers and by police, that's going to mean that more people of color who are unhoused disproportionately are going to be under the control of this court. The second part of CARE Court we worry is going to have this racially disparate impact is that it singles out people, and I'm using the language of the actual CARE Act, it singles out people with schizophrenia spectrum and other psychotic disorders. And research shows that due to bias, to misinterpretation of trauma, and a lack of cultural competency, mental health professionals overdiagnose and misdiagnose specifically Black and Latinx populations with these conditions at a much higher rate than white populations. So we have real concerns that the way that CARE Courts are going to play out are going to exacerbate existing racial disparities in terms of who is under systems of state control.

And if we look to the International Covenant on Civil and Political Rights, if we look to the International Covenant on the Elimination of Racial Discrimination, they require state parties to engage in no act or practice of racial discrimination against persons or groups of persons.  So, this is not a Rights conforming structure. We have real concerns with how it's going to play out and who's going to be impacted. 

Jesse: So, one of the things I've been trying to just get my head around with CARE Courts is whether or not it should be considered discriminatory based on the simple fact that it identifies a diagnosis. Because that diagnosis doesn't mean you're dangerous. When you're diagnosed with a schizophrenia spectrum disorder it's not based, essentially, on you being dangerous in any way. It's not based, essentially, on you being a threat to anyone or anything. 

Olivia Ensign: No, if anything those folks are more likely to be victims of crimes than to actually perpetuate crimes. 100%. 

Jesse: Is there any concern about whether or not a law can specify a diagnosis? Because I'm just, it's hard to compare it to other conditions, like, we don't have laws for other types of medical conditions saying if you have this condition we're going to confine you. It just, it doesn't exist anywhere else. So we're in this sort of weird area of the law where it's become accepted. Now they're making, they're trying to make the law sort of match that cultural, pre-existing cultural sort of ingrained concept that these people, these are the people who we need to lock away.

Olivia Ensign: It's building off of what is often kind of unspoken stereotypes and stigma, and then it's putting it into law. And again, nothing has been said during any of the legislative hearings, any kind of interviews I've seen by the proponents of this law, to suggest that this is not going to disproportionately impact communities of color. And I think to the question of whether that is like specified or unspoken, we have to acknowledge that this society, certainly the medical institutions, employment institutions, every institution in this society, is built on a legacy of white supremacy. So it's not enough to just kind of take passive actions and hope for the best. There has to be a real dismantling and questioning. We can't just take these statistics on overdiagnosis and misdiagnosis at face value, we have to inquire as to why that is.  And again, when we think of, kind of overlapping systems of state control, whether it is the civil and voluntary structures, whether it's the criminal legal system, part of making sure that those systems can be broken down and are not continuing these legacies of white supremacy is actually naming explicitly the bias that is embedded in these systems. And that is absolutely needed in CARE Court. 

And I think as it plays out, we need to be monitoring and documenting and asking these questions and seeing who is sucked into the system and what the results are. And this got rammed through over the opposition of many black led groups, many civil rights groups, many peer led groups, who over and over again were raising concerns of racism and bias that was just baked into the system. And those concerns were never addressed. Those folks were never listened to. And now we're going to watch this play out in those communities and a lot of people I talk to are really scared. 

Jesse: How do you navigate society when the message sent by legislators is that when you are failed by our systems, then you are the one that needs to experience consequences? How do you not interpret that as a punishment? A punishment for the offense of visibly suffering as you try to survive. And CARE Courts are just one thread in the ever expanding net of commitment laws in California. And there are several other pieces to that net that are all rapidly closing in.  

Jesse: Next time on Committable.

Rafik Wahbi: You know, this idea of deputizing people is really something that's been in the nature of forced treatment, you know, forever. And we have to be ahead of the systems that try to profit off of deputizing people to do more harm. 

Leah Harris: There's also no data being offered for all of these changes to the Mental Health Services Act that shows that altering it in these fundamental ways will actually improve outcomes for anyone. It is paving the way to literally rebuild the asylums. 

Jesse: Committable is produced by Jim McQuaid. Michelle Stockman and me, Jesse Mangan. All music is from the song n by Christopher G. Brown. 

California: It Doesn't Stop With Us

Clare Cortright:  This, like, mental health becoming a focus and a practice area for traditional civil rights groups who have not had this as a focus area. There's starting to be a lot of attention because they're realizing this is the bleeding edge, right? Like, if it doesn't stop with us, it doesn't stop with us.

Jesse: This is Committable, a podcast about involuntary commitments. I'm Jesse Mangan, and in recent years there has been a lot of legislative activity in California focused on making it easier to funnel people into the commitment process. But in order to really understand the scope of these new laws, I think we first have to discuss the foundation upon which these laws are being built.
So to better understand mental health laws in California, and the practical reality of what it is like to survive the commitment process in that state, I spoke with Clare Cortright. 

Clare Cortright: My name is Clare Cortright, I'm currently the policy director for Cal Voices. We are a peer run organization, so that means we're an organization that's run entirely by and for people with mental illness. Um, I'm an attorney, I'm a person with lived experience of serious mental illness, lived experience of involuntary hospitalization, family member, friend, you know, partner to someone with serious mental illness. I spent, uh, almost 5 years representing folk who are being detained on involuntary holds in California. So we have a series of them, they go in increasing lengths, so I've represented several thousand people in four counties in California. You know, a lot of my, um, opinions and feelings about mental health are really from listening. I think when I did the back of the envelope math on like, how long have I spent in conversation with mental health consumers in one, you know, setting or another. And I think it's about like, four years in solid conversation with people. So that's kind of where my thinking has comes from. 

Jesse: So, California has one of the most infamous mental health laws. What is a 5150? 

Clare Cortright: Yeah, so in terms of who can initiate a 5150 in California, it's the police, categorically, and then the county has control. Typically, the county is going to want it to be a licensed provider of some type, somebody with some education, but they don't have to be. You could have, like, a behavioral health tech that has no education do it legally. So that initial hold, the 72 hour hold, is typically initiated by law enforcement.

Then you're, the law requires you to be transported to a designated facility, a mental health facility, doesn't happen. People sit in ERs a lot, um, for a number of reasons. So then you go to the hospital, you're supposed to get an evaluation. That evaluation is supposed to determine if you meet the criteria to be on a hold and also if you need to be on a hold, or if you will accept voluntary treatment. 

Jesse: So the 72 hour hold, that's initiated by some sort of, someone with some sort of professional experience, or a police officer, they bring them in. Is that 72 hour hold three business days? 

Clare Cortright: Oh, no, I mean, there's some provisions in the law that say in smaller counties, they can maybe not count some days. It doesn't really work like that in California, 72 hours means, and actually there was a law that clarified it maybe last year. So 72 hours really means 72 hours, or at least it's supposed to. And so then, yeah, so then the next step is you have to have an evaluation by a clinician and that you are supposed to be offered voluntary treatment at the point that they're considering a two week hold. It's just, it doesn't happen, and then it's not enforced. So what you will typically see is everybody gets placed on a hold and then the court system kind of just winnows through whether that hold was legitimate or not, which is what I was doing. 

Jesse: So in California the commitment process is initiated by 5150, which allows a facility to involuntarily detain a person for 72 hours. But what are the parameters of that detention? What criteria is supposed to be used to determine whether or not initiating a 5150 is legally appropriate? 

Clare Cortright: In California, currently under the law, if you suffer from, or someone alleges that you suffer from a mental health disorder, which is undefined, and you are also a danger to yourself, a danger to other people, or what's called gravely disabled, you can be placed on a series of involuntary psychiatric holds. Obviously, those holds would place you in a locked facility where you could be subject to either voluntary treatment, or involuntary treatment, meaning involuntary medication. There's a lot of misconception that mental hospitals do much more other than medicate people, they do not, you don't get therapy in a hospital. It's just, it's shocking and disappointing to many people. 

So with regards to danger to self, we think of that typically as intentional self injury. The law again is vague, it doesn't really define, you know, how imminent this has to be or how serious danger to self. It's also interpreted in California to mean, for instance, like if someone is, let's say that they are experiencing a psychosis that is causing them to be disoriented, or in traffic, right? This is a common thing, people say, well, what if somebody is just running in traffic? Is that danger to self? Even though that person does not have the intentionality to harm themselves but their mental health is related to the way that their life is in danger, that satisfies danger to self in California. That's pretty consistently interpreted. So, even if your self harm is not intentional but your mental illness is the reason why there's some harm that's going to qualify for danger to self. You know, does it have to be imminent and serious? I would say consistently people have that standard in their mind, if you see how judges work, but technically the law doesn't really specify. So you will see a broad range of, like, you know, somebody's in the hospital post a very serious and lethal attempt versus somebody who just has thoughts that they might want to harm themselves, even if that is like kind of a chronic and baseline situation for them. You'll see people, you know, borderline personality disorder, some people that deal with chronic suicidality will end up in the hospital just for thoughts and be like, Hey, look, I've had thoughts for 15 years, never did anything. So, you know, what gives? So it's really, it's a broad spectrum there. 

Danger to others is kind of similar, it can be predictive just like danger to self, right? So we might be putting you in a hospital because although you have not done anything to yourself, we think you’re at risk of it. I'll give an example of somebody that you wouldn't be surprised to see on a danger to others, you know, somebody that's having roommate conflicts in their boarding care home. You know, they have an established serious mental illness diagnosis and they push somebody, or slap somebody, they're going to the hospital for danger to others. Interestingly, it's the least common hold by far. It's also the most common hold to be struck down as baseless. It's also very racist, I could get into that.

But to go back kind of to the legal standard, what grave disability means is a person who, due to a mental illness, is unable to provide for their own food, clothing, and shelter. What it is in practice is there's absolutely no rigor to it, right? Like, and this is just like a random example, it's not because it's the only client. Just before I stopped actively doing defense, the last client that I had was a guy who made $190,000, like, this is legit, right? He wasn't delusional. I mean, $190,000 a year, you know, was housed, was everything, right? And had a longstanding serious mental illness and a very rare instance of psychosis. He was feeling better in the hospital. He's no longer psychotic. Nobody said that he was. And he got called gravely disabled. I had to take him to a hearing to get him out of the hospital. They would not discharge him. I'm like, y'all, he can provide food, clothing and shelter. His mental illness is not interfering with those things, you know, and even if he were completely inside psychosis, he has the resources and the legal standard is, can you access them? So, although grave disability appears to sort of be a standard that says you have to be more than just mentally ill, right? Has to be mentally ill plus. What it is in practice is “We think you're sufficiently mentally ill.”

Jesse: So this criteria; Danger to Self, Danger to Others, and Grave Disability. This criteria creates the broad net of eligibility used to determine whether or not someone can be forced into a 5150. And there are essentially no judicial safeguards in this part of the commitment process. It is also very common for a 5150, which is a 72 hour hold, to lead straight to 14 days of detention. So my next question for Claire was, what happens then? 

Clare Cortright: So when you get to the two week hold, it's the same criteria; Danger to Self, Danger to Others, or Grave Disability. You do have the ability to challenge the hold, but the legal standard is very low. You don't get an attorney, you get an advocate, unless you happen to be in a county that uses attorneys, which is just a few. Santa Clara is one. So you get an advocate, you meet with your advocate, you kind of say, this is why I think this is bogus, this is why I don't meet criteria. Um, the hearing is just done by hearing officers, so they're attorneys that are employees of the court. There's no rules of evidence or procedure, it's not like a real court. The doctors aren't there, the medical professionals who are making these allegations about you are not there. You don't get to cross examine them. Basically, how these things work is you've got a social worker liaison from the hospital that’s going to come in and read from your medical record and everything in that medical record is going to be more or less treated as gospel truth, and then you got to talk your way out of it. So, you know, there's this kind of stereotype of who ends up in hospitals, it's not true. Oh, man, it's all kinds of people for all kinds of reasons and typically people are waiting, you know, four to six days into their two week hold to have a hearing. So you can be in a hospital in California without the ability to legally challenge it or get out, even if it's bogus, you know, for a week, easy. And that can be really catastrophic for people. They lose their jobs, they lose custody of their children, their cars get towed, they can't get them out of a hawk.

I mean, it's really, it can be very, very destructive to people's lives. 

Jesse: That, so that hearing, it’s your first chance to challenge it, it's not in a formal courtroom with a judge. Is that a probable cause hearing?

Clare Cortright: Correct. And what probable cause means, it's a legal standard and it's very low. So what it actually is defined as is a legal standard that says, okay, you're an ordinary, reasonable person, do you have enough evidence without any specialized knowledge? As an ordinary reasonable person, have they presented enough evidence to you that you would, the lowest part of it is, you would strongly suspect that this person is actually mentally ill and as a result of their mental illness meets the criteria of the whole Danger to Self, Danger to Others, Grave Disability, very low standard.

And interestingly, in California, you know, because these psychiatric holds don't have anything to do with you being incompetent, and this is like a common misconception, right? We're doing this to people who aren't competent. No, the law doesn't say that, right? Like, there's all kinds of people with suicidality who are perfectly competent and don't want your services, but they don't have the legal right to refuse medical care despite being competent. So this creates a weirdness, right? Where you get into the hospital, they just want to medicate you. That is what they do. That is the only thing that exists today. Everybody's on medications. If you're not on medications, I'm getting you out of that hospital real fast. But in order to medicate someone in California, you either have to consent or they have to bring what's called a Riese petition, which is a petition to the court to involuntarily medicate you that has a higher legal standard. The doctor does have to show up. You do get cross examined on that. That's a real fight. So, you do end up with weird situations where, like, I lost the hold hearing, you're staying in the hospital, but I won the medication hearing. So then really, what are we here for? Right? So there's this oddness. So, right, you have the whole hold process and the hearings related to the hold, but then secondarily, the medication picture is completely separate. That's how the hospital system has to deal with the fact that we have very clear constitutional precedent that says that competent people have the right to refuse medical care. I think they should have the right to refuse hospitalization if they're competent, but that's not in the law yet, but there's many things many people should be sued for and that's probably one of them. 

Jesse: This system; the 5150, the Riese petition, all of that is essentially woven into the basic fabric of the commitment process in California. And recently there has been a lot of legislative activity focused around the concept that these forms of detention provide too much due process. That it needs to be easier to force someone into this system. And one of the more prominent examples of this accelerated expansion of the commitment systems in California is the CARE Act, which created a new civil court process often referred to as CARE Courts. But what are CARE Courts? And how do they interact with the existing commitment system? 

Clare Cortright: Okay, so the thing about CARE Court is Care CARE and Involuntary Holds, Involuntary Holds are under what's called the Lanterman-Petris-Short Act, or LPS. So, the legal criteria to be in the LPS system; Danger to Self, Danger to Others, Grave Disability, that's the LPS criteria. CARE Court is a completely different legal criteria. It's apples and it's oranges, right? So, CARE Court is, the standard is very low, it's that you're 18. You have a diagnosis in the schizophrenia, uh, spectrum class in the DSM. So that does not include bipolar, it doesn't include major depressive disorder with psychosis, or any other, like, medical cause psychosis, all of that's excluded. It's really going to be, you know, your core sort of schizophrenia, schizoaffective, schizophreniform, delusional disorder, that kind of thing. So, CARE Court, again, 18, schizophrenia spectrum DSM class diagnosis, you're not clinically stabilized in ongoing voluntary treatment. None of that is defined. We don't know what clinically stabilized means, it's just somebody's opinion. Specifically, it's the opinion of the person who's filing the petition, which can be someone as simple as someone you live with. So, like, my roommate could do this. Judicial Council, which interprets laws in California for the court system says, Hey, somebody who's in voluntary treatment, including seeing your psychiatrist, taking your medications, someone who's in voluntary treatment can be in CARE court if the petitioner feels that they're not clinically stabilized. The treatment that they're willing to engage in isn't effective. So, this is a really shockingly low standard. 

And then the last criteria, if you want the minimum, it's like a decision tree. There's a bunch of junk, but let's take the lowest one because that's the broadest. Right? So, the lowest one is we think that you need to be in care court or be under a court ordered treatment plan to prevent you from relapsing into a state where you might be in a hospital, or might be worse off. So this is just super speculative, it's super low. So, it's a very minimal standard to like, you sort of say the magic words, the court looks at the documents and says, if I take all of this as true, does this person meet care court criteria? Yes? Okay. Boom. Now you're in the soup, right? Now you've got to show up to court, all this stuff. 

Jesse: So the criteria used to force someone into the CARE Court process is a different, lower standard of criteria than is used for the 5150. So my next question for Clare was what happens to a person when they are pulled into the CARE Court process? What sort of impact can that type of court order have on the person it targets? 

Clare Cortright: They can order a care plan. What's that? It's what kind of treatment we think you need to engage in. Unspecified. “stabilizing medications”, okay. And then housing, a housing plan. It's the court really saying we can kind of take over your entire life on this. So, you know, if it gets to the stage where the court is actually ordering this plan, the court is issuing an order and you're supposed to comply with it and you're supposed to show up to court periodically. It's usually 60 days for a case management conference, but I guess they could make you show up every day if they wanted to. And we're going to talk about whether you're being a good boy, or person, and whether you're not. And so if you're not, what can they do to you? You know, is kind of the question and the answer is not a lot, right? What does the CARE Act say they can do to you? Well, if you're not participating in your care plan, the court can terminate it. The court can use its power to make you go, the court can 5150 you. It's called Section 5200, but the court cannot 5150 you just for defying them in CARE Court. You have to still meet the legal criteria to be in the hospital. Again, the reason for that is the United States Supreme Court, right? So, you know, it's like, okay, if you don't do your care plan, we could just stop this process because you're not going to participate. We can try to order you to a hospital, and obviously that could be abused, right? Like, the court could just do it even though you don't meet criteria. And then the other thing is that if you don't follow your care plan, we're going to use it as evidence that you are a scofflaw in a conservatorship proceeding.

So, it creates what's called a legal presumption, and they're going to say, look, if you're subsequently in any proceeding under the LPS, including an involuntary hospitalization, we get to use your scofflawing in CARE Court as evidence that you need that process. And that's clearly BS, right? Because these criteria have nothing to do with each other, right? So, it's still oppressive. It's still a violation of people's civil rights. A lot of it is untested, you know, can the court really tell me where I can live because they think I'm not optimally stabilized? Good question, we'll find out. You know, I, I guess what I would want people to know about CARE Court is that it's not every other outpatient treatment law. We have outpatient treatment laws across the country, CARE Court is different because the standard is so low. It's such a low standard, right? That it can happen to people who would never, ever be hospitalized, never, ever have been hospitalized. They can be in the court system. They can also refer to people, so if your conservatorship is ending because you no longer meet criteria to be in a conservatorship, that conservator can petition you into CARE Court. So the court system can have you longer, right? So they can sort of step you down from a conservatorship into CARE Court.

Jesse: So it seems like it's a form of community based court order, really, really low standard, but what strikes me is that it seems like almost by design, it isn't that the court order has some immense teeth to it. It is that it creates a sort of process of information gathering. You're stuck in a process where they're collecting information about you and constantly you have looming over you, because of this court order and because of all these records, at any point we could use that information if we so choose. So the coercion becomes ever present. 

Clare Cortright: Yes, it's absolutely surveillance, and one of the more outrageous things that happened with CARE Court, CARE Court is still under construction. There was a bill in the legislature that passed called Senate Bill 35 from Tom Umberg, Senator Tom Umberg, who's the person that did CARE Court. And what it purported to do is like at this initial stage where the county, you know, when you get a petition filed against you in CARE Court, you don't get any notice initially. You don't even know this is happening. And you're not represented by an attorney. So like, let's say the county is the petitioner, the county is then, this law purports to say that the county has to give the court all your medical records. Not just your mental health records, all your medical records. And only those medical records that support their position that you belong in CARE Court. And this is happening without your knowledge or consent. And then they also placed in there that other providers, if you're not a client of the county, other providers can and sometimes have to turn your medical records over to the county for the purposes of investigating you and prosecuting you in CARE Court. You know, there's so many deep and important issues that people aren't talking about, like, just a fundamental question, you know, when is your private health decision the government's business? We should ask that question, right? Because you can't catch schizophrenia. When are the decisions I'm making about my body or what to put in my body become a matter of public interest? And CARE Court is a real assault on that level because it's not a good reason, right? This isn't a good reason to be in a courtroom, to be hailed into court that someone feels you're not optimally stabilized although you're in voluntary treatment for a mental health disorder. I mean, it's shockingly low. 

And the mentality is as concerning as the black letter law. And what's happening in California, because we are changing the definition of Grave Disability and it's now even more speculative and low, and I will spend just one moment saying what that is. Now you can be considered gravely disabled in California if you don't have a mental health disorder, you have only a serious substance use disorder of any kind, and we feel that you cannot adequately protect yourself. You can't attend to self protection. Now you can be conserved in a locked facility because we feel that your substance use disorder is making it so that you can't protect yourself. Protect yourself from whom? Ask Jordan Neely. 

Jesse: As we brought the interview to a close, I asked Clare if there is anything else about these laws, or about these ongoing legislative efforts, that is important to know? 

Clare Cortright: I will just say briefly, what is happening in California Is we have a very large homeless population. We have plenty of studies to show it's overwhelmingly sane and sober people, but there is a tremendous amount of political pressure to do something, do something about the unhoused, particularly those with substance use disorders or mental illness. And what is emerging now, what just happened during this legislative cycle is the Mental Health Services Act, which is overwhelmingly for voluntary county based public mental health services, it's a third of our system, is being rated to support a bond in part to be operating subsidies for buildings being built under an associated bond, AB 53, that is going to build locked infrastructure.

At the 11th hour, literally, they had 72 hours under the California constitution to have this bill in print before it could be voted on. At 81 hours out they flipped it from it's for voluntary unlocked facilities to all of it can be used for locked facilities. They need to build out locked infrastructure for substance use in California that doesn't exist to support their expansion of involuntary holds and conservatorships for people with substance use disorders.

There is a grand scheme here and for advocates we're looking at this like it is the largest expansion of the carceral state in California ever. 4.34 billion dollars to build out this infrastructure and taking voluntary mental health services money to support it. And if you listen to politicians, right, they are telling you, we think we have 60,000 people who have serious substance use disorder, serious mental illness on the streets. And this is the plan for them. This is the system we're building to deal with this, and it's carceral. 

CARE Court is a sideshow in my opinion. CARE Court is not even the tip of the iceberg on this. 

Jesse: When we first started production on this episode our intent was simply to talk about CARE Courts. But it became quickly apparent that CARE Courts were just one thread being woven into an ever expanding net of commitment laws in California. And those laws, those expansions, frighten me. So over the next few episodes we are going to talk more about these laws. We are going to talk about which parts of the commitment process are going to be expanded. And we're going to try and figure out what it means to try and survive, in California, when almost every single legislator enthusiastically declares that they now consider you committable.

Next time on Committable. 

Olivia Ensign: No matter how many times the proponents of this system want to use the word voluntary or care, it doesn't change the fundamentally coercive nature of CARE Court. 

Lex Steppling: It's a political spectacle rooted in the discomfort or the revulsion of several classes of people rather than the conversation we should all be having, which is like, there are solutions to this actually. They may not be something you understand, but there are answers.

Jesse: Committable is produced by Jim McQuaid, Michelle Stockman, and me, Jesse Mangan. All music is from the Song Reasonable by Christopher G. Brown.

Ohio: The Pendulum is Swinging

Jesse:  Previously, on Committable. 

Kaylyn: So I had been hired in the middle of February to work as a Mental Health Tech, and then at the end of February I had gotten pink slipped. My psychiatrist being called, PD being called, and me being sent to the emergency room. But it got to a point where I was like, I'm doing things that I don't feel are ethical. I mean, it's pediatric psych, right? So legally, you can have a nine year old in seclusion. And we would have nine year olds in seclusion, forcibly medicating minors and putting them in restraints. Like, I would just see that and be like, that could have been me, that easily could have been me.

(intro music from Reasonable by Christopher G. Brown)

Jesse: This is Committable, a podcast about involuntary commitments. I'm Jesse Mangan, and I'm here with Committable producers, Michelle Stockman. 

Michelle: Hello. 

Jesse: And Jim McQuaid. 

Jim: It's Committable and I'm sad. 

(laughter)

Jim: Oh god, everything sucks. 

Jesse: To learn more about why Jim is sad and everything sucks, listen to our previous episode where we spoke with Kaylyn and heard about what she experienced during an involuntary hospitalization in Ohio. And for this episode, in order to better understand the systems that Kaylyn was forced into, we are going to be taking a closer look at mental health laws in Ohio. And to learn more about those laws, I spoke with Franklin Hickman. 

Franklin Hickman: My name is Franklin Hickman, I'm an attorney and I have been working in the area of mental disability law for the past 50 years. I graduated from law school in 1973 at a time when the default setting for mental health care was psychiatric hospitals. And at the time I started working as a lawyer representing patients in civil commitment hearings, there was no due process, or very minimal due process. The average length of stay was 13 years if you were committed and once you were committed you lost all your civil rights. That was true when I started practice in 1973. There have been a lot of changes in the country and in Ohio since that time. And I would say that the situation is significantly improved in many ways, although there are still some areas of concern.

Jesse: When you first started practicing, that was right after the Lessard decision, right after Wyatt v Stickney, but before Donaldson versus O'Connor. Did you see a really sudden shift once like, Donaldson versus O'Connor happened? 

Franklin Hickman: Those cases emphasized the need for due process, especially Lessard, Wyatt v. Stickney was a treatment case, Lessard was a due process case. And there were a number of similar cases brought around the country in the early 70s. But the sequence in Ohio, and I was actually co-counselor on this case, established the right to an attorney before you were civilly committed. And shortly thereafter, what they were doing is having these hearings, and at the time you were found incompetent once you were civilly committed. there was a preliminary hearing, then a final hearing, and the final hearing you were incompetent. And they were getting patients who were assigned counsel to waive their right to counsel. So I was mainly lawyer on the next case that was original habeas in the Ohio Supreme Court, which put a stop to that. And shortly thereafter, the legislature passed a comprehensive reform for the mental health and the developmental disabilities commitment, because that's different. Folks with developmental disabilities have a different process, which is rarely used. But that was the impetus for Ohio's change, and it went along the same general timeline.

My goal when I graduated from law school, I was in Philadelphia at Penn, was to do mental health law. That was what I wanted to do. And I came to Cleveland because Cleveland had a unit that worked in the hospitals for patients who couldn't afford private attorneys. So I was there every day, doing this sort of thing. But yeah, I've been through it. 

Jesse: So the due process protections for people being forced into civil commitments have evolved a lot over the past 50 years. But trauma doesn't know that, right? Trauma still happens even if in the long view things could have been worse. And there are still today a lot of people being harmed by the commitment process. So to help put this all into context, I asked Franklin about mental health laws in Ohio as they exist today. How do these laws work? And what is supposed to happen when someone is pushed into this process? 

Franklin Hickman: What I'm going to do today is talk about the current standards for involuntary and voluntary confinement  and overview of some of the key issues that come up in today's situation. I have to say, by way of contrast, the average length of stay today is measured in days, not in years. And I think the dilemma that we're facing now is people who need care are being discharged very quickly, and the supports that are available in the community are really not sufficient to manage care. Now, I'm not at all advocating going back to the institutional model, because they were dangerous, dangerous places, and how people survived that is something of a mystery to me. I brought several right to treatment suits during the 70s and early 80s and to try to improve conditions, and we never want to go back to those days. So the pendulum is swinging toward shorter stays, and in some cases that's very beneficial. In other cases, I think people are being discharged prematurely. 

So here are the highlights in terms of civil commitment in Ohio, there are essentially three types of admission. There's the voluntary, there's emergency, and there is judicial commitment, which is either through the civil probate process or as a result of criminal charges if a person is found not guilty by reason of insanity, or incompetent to stand trial. I'm not going to cover the criminal in this discussion. I'm just going to talk about the civil commitment. A voluntary admission can be requested by an adult, or a parent can get the child admitted as a voluntary, or a person who has legal guardianship can sign the ward in as a voluntary in Ohio. The Mental Health Board, I'm calling the Alcohol, Drug Abuse and Mental Health Boards, the mental health boards, just for efficiency. But anyway, the Mental Health Board has to approve admissions to a public hospital, but not to a private hospital, for voluntary patients. And the advice I give to patients who are seeking to challenge their hospitalization is that if you sign a voluntary, the chances of you being discharged soon are vastly higher. Cooperation is the surest way of getting an early or appropriate discharge. If there is some question about whether the hospital is willing to discharge a voluntary patient, the patient can ask in a letter for discharge. Hospital staff have to help in this and the hospital has three court days, that would be days that courts are in session, to either file an affidavit or discharge the person. 

Jesse: So in the civil commitment system, there are basically three different ways to be confined inpatient at a psychiatric facility. Emergency, judicial or court ordered, and voluntary. For this conversation, we are going to focus on the emergency route because that is what Kaylyn went through, but much of the same basic criteria exists in all three. So what is the basic criteria that has to be met in order for someone to be confined inpatient in Ohio? 

Franklin Hickman: So the involuntary commitment process has two types, there's the emergency and the court judicial process through probate court. The standard for emergency and the standard for court ordered confinement are based on the same definition, and that is if you are mentally ill and you meet certain criteria then an involuntary commitment can happen. Mental illness is defined as a substantial disorder in thought, mood, perception, orientation, or memory that grossly impairs judgment, behavior, capacity to recognize reality, or ability to meet the ordinary demands of life. That definition runs through the whole civil commitment process. So in order to have an involuntary commitment, you must be mentally ill, number one. And number two, you have to meet one of several criteria, and those are danger to self, danger to others, unable to meet the ordinary demands of life, and there's no community alternative, danger to substantial rights of others. Let's go through each of those criteria.

So, danger to self includes actual attempts at suicide or serious bodily harm, or threats that are credible to serious bodily harm or suicide. So that's pretty straightforward, and that evidence can be based on what a person has done or said, or what somebody has observed the person and how they're acting. Danger to others includes recent behavior that's violent or homicidal, or recent threats that cause reasonable fear of violence or serious bodily harm, or other evidence of present danger. The third criterion is inability to care for self, and this requires a showing of substantial and immediate risk of serious physical harm as a result of a person being unable to meet their basic needs, and there's no alternative. This covers a situation if you have an elderly person with dementia who's living alone, and there's no food in the refrigerator. The person is not capable of making judgments and they're not actively suicidal, but if nothing is done they're going to have serious physical problems, so that's that criterion. The fourth one is risk to substantial rights of self or others. And this is a broader category which requires a showing that the person needs hospital treatment, and would benefit from hospital treatment, by behavior, which shows a grave and imminent risk to substantial rights of self or others. Now, one could argue that the term substantial rights is pretty vague, and in a sense it is. I think if you have a family member who is pacing constantly all night long and making not serious threats but constantly interrupting your ability to carry on in a meaningful way during the day or night, I think that would be a situation that meets the criteria for substantial rights. 

Jesse: So the standards for the involuntary commitment process in Ohio are pretty similar to most other places. Danger to self, danger to others, grave disability, but this fourth one, risk of substantial rights of self or others? That to me seems frighteningly broad. 

Jim: I used to have people who lived above me who had some hardwood floors in the apartment, uh, and the guy was up all night. I mean up all night, it was sort of like midnight, and he'd go to four or five in the morning. And he had a rolling chair, and what he would do is he'd start on one side of the room and he would kick off the wall or the floor, and he would shoot across the floor back and forth all night. And I did not sleep for, like, months. 

Jesse: And I think that if your upstairs neighbor was a person who was believed to have a mental illness, then that activity might qualify them for some form of involuntary confinement under this law. 

Jim: But this gets at this fundamental question of what does it mean to be mentally ill? And, you know, one of the common threads in my field of sociology is that what counts as mental illness really comes down to behaviors that people don't like, violations of social norms and rules. So for a lot of people they enter into the mental health system because they have disrupted an environment where people are supposed to act one way, they act another way. Other people find it upsetting, disturbing, or they somehow intrude on what others are doing, and then that triggers this sequence of events. And so much of mental health, or mental illness, you know, what we see as internal to the “crazy” person, right? It is really, uh, much of it is actually external. It's the structure in which behavior takes place that's defining, I mean, this person is not doing what they're “supposed to’ and so they end up being labeled as crazy. And then the police get called, or a psychiatrist gets involved, or whatever. It's the degree to which hospital staff just ignore that, and if the hospital staff could just try to identify, like really actively try to empathize with and identify with the people that they are treating, and imagine what it's like to be in their situation, hat would go a long way towards, uh, helping these systems run more smoothly and function in a way that would actually help people. Like if you could sit down with the nurse, psychiatrist, whatever, and say, okay, really, I want you to imagine you're at home. You're panicking. The police come. You're put in handcuffs. You're dragged to a police car in front of your neighbors and friends. How would you feel in that situation? You're driven to an Emergency Department where it's not a place where you work, you don't know anybody. You don't know anything. You're shoved into a room, people are giving you pills. Like, what do you think that would feel like? How would you react? How would a person react in that situation? There aren't these attempts to really see like, okay, this person is pacing, are they labile? Or are they scared because they're in a terrifying situation? Are they, you know, hysterical? Or are they a sexual assault survivor who has just been forced to strip their clothes off? But the fact that it's been all this time and that one basic act of empathy and basic attempt to connect on a human level is still missing is just... I don't understand. I don't understand how you can be a nurse, or doctor, or psychiatrist in these contexts and not immediately understand that this person who has just been dragged off the street, or from their home, in a cop car and then stuck for days in an Emergency Room, or whatever. How you can see them being upset and think this is a manifestation of their mental illness and not they're just fucking terrified. Like, how do you document labile, hysterical, whatever? How do you do that and not think for a second about what that person is actually experiencing? I don't know. I don't understand it. 

Michelle: I mean, it's white colonialism 101. Step one is prove that there are some humans inferior to other humans. And once you've proven that to yourself, you don't have to treat those humans the same way you treat other humans, because they are less than you. They are less human. They are less deserving of your empathy, and your humanity, and your understanding. Jesse: Yeah, and I think no matter how well intended a person is, we all adapt to the culture and the systems around us. So a clinician may want to empathize deeply with every person who goes through their ward, but the clinical culture that they are surrounded by may teach them to create distance, to become accustomed to witnessing dehumanizing practices. And that is one of the reasons why I think it's so important to focus on learning these laws, because it isn't always the letter of the law that creates that situation. Often it is the clinical practice handed down from one generation of clinicians to the next, interpreting the law in a way that makes their job more manageable. So for this next segment we're going to hear Franklin describe the emergency process for involuntary confinement in Ohio, which is the path that Kaylyn was subjected to. And as we hear about the different steps involved in this process, while we're listening to the letter of the law, try to compare that to what Kaylyn experienced. Was what she experienced a fluke? A mistake? Or was it what the system was designed to do? 

So here is Franklin Hickman describing the emergency confinement process in Ohio. 

Franklin Hickman: So, let's talk about the emergency procedures. Emergency confinement is available, it's called pink slip in Ohio, you have to show that the person meets the criteria for involuntary court order treatment. Mental illness and one of those criteria that I mentioned. In addition, there has to be a showing of substantial risk of physical harm to sell or others if the person is not immediately confined. There's a fair amount of discretion that can be exercised by the person signing the pink slip, but there was a case that came out of Mansfield a couple decades ago that went up to the Supreme Court, to the Ohio Supreme Court, where the person who signed the emergency affidavit was found to have acted in bad faith. And there was a substantial financial judgment against that person. So it requires a showing that the elements for involuntary confinement are met and that there is a substantial risk, as shown by facts that are listed in the emergency report. Now, there's a limit as to who can initiate an emergency commitment. By way of contrast, a court ordered commitment can be initiated by anybody. You don't have to be in a particular role, or you don't have to be a family member, and you don't actually have to see or personally observe what's going on. It's a much broader scope of who can initiate it. But emergency procedures can only be initiated by a psychiatrist, or a medical doctor, a licensed clinical psychologist, police or sheriff, parole officer, or a person who's been designated as a health officer. The Mental Health Boards have the authority and the duty to appoint folks who are not in the usual safety officer role, or psychiatrist, or psychologist, but with some training to carry out involuntary commitments. So crisis intervention teams will have one or more persons who are designated as health officers who can initiate emergency commitments, pink slips. The statute requires that when an emergency confinement is in process it should be done as inconspicuously as possible. And the person who's being confined needs to be told what's going on, and that they're not being arrested, and that they're going to be interviewed and assessed by mental health professions. And the statute, by the way, is Chapter 5122 of the Ohio Revised Code. 

So, if a person is being taken under the emergency procedures, the authority of the person carrying it out, which is the police officer generally speaking, or the health officer, they can take the person into custody, transport to a hospital, and there is authority to keep a person in a general hospital for no more than 24 hours. Some systems don't have ready access to psychiatric hospitals, so you can take a person to a regular hospital and confine them for up to 24 hours, but they must be placed into a psych setting and evaluated within 24 hours after that. If a person is placed in an emergency status, the hospital has three working days after the initial 24 hour evaluation. So, the person either has to sign a voluntary, or the hospital has to file an affidavit with probate court asking for court ordered commitment, judicial commitment. 

Jesse: So Kaylyn goes to an appointment with a Mental Health Technician. At that appointment she mentions some intrusive thoughts, so the technician calls Kaylyn's psychiatrist. The psychiatrist authorizes a pink slip, police are sent, Kaylyn is involuntarily transported to a general hospital. She's at the general hospital for about 12 hours before being transported to a psych facility for evaluation. 

Jim: Did he say something about how a person has to be seen by a psychiatrist within 24 hours?

Jesse: You can be detained at a general hospital for up to 24 hours before being sent to a psych facility where you are then supposed to be evaluated within 24 hours. 

Jim: Okay, so it's not within 24 hours of getting picked up, it's within 24 hours at the psych facility. And is that a business day? Or does the weekend count for that?

Jesse: Business days, and Kaylyn arrived at the psych facility around midnight on a Thursday, and 24 hours after that might have fallen on really late Friday night, or really early Saturday morning. 

Michelle: We already learned people stop existing on weekends. 

Jesse: Right, weekends don't count. So Kaylyn wasn't actually evaluated by a psychiatrist until Monday. And that is the system doing exactly what it is expected to do. 

Michelle: I mean, I feel like so much of this rolls back to other points we've made previously, you know? About how much of this process is about legally covering the ass of somebody who just gets scared, you know? Like, I would be very curious what this technician actually said to the psychiatrist. Because I see the potential for this scenario to have been basically, uh oh, I'm the last person to have contact with this person. I don't want them to kill themselves because then I might be legally culpable. So, I'm gonna call the psychiatrist, tell them what a dire situation we have, so that I've done my due diligence to not get screwed and now the psychiatrist is gonna take care of it. And the psychiatrist is hearing, whoa, here's someone super scared. Oh shit, I don't wanna get into legal trouble. 

I also, as a queer single person, just also wanna highlight the importance of, she was married. And that made a huge difference. The fact that she could say she had a husband waiting at home mattered more than other things that she could have said. 

Yeah, and as we bring this episode to a close, I wanted to return to the interview with Franklin Hickman to hear about the civil commitment hearing. Kaylyn was convinced to sign a voluntary, so she never experienced this part of the process, but things easily could have gone differently and I think it is important for us to learn more about what could have happened. So here is Franklin Hickman talking about the civil commitment hearing process in Ohio.

Franklin Hickman: So the hearing process, and this has changed over time, there is a single hearing that is to be held within five court days unless it's waived. And if it's waived there's a hearing 30 days from the date of detention. A person who's involuntarily committed, and this would be if you're going through a judicial process that started either with an emergency or with an affidavit, you have a right to counsel. You have a right to an independent expert evaluation, and that is huge. If you have a regular treating physician, for example, who knows you, you could bring that person in. If you don't have somebody that you can afford, the court will appoint an independent evaluator to check to see whether or not you meet the criteria, and the standard for commitment is clear and convincing evidence. Clear and convincing evidence is in between criminal, which is beyond a reasonable doubt, and civil, which is preponderance. Preponderance is just anything above 50%, beyond a reasonable doubt is way up there, and clear and convincing is somewhere in between. It's kind of a squishy concept, but it's more than the civil standard, less than the criminal standard. And the board, the Mental Health Board, has the burden of proof of showing the person is mentally ill, subject to court order, and that the hospital is the least restrictive alternative which is available and appropriate for the individual. So, once a person is found to meet the criteria for, uh, mentally ill and subject to court order, the person is placed by the court based on the diagnosis, the prognosis, the treatment plan, and has to take into account preferences of the responding.

Now there is a tool, it's essentially akin to a power of attorney that's specific for mentally ill folks. It allows a person to say, while they're competent, here are my treatment preferences. Here's my preferences for physicians, here are my preferences for medication. I've been preaching this for years, but it isn't widely accepted by doctors. But that should be taken into account if that is in existence by the court.

Jesse: And is that the equivalent of an advanced directive? 

Franklin Hickman: Yeah, it's a mental health declaration it's called. And it's got a lot of protections. So the court places the person in the least restrictive available and appropriate placement consistent with the treatment goals, and the court has to specify if an institutional placement is required. The statute is clear that the civil commitment can be to a hospital, to an outside community agency, and even to an individual therapist, which doesn't happen very often, but it's within the scope of the authority of the court to place somebody and order outpatient commitment.

Jesse: The other side, that's the county? The county is pursuing the commitment? 

Franklin Hickman: The Mental Health Board. 

Jesse: And are they elected? Or appointed? 

Franklin Hickman: They're appointed. There's 88 counties in Ohio and the mental health boards, and again, it's the Alcohol, Drug Abuse, and Mental Health Boards, ADAMH boards, often have multiple counties involved. There are, I think, 50 or 51 mental health boards in the 88 counties, so many of the counties have combined to a single board. And ADAMH board members are appointed, some by probate court, some by the Department of Mental Health, and some by the county commissioners. Now, once the order is there, there's a review process. You know, by way of contrast, back in the bad old days, that final hearing was it you were incompetent. So there was no review and you couldn't ask for a review because you were incompetent. It was a problem. So, the hearing process now, you have the initial hearing, which is mandatory, and that can happen within five days or at least no later than 30 days after confinement. That's the initial hearing. Then 90 days after the initial hearing there is a mandatory hearing. At the mandatory hearing, you have all the same rights that you had in the initial hearing, including independent expert evaluation, right to counsel. And every two years there is a mandatory hearing. In between, you can ask for a hearing and get a hearing every six months. And at any of these hearings the burden of proof is the same as it is in the initial hearing. So, if you ask for a hearing six months after your 90 day hearing, the ADAMH board has to demonstrate by clear and convincing evidence that you meet all of the criteria. 

Jesse: Okay. So, final thoughts on Ohio? 

Jim: Yeah, so I feel like maybe I'm mad at the system as a whole and not so much Ohio right now. 

Michelle: I mean, I'm not walking away from it like I did Arizona where I want to say I will never travel to this state and also, can I call every single person in Arizona and be like, get out, get out while you can. So I suppose that's a win, but it's all the more challenging to hear the personal stories, which makes them all the more important. And I really hope that if anyone else has had a similar experience, like please know we want to hear from you. We want to hear from you and we want to get angry on your behalf. 

Jesse: So next time on Committable, we'll be looking at mental health laws in Vermont. 

Jim: Vermont seems, seems safe. 

Michelle: Jim, warning! Warning! 

Jim: Is that a general warning? Or do you know something about Vermont?

Michelle: You are safe nowhere in the United States, or Canada. 

Jesse: And that is what we'll be talking about more next time.

Jesse: Committable is produced by Jim McQuaid. Michelle Stockman and me, Jesse Mangan. All music is from the song Reasonable by Christopher G. Brown.

Ohio: You're a Psych Patient Now

Jesse: Jim, Michelle, if you were involuntarily hospitalized, who would be your first phone call? 

Michelle: Okay, number one, this is Committable. Number two…

(laughter)

Michelle: I mean, honestly, the reality is I don't know because in that situation, I'm not okay and I'm not going to be thinking straight and I'm going to be panicking. And I've often thought to myself, genuinely the only telephone number I still have memorized is my parents and they will be utterly useless. They will actually be worse than useless. They will do active damage. I keep trying to memorize more numbers, and it's not happening. 

Jim: I panicked when you said we're going to introduce the show slightly differently. 

(laughter)

Jim: Being confronted with, who would you call an involuntary commitment situation? I don't, like, I can't even imagine. 

Michelle: There is an immediate need for comfort. Like there's this immediate, it's almost irrelevant who will do the most benefit, and it's more like who will make me feel the illusion of any semblance of safety and comfort in this moment. Even if they won't be able to actually accomplish anything. Like, who will calm me down? 

Jesse: And I think that is a big part of why it is so coercively powerful when, in these types of situations, a clinician says, If you sign this voluntary, You'll probably get out sooner. 

Michelle: And that paper, like, that paper would symbolize that as well. Like, that would be a trained professional, that I would see as a trained professional, saying, here is this lifeline of comfort for you. Like, if you sign this, everything's gonna be okay. And I would go, Great. My sole purpose right now is to feel like everything's gonna be okay. Thank you for giving me what is clearly the ticket to feeling that way, even though it's actually completely fucking you over. Jim: Just to remind people that one thing that you're probably not gonna be reminded of is that, you know, there should be a phone number posted somewhere, and if it's not it should be available somewhere where there is going to be an organization that's going to have advocates and lawyers and others who you should be able to call. And who can send someone over and advocate on your behalf. I mean, how effective they're gonna be able to be is kind of up in the air, but they're going to be presumably in your corner. So, you know, the kind of advocates and things that have shown up on the show. They're people you can call. 

Michelle: Can I have the Disability Law Center number just like tattooed on me? 

Jesse: You can, and the Disability Law Center is a great resource for people in Massachusetts to be aware of because it is the State Protection and Advocacy Organization. But within the first few days of an involuntary hospitalization I believe the organization more set up to respond to that would be the Mental Health Legal Advisors Committee. Unless what you're looking for is the organization that will be assisting you in your legal defense at a commitment hearing, in which case that would be the Committee for Public Counsel Services. But all of those would just be for Massachusetts. 

Jim: That's just Massachusetts?!

Michelle: Yeah, we are just in Massachusetts. 

Jim: All right, 49 more to go. 

(laughter)

Jesse: So the complexity of this question, how frighteningly overwhelming it can be, that is the mindset that I want us to be thinking about as we go into the episode, which is about to start right now.

(intro music from Reasonable by Christopher G. Brown)

Jesse: This is Committable, a podcast about involuntary commitments. I'm Jesse Mangan, and I'm here with Committable producers Michelle Stockman. 

Michelle: Hello! 

Jesse: And Jim McQuaid. 

Jim: Goddammit, can I just add, Michelle's first one, when she said hello, I felt like there was an element of like, look how easy it is, Jim! 

Michelle: Correct.

Jim: Excellent. 

(laughter)

Jim: I am so good at this. 

Michelle: You’re crushing it. 

Jesse: So for this episode, we are going to be hearing the story of someone who was involuntarily hospitalized in Ohio. And we're going to learn about the impact that process can have on a person asking for help. 

Jim: So this is someone who reached out to you, had been committed, and...

Jesse: Right, this is a conversation about what happened to Kaylyn. 

Kaylyn: My name is Kaylyn. I am a, um, well, I was a mental health tech at a local pediatric hospital and I worked on their inpatient psychiatric floor. 

Jesse: You were a mental health tech, but you went into that with some personal experience. Do you want to talk about that personal experience? And say whatever you're comfortable sharing.

Kaylyn: Yeah. So I had been hired in the middle of February to work as a mental health tech. And then at the end of February I had gotten pink slipped, which in Ohio, that's the involuntary commitment paper, right? So, I got discharged March 1st, and then two weeks after that I started my orientation. So it was very, very fresh.

Jesse: What drew you to want to work in that sort of setting? 

Kaylyn: I have always been interested in mental health and in college I was going to be a counselor, and then I decided, no, I don't want to do that, I'm going to be a psych NP. So now I'm in nursing school, but I've just always had an interest in mental health. And I've gotten more of an interest in psychiatry as I'm doing some medical stuff with nursing. 

Jesse: What happened that led to you being pink slipped before you started work? 

Kaylyn: So I was getting TMS treatment for treatment resistant depression, and I had been doing really well, like the treatment was working. And my husband was going out of town one weekend, and I knew he was going and it was fine, but then my roommate told me last minute, like hey I'm going to be out of town this weekend too. So my brain just instantly went, whoa, you could do this, this and that, and then, like, be done. And that really freaked me out and I didn't want to do that. So I had mentioned to the TMS tech, my intention was to ask them how I should approach my therapist with that, but the result was my psychiatrist being called, PD being called and me being sent to the emergency room. And then I think by the time I was with police, like I was no longer a reliable person, so it didn't matter. It was, well, you're a psych patient now, so whatever you say we're taking with a grain of salt because your psychiatrist said this, and that's what's true. But I had never spoken to my psychiatrist during the whole ordeal, which is my favorite part.

Jesse: So you have this conversation, this process is initiated, then what happens? Do police come to your home? 

Kaylyn: No, I was still at the TMS clinic. So the tech had asked me to go sit in the office and wait. So she had, like, attempted to safety plan with me, but I did not realize that's what was happening. Like she was asking me, could you go stay with a friend? Could you go stay at your parents? And I was like, no, I don't need a babysitter. I just need to talk to my therapist. And then she called my psychiatrist. And then about 20 minutes later, police are coming into the room and nobody, like, I had no idea that that was going to happen. 

Jesse: What happens then? Do the police understand the situation?

Kaylyn: I don't think that these police really understood the situation. The one officer accused me of attention seeking, because when they started asking me, did you say this, did you have these thoughts? And obviously I'm going to deny everything. Cause I don't want to go to the hospital. So I was like, no, no, no. And they're like, oh, so you're attention seeking? And I was like, Does it look like I want this attention? Does it look like I'm enjoying this? Yeah, and then they went through all my stuff. You're supposed to be able to have the least public, the most private way possible to be sent to the hospital, right? But the police car was on the side of a busy road. a couple blocks down from where I live and they had to pat me down, and throw me in the back of the police car. And they told me, and this is the other thing that I found about psychiatry and counseling is there's an illusion of choice, but a lot of times there's not really. Like they told me, look, you have a choice to come with us on your own, or we're going to have to take you involuntarily and forcibly. That's not a choice. Like you just told me, I can walk with you or you're going to put handcuffs on me. 

Jesse: There seems to not really be awareness of the authority in that situation, the power imbalance. Like if someone comes up to me and says, I'm about to take your freedoms away, I'll do whatever I can to try and avoid that. It's not a fair or reasonable situation. There isn't really a choice. As long as that legal authority exists, I'm in self preservation mode. 

Kaylyn: That's exactly what happened. When I got to the hospital I told them, look, if this is the alternative, I will do whatever. I will sign whatever you want me to. I'll call however often I need to for safety checks. Like just, going to the hospital is the worst thing that you could do for me. I had, um, extreme paranoia at one point about like, I just was convinced everybody was trying to send me to the mental hospital and I had just, like, gotten over that. And then this happened and I was like, oh, maybe it wasn't so irrational of a thought?

Jim: One thing in particular that really jumped out, you know, this is just a theme that pops up again and again, is that the moment you're a, you know, a mental patient or a “crazy person”, which happens well before you end up at the hospital, right? I mean, the moment the police show up, you've been predefined as, you know, “crazy” or whatever, but regardless of what the particular label is, you're no longer a reliable person. And I just thought that was a really powerful phrase that just captures so many people's experiences. 

Jesse: Yeah, there are so many similarities to other stories we've heard, like Cassidy's story in season two. 

Michelle: I mean, I think she possibly even used some of the same phrasing as Cassidy, which was essentially, you know, both of them being put in a situation where they're trying to just tell someone, you have to believe me, this is the worst thing that you could do to me right now. Here are all of the other things that I am willing to do. All of the other, like, ridiculous measures that I am willing to go through to convince you that I'm going to be okay for this limited window of time. But whatever you do, just don't do the one thing that is absolutely the worst thing that you could do for me and having that not be, you know, acknowledged or listened to, or adhered to. And it always reminds me of these times that we talk in every state about these, like, least restrictive things of, oh, let's make sure that we've exhausted all of these other possibilities before we go to this worst case scenario. And these are just two perfect examples of people who are saying, like, yeah, can we please just run through other options that we know are possible right now before you go to this one that I know is going to be worse. Like, I promise you I can find a way to cooperate with you in one of those 7, 999 other options. 

Jesse: Yeah, these systems are not designed for adaptability. Typically once it starts you are just caught in the process until it's done with you. And so, Kaylyn had gone to a scheduled appointment that ended up with her being taken by police To a hospital. So what happens then? 

Kaylyn: They put me in an ED room with the lights turned off and the curtains drawn, because if you're a psych patient you need no stimulation, right? There's a one-to-one with me and they tried to get me to give them my clothes and I would not, so they just gave me a hospital gown. And then they do like blood tests and vitals and an EKG, but nobody had ever told me that that's what they were doing. Like, they just come into the room and like to do things to me and I was like, Oh, okay. And at this point I'm just like, I need to be as cooperative as possible because I don't want this to go any further. So, yeah, it was very much just like you're a patient, we just have to get in here and do our things so we can transfer you to a psych ward. 

Jesse: Did you feel like someone was actually trying to listen to you and hear what you needed during that process? 

Kaylyn: No, the ED physician actually came in with the pink slip and read it to me, and he was like, how am I not supposed to admit you? Your psychiatrist wrote this. And I said, okay, he never talked to me first off, like, this is the situation right now. And then he said he would think about it. And he came back a couple hours later and he said, honestly, I'm an ED physician, I don't feel comfortable overriding your psychiatrist. And there are no psychiatrists in that hospital, I know that. I think there's maybe one psych NP, but she didn't evaluate me, she came in and told me that they were looking for placement. 

Jesse: So the process is happening and you're just sort of caught in it. What happens next once they do decide that they're looking for placement? How long are you in the ED? And then what happens?

Kaylyn: I think I was in the ED for about 12 hours and then they had EMS come take me. And I overheard at the nurse's station, my nurse saying that I was hysterical, which I was not, I was just very anxious. And I told him when the EMS came in, I was like, for the record, I'm not hysterical, I'm just anxious and sad. And so I had like an hour ambulance ride to the hospital that they put me at, and I got there in like the middle of the night and they kind of threw me in a room, had me take off my clothes and then they were like, okay, what's going on? And I was like, I don't know. I was just trying to talk to my therapist, then the police came and now I'm in the hospital an hour away from where I live. And I was like, I want to speak to a psychiatrist right now. And at the time they were like, there's no psychiatrist here. And now I know they're on call, but that, you know, you wouldn't have gotten that opportunity at midnight. So either way, I was destined to stay the night there. And it was a Thursday, so the next day on Friday, like the doctor never saw me, it was an NP and her psych exam was very short. I was in a continuing state of like panic attack, coming down, panic attack, coming down. So I was, I probably appeared very unstable, but it was just, I was literally living my worst fear, right? With nobody around me, I didn't tell anyone. I told one friend, but other than that nobody knew but my husband. So like, I couldn't call my dad and be like, Hey dad, get me out of here. You know what I mean? There was no support. So I was just very freaked out and you know, I go into this interview still kind of like trying not to cry, but very much crying and the NP says, do you want to do this at a different time? And then she offers me an Ativan, and I swear, the amount of times I was offered an Ativan at that hospital? Insane. Anytime you're upset, do you want an Ativan? It's not, do you want to process it? It’s not, do you want to talk about what's going on? It's, do you want some meds? 

Jesse: So, you arrive at the hospital, the psych facility, on a Thursday. And I'm assuming it's a 48? Or 72 hour hold?

Kaylyn: Yep. 

Jesse: 72, okay. 

Kaylyn: And I didn't know this yet. I had like, my only experience was with psychology and counseling, not like medicine and psychiatry and hospitals. So there was this guy that told me, I was like, okay, well, I guess I get out on Monday. Um, no, it wasn't, it was the NP. I was like, oh, I guess I get out on Monday. Right? And she was like, well, no, cause the weekend doesn't count. So, soonest you could get out is Wednesday. And then I had someone else tell me the soonest was Tuesday. And then someone else told me, well, you signed in voluntarily, that means it's null and void, you can leave whenever you want. And it was just like, everybody would give me different answers. It was so confusing and I had no idea what they're looking for in discharge. So every time someone comes up and talks to me, I'm just like, dude, get me out of here. I don't need to be here. This is not what I need. So yeah, the doctor saw me on Monday, that was the first time I had talked to a psychiatrist and he said, honestly, your psychiatrist wrote this pink slip. He thinks you need to be here for 72 hours and he knows you best, is what they said to me. And I was like, okay, first off, I've technically been here 72 hours, because, you know, it might not count for you, but I was still existing this weekend. And, I don't know, the psychiatrist knows you best? Like I'm literally telling you about myself and telling you, like, what I'm feeling and what's happening. And you're going to go off of a piece of paper because they know me best.

Jesse: Something that really resonated with me was “It might not count for you, but I was still existing this weekend.” I have never understood why facilities are allowed to do that. If you don't have the resources to release me during the weekend, then you shouldn't be allowed to detain me during the weekend. 

Jim: I keep thinking I must have lost my capacity to get really mad with this stuff, but I'm really finding myself just, like, I feel really angry and furious right now. But also it's this, like, impotent kind of anger because I don't know what to do about it. This is happening to people. There are people in this situation right this very second. There are many, many people all over the place. It's routine, it's just what they do. I don't know, it's fucking infuriating and I hate it. 

Jesse: That feeling of being helpless when faced with something that you know is wrong? For me, that continues to be one of the most painful parts of being involuntarily hospitalized. But the very first thing that happened to me when I was forced into a psych facility was a nurse asking me to sign myself in as voluntary. So my next question for Kaylyn was, what happened when you first arrived at the psych facility? Did someone immediately ask you to sign yourself in? 

Kaylyn: No, they pretty much just took me to a room when I got there because it was so late, which was, I don't know, when we admit patients we give them, like, they're in scrubs. They're fully clothed, but like they have me take off all my clothes and just give me a hospital gown that was open in the back. So they have me walking down the hall with a male nurse behind me and it was very uncomfortable. But anyway, so they took me to the room and then the next day I saw a social worker and she was like, here, you can sign in voluntarily. And I was like, okay, what does that mean? And she said, well, it just looks good, it looks like you want the treatment. I was like, okay, good, cool, does that get me out soon? And she's like, well, it might. So I just signed, I don't think I read anything I signed ever at that hospital. 

Jesse: Did anyone at that point, or afterwards explain to you what being voluntary meant? What that status meant, what you could do to try to get out? 

Kaylyn: A little bit, but not correctly, like the OT, I guess, did an interview with me and I was asking, I just asked everyone, like, how do I get discharged? What do I need to do to get discharged? And she was like, well, you signed in voluntarily, right? And I was like, yeah. And she said, well, that makes your involuntary commitment null and void. That cancels the pink slip. So in my understanding, I'm like, Oh, so I'm just a medical patient, so I could leave AMA, right? But no, I talked to a nurse later that day and she's like, no, that's not how it works. You are still here until you see the psychiatrist. 

Jesse: Okay, so do you speak to a psychiatrist on Monday? What happens then? 

Kaylyn: Literally nothing, I was so discouraged after that meeting and like, what's so frustrating about it is I understand the reason the pink slip was signed. I get why my psychiatrist had to sign that. But he explained to me later, like, that's not the process that should have happened. You should have been evaluated because I couldn't evaluate you, so I signed that so you could get evaluated. But nobody really evaluated me. I don't know, the NP did the first day technically, but it was like three minutes and she just asked me very standard history questions and then recorded that I was labile and crying and anxious. So yeah, the psychiatrist was very much like, yeah, we're going to keep you the length of your pink slip because that's what your psychiatrist thinks. 

Jesse: I have a personal animosity towards the term labile. It's such like, a broad nonsensical term of displaying a complete lack of understanding how people react to stressful situations. Kaylyn: Yeah, I have a very strong feeling about that. Like whenever I would chart on patients, I would never use labile, I would never check that box. They make it out like it's a subjective medical diagnosis, but it's really, I mean, psychiatry in a lot of ways is very subjective. And it's scary that your rights are in the hands of these people who have really high liability for letting you go, right? Or aren't psychiatrists at all, like the ED doctor, I wouldn't have had to go if he didn't sign that slip. But he was evidently not comfortable doing a mental status exam. 

Jesse: So this whole process started with Kaylyn experiencing intrusive thoughts that she wanted to talk about. Then a mental health tech calls her psychiatrist, that psychiatrist signs an emergency detention order. Then police arrive, she's brought to a general hospital, held there for about 12 hours before being transported to a psych facility but by then, It's a Friday, so she's held for the weekend, and weekends don't count, so she doesn't actually get to speak to a psychiatrist until Monday. So what happens Monday?

Kaylyn: I talked my way out a little early. I talked to the social worker and I was like, listen, this is ridiculous. The big reason that my psychiatrist wrote this pink slip was because my husband was out of town, right? And I would be home alone. Well, he's home on Monday. So now I'm here in this environment that I have told you is like, extremely traumatizing for me and my husband, my support system, is at home. I could be at home safely taking my medications and following my regiment. And she, I guess she talked the team into letting me out a day early, so I got out on Tuesday. 

Jesse: The idea that Tuesday was a day early, given that you got there on Thursday, is distressing. But so, you have a routine, you have a structure that works at home with medications and a support network. How much of that was disrupted in the hospital? Were you able to stay on with your medications and whatever else you needed? 

Kaylyn: No, they actually didn't have my meds for the first day or two, at least. And like, I'd started getting SSRI withdrawal, right? So I asked for a Zofran. They're like, well, we can't do that, they have to order it. I did not know that at the time. So yeah, and in a way it was like, it was taking away from the treatment that I'd been receiving because I was missing TMS appointments. I missed two of them and you're supposed to go regularly for it to work. I wasn't getting all my medications and then when I did get my medications, they just handed me a little cup of pills and like, I didn't recognize a lot of it. So I asked, what's in here? And you know, they told me all my medications and then they said Trazodone, Melatonin. And I was like, I don't take that. And she was like, well, we just give it to everyone because usually people ask for it. And I was like, okay, well, I don't want it, so can you take it back? Like, I don't want sleeping pills. And I was very adamant, like, I'm not being non-compliant with my meds, I just don't need this, like I'm taking all the meds I've been prescribed. And then at one point they had upped one of my prescriptions and they didn't tell me. So when they gave me 20 milligrams instead of 10, I was like, that's not right. And they said, no, they changed it. And I was like, okay, well I'm not comfortable doing that without talking to the person who changed it first. So I was like, very much like, please don't put that I'm non-compliant, just put that I want to speak to the provider about the medication, right? So it was very, very much like you're not involved in your treatment at all. And as an employee, I can tell you that we encourage patients to be involved in their treatment. And reading my patient rights packet for my hospitalization, there's a big section about being involved in your treatment but you're not, you're not consulted. They say they do like team meetings with you, they don't. They said that I had a family meeting. My husband literally never got contacted because they wrote down my cell phone number instead of his cell phone number as the contact. And I don't know why it is that way anymore. I don't know if it's, you know, lack of staff, because that's very much an issue. Or if it's burnout, but it's like, it's not how they present themselves on paper or on their website, right?

Jesse: Yeah, patients rights often seem like one of the first things to get compromised when the system just needs to keep moving. And I think you were absolutely right to question if there's been a change in medication. Unless they're getting a court order to force that medication, there needs to be a consultation about that. There needs to be a conversation about that. 

Kaylyn: And the most frustrating part about it is I got my medical records, and I read through them frequently, but there is a section where they talk about that and like, it says that they had a conversation with me about changing my meds. And like, every time there's an evaluation, it says that they consulted me about side effects, potential, like things that could happen, black box warnings, none of that ever happened. There's a lot of things charted that did not happen. And it's frustrating because I can't go and be like, Hey, this never happened. Who are they going to believe? Me? Who was admitted to a psych ward, or the NP who has a master's degree, right? 

Michelle: So I'm no longer on medication for depression, but was for a while. I personally don't think that I should have been, but that's okay, I still took it dutifully for like a good 10-15 years. And the person that I saw who originally prescribed it for me, first of all, just kept trying to prescribe more like, well, that one's not working? Then, why don't we supplement it with this other drug that will, like, fill in the details of all the drug that this drug's missing? And when that wasn't something I was willing to do, then it was, okay, well, we just need to constantly up your dose. We're just gonna always, like, up your dose. I had to explain this to her, almost every single time I saw her, because the one time that I did, I had extreme negative side effects. In which, like, I was more depressed and suicidal than I had ever been in my entire life. It felt very unnatural. I reached out to her immediately, she said, stop taking it right away. I stopped taking it right away. I felt much better. That small change in the dosage, which I then spent like a good five years reminding her that no, I didn't want to go up on my dosage because the last time we did that, I had a really bad time and it was a really bad idea. But it's just, it's also that they would do it so casually when to me that is such a significant danger is really galling and really concerning.

Jesse: And if Kaylyn had not questioned that change in dosage and there had been some sort of serious problem that resulted, then the story told by the medical records would be that the clinicians did everything they were supposed to. That they did everything right. And maybe that wasn't done in bad faith, maybe that was a miscommunication, or a mistake. 

Jim: But the whole point of things like informed consent, informed consent just as a concept, as an idea, is built on the premise that the conversation is intended to communicate to the person who is receiving the “care” in a way that they can make a decision about it, right? And so the person needs to understand the risks, the benefits, what might happen to them and alternatives. So even if there are alternative versions where the hospital staff are recording those things as conversations about a treatment or something, it's still very much in violation of what informed consent is and what it's supposed to do. And it's really just a way to check the boxes on a list of things that they're supposed to. Check the boxes and say that we did what we're supposed to do, and it's the routine and then we just go home and sleep like babies.

Jesse: I mean often, for me at least, being inpatient felt like just a prolonged period of confinement broken up by instances of someone checking a box. But for most of us, eventually, we do get released. So my last question for Kaylyn was what happened when, eventually, she was released?

Kaylyn: Well, when my husband met me in between the double doors I, like, just fell onto him. And I was like, dude, get me out of here, this is insane, I need to go. And I told him to bring our dog, so the dog was in the car waiting for me, so that was nice. But when I got home it was, like, immediate. I just went into bed and just, like, I just had to reset. I needed to be like, I'm safe now, nobody can get me and nobody's going to come take me away somewhere. And I don't know, it's continued to be like my bed is the only place I feel safe like that anymore. Sometimes I'll get really intrusive thoughts about what happened, even in my living room, and I'm like, no, I got to go lock myself in my bedroom. Because that's the only place that police aren't going to break in and get me. Nobody's going to see me and think, Oh, she's labile, she needs to go to the psych ward. 

Jesse: So you had academic experience, you had essentially studied this, studied this field. Does the personal experience change how you understood the things you studied? Does it change your perspective on that at all? 

Kaylyn: Yes, I have found that once you're labeled a psych patient, like everything is different. You are not reliable, your history is not reliable. You're manipulative, you're attention seeking. I hear a lot of cluster B traits getting put in charts. Like, in school, we're taught to evaluate and write down, you know, what we're noticing objectively. But everything is so subjective, and I didn't realize that until all of these things were being applied to me and I didn't feel they were true. But, so there was one tech at the hospital I was at who was, she is the one who told me the secrets of how you get out and after talking to her, I got out pretty quickly. But, um, I told myself I'm going to be that tech, like, that's going to be me and that's how it's okay for me to do this. And I did, I, I did that for a while, but it got to a point where I was like, I'm doing things that I don't feel are ethical. I mean, it's Pediatric psych, right? So legally you can have a nine year old in seclusion, and we would have nine year olds in seclusion. You know, forcibly medicating minors and putting them in restraints. I would just see that and be like, that could have been me. That easily could have been me. And I was like, I can't do this, this is insane, this is not where I need to be in the system. But I don't know, it did give me perspective on, you know, I always say that a regular day at work for you is the worst day of a patient's life. And I think that a lot of people forget that, especially if they've not had that experience, but I did not have the luxury of forgetting that. 

Jesse: You're in this setting, you're doing the best you can given your personal experiences, like, how long did you last? And how did you last that long? 

Kaylyn: Well, I lasted from the beginning of March until tomorrow's my last shift, so that's almost a year, but I don't know. At first it was really hard, like I remember getting onto the floor for the first time and someone scanning their badge, like expecting me to open the door. And I just stood there because I can't touch this psych floor door, like, that would get me thrown in seclusion. And they're like, you can open the door, I was like, Oh yeah, okay. So it was very weird. It was very weird to be in the nurse's station, on the other side, but I don't know. At first it was hard, and then I think I kind of got numb to it for a bit, and then I just started not being numb to it again, and I was questioning every intervention I would do. I got self aware of charting. I was like, Whoa, wait, this is what they did to me. I'm watching this kid, writing down everything they do. That's what they did to me in the psych ward, like, that's creepy, I don't like that. Yeah, I don't know, and then it's just from there it was like, I had a nine year old who was autistic and she had no emotional regulation. And I had worked with that population previously, I was at a school, so I didn't have security, or psychiatrists, or medications, and I was always able to handle that situation. I don't know, it would always get resolved without seclusion, but this girl ended up in seclusion. And I'm thinking that is so traumatizing for anyone, add on to the fact that she's only nine and she's autistic, so she's got a lot of sensory issues. It broke my heart, she was in the seclusion room just yelling like, “Kaylyn let me out” and I'm like, I can't let you out I'll get fired.

Jesse: So, after your experience of going through the pink slip and then working for almost a year in a pediatric psych setting, how does that impact your longer term career goals? How does that impact the type of thing you want to invest your time in? 

Kaylyn: Well, my intention was to get my RN license, then work in inpatient psych for a bit and then go for my NP and do outpatient. But I have decided I can’t do inpatient, it’s not for me, not even on the medical floors. I can't do it. Especially in Pediatrics because you know, a lot of the times the kids don't want whatever's happening but they're not in control, the parents are, right? And I just like, even if it's a lifesaving intervention, I don't feel right doing something that someone doesn't want done, because I've had that done to me. So I have decided that I'm staying outpatient no matter what, even when I get my license. The role I'm going into now is a lot of prevention and early intervention to keep kids from getting to that acuity. So I'm really excited about that, but I just, I could not work in a setting that was inpatient, I don't think.

Michelle: That's heartbreaking, some of those stories. And I just, I don't know, I don't know the right ways of dealing with these things. I don't know the right thing to do. I don't have an answer for every scenario that's scary, or overwhelming, I just know that the way we're doing things now is so obviously broken and is hurting more people than it's helping. And so we need to rethink things and we need to do things differently. We need to center the people who are going through these things, have been through these things, may go through these things. To get their perspective and to get a better understanding of what the actual needs and wants are. 

Jesse: But often when people hear a story like Kaylyn's they will respond by acknowledging that was bad, but that must be the exception. That's not what's supposed to happen, right? So next time on Committable, we'll be talking to an attorney about mental health laws in Ohio to figure out exactly how this process is supposed to operate. 

Jim: Can it be held accountable? 

Jesse: Yeah, when something like this happens, is there any accountability? 

Jim: Oh, they're not questions, I’ll tell you right now the answer is no, no one will be held accountable, nor could they be. I just, I don't want to spoil anything, but... 

Jesse: Next time…

Jim: Ok.

Jesse: …on Committable.

Jesse: Committable is produced by Jim McQuaid. Michelle Stockman and me, Jesse Mangan. All music is from the song Reasonable by Christopher G. Brown.

S3 Episode 16: Iowa

Jesse:  So, I think one of the things that we haven't talked about much is how mind numbingly boring it can be on a psych ward. 

Jim: Yeah, there's just nothing happening, right? 

Jesse: Yeah, during my last hospitalization, the big event that took days of preparation and negotiation was watching Disney's Aladdin in the common room.

Jim: Can you imagine you're in the psych ward for like months, you know that tomorrow is Aladdin day and then you get discharged, and you're like, God damn it! 

Jesse: That is kind of what being inpatient felt like. It really, really sucks, so you're grasping for some small semblance of hope and just as you're figuring out how to survive this experience, when you figure out how you might be able to navigate this, that is when they push you to the curb and hand you the bill. Which is kind of like what I'm going to do right now with this intro, because what podcast is this?

Jim: This is Committable. 

Jesse: Perfect. And now on to a whole new world…

Jim: Uh huh, Uh huh. 

Jesse: …of mental health laws. 

Jim: Nailed it!

(laughter)

Jesse: This is Committable, a podcast about involuntary commitments. I'm Jesse Mangan, and I'm here with Committable producer Jim McQuaid. 

Jim: This is Jim McQuaid. 

Jesse: And for this episode, we are looking at mental health laws in Iowa. And to learn more about those laws, I spoke with Frank Tenuta. 

Frank Tenuta: My name is Frank Tenuta, I'm a managing attorney with Iowa Legal Aid. Iowa Legal Aid does a number of kinds of things, the biggest areas of law that we practice in are family law, primarily abuse, and landlord tenant housing law. Those are our two biggest areas. We also do a lot with government benefits and we, um, also look a little bit at the rights of people with disabilities. So one of my interests over the years has been people specifically with mental health issues and how the law impacts their lives. 

Jesse: So mental health laws are different in every state, but the commitment process usually begins with some form of detention for evaluation. So I asked Frank, how does that detention for evaluation process work in Iowa?

Frank Tenuta: So, what has to happen to start a process is there has to be a filing by someone called an applicant. And that person has to have at least one other person, or a statement from a physician, or a person who provides mental health treatment services of some kind. So, it takes more than one person to do the commitment. Once that's filed, you know, there's allegations of what the reason for it is, there have to be some factual allegations. In Iowa, generally, essentially, you have to show that the person has a mental illness, it's impairing their judgment, so they're not making good decisions about treatment, and they're posing some kind of danger to themselves or others. So it has to be that dangerous, that's really a constitutional requirement. So once that application is filed, then the clerk takes it and forwards it to a judge who will review it. 

Now, the system works differently in different parts of the state as far as what kind of judge reviews it. It can go to what's called a district court judge, which is the general highest level of trial court in Iowa. Can also go to an associate district court judge, which is a district court judge who has more limited jurisdiction. And then it could go to a magistrate or a hospitalization referee. And again, a magistrate is someone who has even more limited jurisdiction, they're generally part time judges. And a hospitalization referee, I don't even know if we've got any in Iowa anymore. They used to be very common, they're not as common now. That's a person who's an attorney who's just specially appointed to only do the commitment cases. So anyway, it goes to one of these judges and the judge will review it and then the judge has to make an initial decision about whether the person poses such a danger that they should be immediately picked up.

Now I believe that when the statute was written, the notion was that most people would not be picked up immediately, that that would be only the most extreme case and that other people would be told, you need to go for an evaluation and then we're going to have court on such and such a date. Which is usually a little bit down the line, they have to get two days, at least two days notice of the hearing and there may be a time limit but the hearings happen pretty quickly. But what's happened is, practically speaking, almost all of them are immediate pickups in Iowa now. At least that's my experience, and that's the experience of other people I've talked to. So, while not technically required for immediate pickup, that's usually done, and I guess in some ways it's understandable because you have to allege that the person is dangerous in order to get a commitment filing that's going to go past the, sorry, this doesn't meet the criteria initially. So it's quite common that the person is picked up and then they will be placed in some kind of hospital typically where they will be evaluated. There will be a report prepared and that will be submitted to the court at the time of the hearing. 

Also, one of the other, to kind of backtrack because all these things are happening simultaneously. The judge, at the time that they make the decision about whether there's the immediate pickup, also schedules the hearing, there's an order that says when the hearing date is. And then, most importantly, an attorney is appointed to represent the individual. And so, that attorney will try to touch base before the hearing. How often that happens, whether they meet in person or by phone, probably varies a bit depending on the attorney and the time frame. But there should be some communication between the attorney and the person prior to the hearing. And then there will be the hearing at which a determination is made as to whether the case is dismissed or whether it goes forward.

Jesse: So in Iowa, like every state, peace officers can initiate an immediate detention of someone who they suspect meets criteria for an involuntary hospitalization. But in addition to that, there's also an application process where any interested party can go to a court clerk and fill out an application to have someone else detained for evaluation. The person filling out the application is referred to as the applicant, and the person being targeted for hospitalization is referred to as the respondent. 

Jim: Okay.

Jesse: So the application is filled out then presented to some form of judge or magistrate. And if approved the application is sent to the Sheriff's Department and a Sheriff, or Sheriff's Deputy, is then supposed to notify the respondent that there is going to be a hospitalization hearing. And the judge who approves the application can also authorize an immediate detention of the respondent. In which case, when the officer notifies you of the hearing, they will also be taking you into custody.

Jim: Oh, that sounds miserable. 

Jesse: The law does require that the judge consider having the respondent placed in the custody of a relative, a friend, or other suitable person instead of in a facility. But in Iowa, regardless of what setting you are being confined to during that pre-hearing phase, you are going to be examined by a physician or mental health professional, and that examination is supposed to determine whether or not you are “Seriously Mentally Impaired”. They have to determine whether or not you meet any one of the following criteria. 

A. Likely to physically injure the person's self or others if allowed to remain at liberty without treatment. 

B. Likely to inflict serious emotional injury on members of the person's family or others who lack reasonable opportunity to avoid contact with the person with mental illness.

C. Person is unable to satisfy their needs for nourishment, clothing, essential medical care, or shelter so that it is likely that the person will suffer physical injury, physical debilitation, or death. 

D. Has a history of lack of compliance with treatment, and lack of compliance has been a significant factor in the need for emergency hospitalization.

So this criteria is unusually broad, and I have a lot of concerns about how it might be interpreted, but the part that really sticks out to me is the “Likely to inflict serious emotional injury on members of the person's family…”.

Jim: So it's likely serious emotional injury on someone else who isn't going to be in a position to escape from the person. It seems like that could turn into some real ambiguous guidelines, which is a problem across the board in mental health care and commitment where a person can really get committed for really basically anything. Under the right circumstances, with the right interpretation. So, any sort of ambiguity leads to more potential for abuse.

Jesse: Absolutely, and I suspect that this ambiguous language is not completely unintentional. It seems designed to allow for broader use of this involuntary detention authority. And while the detention process is often justified as a way of protecting the person who is being detained, in this instance the criteria specifically identifies the person suspected of being mentally impaired as being a threat to the emotional well being of others.

Jim: Yeah, I mean, this criteria specifically, likely serious injury on other people. I mean, that's explicitly, we are committing you in order to protect other people from emotional injury. Which, I mean, like, we're doing this because we expect you to harm other people. You haven't necessarily, but we expect you to, so we're gonna imprison you. 

Jesse: Yeah, and at this point in the process a person has been pulled into this system, is awaiting their hospitalization hearing, and at some point before that hearing they are evaluated by a physician or mental health professional. So I asked Frank, how much impact does that evaluation have on the hearing?

Frank Tenuta: Right, so what happens is there's a report that needs to be prepared by a medical officer at the facility. That answers all these questions about if they have a diagnosable mental illness, it does happen occasionally that the person will get released immediately after the doctor sees them, if they think there's nothing there, but I don't know that that's real common. And also, I mean, I have to say that we don't do the actual representation in commitment hearings for the most part because of that right to a court appointed attorney. So, if I'm involved, it's usually after the fact when someone's committed and whatever, although I have done some initial proceedings as well. So I'm sorry I got sidetracked there a little bit, but yes, there'll be a report prepared for the court that will come to the court and then there'll be the hearing at which the applicant should be there to testify. The respondent, the person who's alleged to be mentally impaired and their attorney will be present. The court has the ability to keep that a closed hearing and limit who's there, it's also supposed to be an informal hearing. All over the place, at least in time and space that is over my career and across the state as to whether the hearing is actually at a courthouse, in a courtroom, in an office in a courtroom, in a office or separate room at a hospital. And a lot of that may be driven by how the local county or district assigns the cases. One other thing is that there has to be some input from the medical provider, and the code generally provides that the doctor or person doing the report should testify. My experience is that that's frequently waived because there's typically, probably a belief that, you know, if the doctor's report says something that's just what they're gonna say. Or they will testify by telephone. And in my experience, it's all over the map because the code does allow to waive the doctor's presence. So, That's going to come up to, you know, how the process works in any particular location is going to be driven by how it's always been done there, right? Just like anything else. So there's going to be quite a bit of variation there.

Alright, so we go through this process and we've gotten to the point where the court has decided, yes, this person meets the criteria. They lack the judgment to make good treatment decisions. They have a mental impairment. And they do pose a danger to themselves or other people. And then the order will basically be to commit them to a particular place for another period of time, like 15 days or something, and then there's supposed to be another report come back. But there's supposed to be these regular reports, depending on the limitation on the person's liberty, right? So some places are, you know, more confining than others, right? So like a hospital might be the strictest where they're on a locked ward. They might be in some kind of residential facility where they have more general freedoms, and all those kinds of things. So the commitment is supposed to be to the place that they need to be, and it can be adjusted as time goes on based on these reports that come back. Again, that's going to vary quite a bit from place to place as far as where the person typically goes for usually a little more intense treatment to begin with, and then maybe a more residential-like placement afterwards. The other thing that comes into play at this point is funding. Funding is a big driver of what level of services and types of treatment a person might get or not get. 

Jesse: So at the point where a civil commitment is authorized, does the person who is under the civil commitment, do they have access or the right to an attorney during the civil commitment too?

Frank Tenuta: Once the attorney finishes that initial hearing, they typically are excused from further representation of the individual. At that point there is another person called a mental health advocate who is supposed to step into that role somewhat. Now, the mental health advocate typically is not an attorney, but it is someone who by experience and interest is concerned about people who are in the commitment process. And there's a whole association of them across the state and many of them have multiple counties, and they also have extremely high caseloads, and it's their job to try and keep an eye on people as they are in the process. So they do get something if the attorney doesn't stay on at that point. 

Jesse: So a person is pulled into this process, either from some form of emergency detention or by someone filling out an application, which leads to an evaluation by a physician or a mental health professional. And the report generated by this evaluation is presented at the hospitalization hearing. 

Jim: So, I wanted to talk about the doctor's report at some point. I don't know if... 

Jesse: Yeah, go for it. 

Jim: So there's a report produced by medical professionals, the hospital, psychiatrists, the doctor, that gets presented at the hearing and the expectation is that the doctor will also be there to testify. But the judge can waive the doctor's presence and the assumption, or the justification there is that the doctor is just going to say what's in the report. There is a massive problem there though, in that if they're not there you can't ask follow up questions. You can't ask for clarifications. You cannot offer clarifications. You cannot raise any points to try and point out that the doctor maybe acted unfairly, or misinterpreted, or misrepresented something. What if there are problems with the doctor's assessment? What if there is a doctor that is either not acting in good faith, or is acting in good faith but did not put the time and effort into the report that they should have? Or really didn't think things through, or possibly misinterpreted something? I mean, can doctors not misunderstand or misinterpret things that they witness? So, if a doctor reports that a person was, you know, really agitated because of a mental illness and the person could say, hey, wait, I was agitated because I'm a sexual assault survivor, and I had just had someone put their hands all over me because the police brought me in. Or yeah, I seemed really lethargic and out of it because I was asleep. Or they put me on medication that I'd never had, or whatever. The doctor never has to have their respective argument interrogated, or discussed, or questioned. The doctor is never in a position to defend their report. 

Jesse: Yeah, to clarify though, if the clinician doesn't appear at the hearing the respondent and their attorney can still challenge what's in the report. But those challenges are going to be severely limited because as soon as you get to a question that only the clinician can answer, then that line of questioning might just stall out. And an additional element to these hearings is that the county attorney, so the attorney arguing for the commitment, the county attorney can ask that the respondent be removed from the hearing during any testimony that the judge determines is likely to cause the respondent severe emotional trauma. So someone can apply to have you detained on the allegation that you might cause them emotional injury, and then at the hearing where the applicant has to testify about that allegation the judge can have you removed because the judge believes that hearing that testimony might cause you severe emotional trauma.

Jim: The possibility for abuse here is just really pretty, pretty huge. 

Jesse: And that is supposed to be why these legal checks exist, why there is a civil commitment hearing. And if the judge does decide that you need to be committed, then the hospital is supposed to send the court periodic reports about whether or not that commitment needs to continue. So my next question for Frank was, with each one of these periodic reports, do you also get another commitment hearing? 

Frank Tenuta: The simple answer is no, um, but there's a little more complicated answer. And actually, before we get to that, I'm going to sidetrack you again just a little bit, because a person who's been committed does have a right to appeal.

So, uh, depending on if there's a lower level, like if it's a magistrate or hospitalization referee, they get appealed to a district court. If it's straight in district court or associate district, then the appeal is to the Iowa Supreme Court. And then, of course, someone who appealed from a magistrate to the district court, they can still appeal to the Supreme Court after that. So there is an appeal process. It's rare to have something overturned on appeal, would be my experience. Okay, putting that aside, back to this ongoing process, and this is actually related to this idea about where someone gets stuck and how funding comes into play. So a number of years ago, there was a situation where an individual judge ordered someone placed to a particular place and the funder refused to pay for it. And so there became this whole stalemate, which actually wound up in federal court with a successful summary judgment motion in favor of the committed individual against the county and the state requiring that they have something that solves this gridlock thing. And essentially what then happened was we put into place, in Iowa here, a procedure whereby someone can challenge their placement. So when they get placed, these reports come in, it may say they need to continue to stay here, or it may say we want to put them in a different place. The individual who's committed should get a copy of a notice which says, this is the report, if you want to challenge your placement, you can request a hearing. Or the judge, when they look at things, can do a placement hearing. At the placement hearing, then there should be input, you know, from the medical providers and the fiscal providers. And then the judge makes the decision saying, okay, this person needs to go here, even though the fiscal people don't want to pay for it, or you know what this alternative by the fiscal person after we talked to the doctor again, this one will work so we're going to go there. So that's how it's supposed to work. They would get, uh, or can get a court appointed attorney again for that placement hearing, and, you know, sometimes those come up because the person has contacted an attorney and they're not happy with where they are and the attorney's already involved and starts the placement hearing. How common these hearings are? I really couldn't tell you. My experience is that they're probably not as common as they should be, and people frequently get these notices and don't understand them. Or The people who are trying to look out, you know, like relatives or friends don't get the notices or don't understand the process or whatever. The mental health advocates are overloaded, nobody can keep an eye on everything and sometimes people just don't, you know, they get a little bit lost in the system I would say. 

Jesse: Okay, so if at the hearing the judge determines that you do need to be committed for treatment, then the chief medical officer at the facility where you're being detained has 15 days to send the judge a report on whether or not you need to continue to be detained. After that, the chief medical officer has to periodically send additional reports to the court, but these additional reports do not guarantee additional hearings. You can however ask for a placement hearing. Which basically allows whatever entity is responsible for paying for the commitment, whether it be the state, or the county, or Medicaid, or a private insurer, this placement hearing can bring the funder into the process and provide them with an opportunity to say whether or not the placement is appropriate. So, I asked Frank, at these placement hearings, can a funder actually seek to have the patient released? 

Frank Tenuta: Well, unfortunately the history of that is that people, in my opinion, were more interested in getting funding from other sources than necessarily figuring out what was the best placement, okay? So I've been involved in this stuff for years, right? When I started there were mental health institutes, you know, big buildings with many people who are committed in them. We had one in the area close by where I'm at, and that's how I actually got somewhat interested in this, because we got a lot of contact from people who said, I want to get out. You know, over time, probably three things have led to much less institutionalization, right? One is the law, the rights of people who've been committed, especially in the seventies, really expanded and saying, oh, these people have rights not to be locked up unless they're really dangerous, et cetera. Two was improvement in drugs. And three was the cost of institutionalizing people. So those factors early on in my career had an effect of trying to get people out of institutions, and I think a positive factor. But you still have these situations where funding comes into play, and I still hear about some of these around the state. We used to have county funding. We then went to something called regional funding, where the counties were together in regions and the money was still local. Now, just recently, we've changed the funding again, they still have the regions that do kind of the funding decisions, I guess you would say. I mean, it's very technical, way beyond what I can even understand sometimes. And then now they're basically shifting towards more state funding, still using the regions. I generally think that that's been better for people because the smaller the pool of funds, i. e. at the county level, the more difficult it is. Because the counties, they only have so much money, what are they going to do? Right? And so, you know, there was this impetus and this was this case I mentioned to you earlier that what happened was the county didn't want to have to pay, and if the individual was in a nursing home then federal Title 19 would pay. But the individual's needs were more than the nursing home could handle. He was actually posing a danger because of his mental health issues. So he wound up going to the hospital on an emergency basis, so he's on a locked ward in the hospital. Everybody said, OK, we got this other placement, this is where he should go. The county basically didn't think they should have to fund it, so they refused to fund it, and so he was stuck in a hospital. Ironically at a much higher cost than the appropriate placement. Because the fight was about who would pay, not what was the best place, and not what was the cheapest funding, which it turned out that those two things actually coincided in that particular case, right?

So that's how we got into this law that I said about having these hearings for placement and things like that, where those things should be looked at. How much that's really done on an individual basis? I can't say because I'm usually, you know, I'm not as involved in these as I used to be. And it's usually if someone's got a complaint about something, they let me know. I hear from the hospitalization advocates, the mental health advocates, sometimes with some of their frustrations. So got off on a tangent there again for yourself. 

Jesse: So at this point in the civil committment, uh, is the general process that the person who has been committed is just waiting for some medical professional to approve their release?

Frank Tenuta: Yes.

Jesse: Okay.

Frank Tenuta: Yeah, that's the typical situation is then that, you know, and it's at each level, right? So if the person is actually in a hospital, there'll be a report saying this person can be released to this residential care facility, for example. And then they will, you know, unless they object, which there could be a hearing, but then they'll go there. And then again, it's going to be driven by the report. At some point, the doctor may say, Okay, based on all of this, or the chief medical officer of the facility, which a lot of these facilities they don't really have a doctor who's on staff with them. They have a doctor like a lot of the nursing homes, right? That is responsible maybe for multiple nursing homes or they have a side practice and they also do the nursing home. Anyway, at some point, there should be a doctor assigned to that person and then they will make a report that says, okay, we're going to move this person into their own apartment now. And hopefully there's the services in place to try to move them on. And you know, the nice thing is that typically, the more freedom someone gets, the less expense there is. So, there is that kind of push to get them there. And it's not always quite the case, and again, you always have this, who's going to fund this issue that comes into play. Which can kind of be a snag along the way.

Jesse: Okay. So as we wrap up the episode, there are two other aspects of Iowa's mental health laws that I think people should know about. The first is that Iowa will consider a court order for treatment from basically anywhere else in the U.S. as a valid court order in Iowa. 

Jim: Wow, okay. 

Jesse: And the second thing that Iowa does which I think people should know about, is a commission of inquiry. Which is essentially a form that anyone can fill out challenging a commitment. So while pretty much anyone can fill out an application to have you involuntarily hospitalized, pretty much anyone can also fill out a commission of inquiry challenging that hospitalization. 

Jim: Can I say one thing that I think was good about Iowa? 

Jesse: Oh yeah, sure. 

Jim: So the fact that people can, what was this, before the hearing be left in the custody of family or friends?

Jesse: Yeah, pre-hearing, the initial judge can have someone detained in the custody of a family member, friend, or other suitable person. 

Jim: So what we're dealing with, when we look at any given state, we're looking at a regulatory framework, or a system of laws and a mental health system, and institutions, and things that were not built intentionally, right? I mean, they were structured in response to, you know, someone takes an interest in the system, or there's a crisis in the system and they add a law, or they change funding guidelines or whatever. And it's very piecemeal and haphazard and kind of ad hoc. And so you end up with these systems that end up just operating sometimes in bizarre ways, potentially, or ways that are potentially harmful or whatever. But one of the advantages of going state by state is you can kind of identify like, okay, here's a good thing that Iowa does. Even if a lot of what else Iowa does is terrible, but like, in Iowa, people are left in the custody of family and friends, and it works out fine. Right? And in other states that's not happening but, you know, we have these examples of people being left in the custody of family and friends and not being taken in by the police and it's not leading to these horrific circumstances. So, there's a lesson that if we are going to go out there and we're going to build a dream, ideal, mental health system we can still look at Iowa and say look, they do this one thing and we can incorporate that into our perfect system.

Jesse: I don't know that a dream mental health system would have any form of involuntary confinement, but given the practical reality of where most mental health laws are at right now, yeah, being detained at the home of someone who knows you and cares about you definitely seems more appealing than being detained in jail. But there are also a lot of aspects to Iowa's mental health laws that are really concerning.

Jim: Oh, everything else is going right in the garbage. 

(laughter)

Jim: But this one thing, thanks, good job. 

Jesse: Well, there will be plenty more opportunities to find things that we want to throw in the garbage because next time on Committable, we'll be looking at mental health laws in Ohio. 

Jesse: Committable is produced by Jim McQuaid. Michelle Stockman and me, Jesse Mangan. All music is from the song Reasonable by Christopher G. Brown.

S3 Episode 15: Minnesota

Jesse:  Jim, as a professor of sociology, if someone were trying to commit you would you insist that they call you doctor? 

Jim: I actually, when people call my doctor, I kind of cringe in general, but in that situation where I'd be kind of trying to grab onto any shred of power or control, even if it's petty and ridiculous and ultimately, counterproductive. I know that once the situation takes over, it kind of just takes over.

Jesse: Yeah, every time I've tried to resist the commitment process it ends with a whole bunch of crying from me. 

Jim: I would probably also end up crying. 

Jesse: And speaking of sharing tears with a friend while attempting to face oppressive systems of control, what podcast is this?

Jim: Ha!

(laughter from Jesse and Jim)

Jesse: Uh, ready? 

Jim: This is Committable. 

Jesse: And now on to the mental health laws.

Jesse: This is Committable, a podcast about involuntary commitments. I'm Jesse Mangan and I'm here with Committable producer Jim McQuaid. 

Jim: This is Jim McQuaid.

Jesse: And for this episode we are talking about mental health laws in Minnesota and to learn more about those laws, I spoke with Daniel Repka. 

Daniel Repka: Good afternoon, my name is Daniel Repka. I am an attorney licensed to practice in both Minnesota and Wisconsin, I own Repka Law, LLC. We have a location in South St. Paul, Minnesota, and also a location in Hudson, Wisconsin. I practice primarily in the areas of criminal defense and civil commitment defense. 

Jesse: So to start, what is the mental health law in Minnesota called?

Daniel Repka: The civil commitment statute is 253B Minnesota statute, chapter 253B. It's also cited or entitled Minnesota Commitment and Treatment Act. There are also special rules that govern proceedings under that civil commitment act. But what we're really talking about when we're talking about civil commitments is Minnesota statute, chapter 253B, as in bravo. There's also a 253 D, as in delta. Those are indeterminate commitments. I guess there are two types of, of commitments in Minnesota. Number one, you've got what we call determinate commitments. In other words there is an end date to that commitment, the court can only commit a person for so long before the government has to petition for a renewal or continued commitment. Then there's also indeterminate commitment. People who are mentally ill and dangerous, people who  have sexual psychopathic personalities and are sexually dangerous. Those don't have end dates. So essentially, if you're committed under Minnesota statute chapter 253D, you get committed and the only way out is to essentially beg for your freedom. 

Jesse: In that situation with a 253D, is there a much higher standard that has to be met? 

Daniel Repka: Not really. The legal burden of proof, the standard is the same, it's clear and convincing evidence. Now, there are different elements to a determinate commitment versus an indeterminate commitment. There are more elements that the government has to meet for those indeterminate commitments, but the burden of proof is the same, clear and convincing evidence.

Jesse: The commitment process usually begins with some sort of detention for evaluation. How does that detention for evaluation process work in Minnesota? 

Daniel Repka: In my experience, 9 times outta 10, a person is evaluated at the hospital after they experience what we like to call a psychiatric emergency. You're brought to the hospital by ambulance, you're brought to the hospital by law enforcement because you're experiencing this psychiatric emergency, this mental health emergency. And once you arrive at the hospital the physicians there will conduct an interview and an evaluation, and if the physician believes that you might meet criteria for civil commitment based on the behavior that you're exhibiting, that's what triggers the next step for a potential civil commitment. In a case where a person is brought to the hospital and they're interviewed, they're evaluated to determine if they meet criteria for civil commitment, a physician has the authority under Minnesota law to put a hold on you, a hospital hold on you, and that hold can last up to 72 hours. The hospital can't do multiple hospital holds, right? They can't say, Hey, this 72 hours expired. We're gonna do another 72 hours because we really think you need this evaluation. We really think you need this confinement. So within that 72 hour period, The hospital through the nurses and the physicians will document the observed behaviors and then forward that information to the county attorney's office, the county in which the person resides, and it's ultimately up to the county attorney to determine if there's sufficient evidence to move forward on a civil commitment petition.

Jesse: So in this situation, someone is in an ER, or hospital, they've either entered willingly or been brought there against their will, and then they're being evaluated. Is the person doing that evaluation a physician? Does it have to be a physician? 

Daniel Repka: Yes and no. The evaluation report that's submitted to the county attorney's office, yes, it has to be a physician, but the physician is allowed to use the information collected by other medical professionals. Ultimately, when there's a physician's statement signed in support of a civil commitment, the physician has to sign off on it, and the physician has to attest to the fact that he or she observed these certain behaviors that lead to the conclusion that civil commitment is founded. But the physician isn't bound by only his or her observations. The physician is entitled to rely on the medical records generated before the hospitalization, if there are any, and the medical records that are generated during that hospitalization. 

Jesse: So, in Minnesota, the commitment process is divided into several different sections, but often the first interaction that someone has with this process is through a transport hold. A transport hold can be initiated by a police officer, a mental health professional, or pretty much any community member who applies to have someone else detained for evaluation. Once the transport hold is initiated that person will be detained and transported to a facility and they're supposed to be evaluated within 12 hours. And this evaluation can lead to the next step in the commitment process, which is a 72 hour emergency hold authorized by a physician. So my next question for Daniel was, If during that 72 hour emergency hold the physician decides that this person should be committed, what happens then? 

Daniel Repka: At that point the physician signs a statement, forwards it to the county in furtherance of petitioning for civil commitment. It's up to the county attorney through usually their local Department of Human Services to staff the case, to see if there's enough information and ultimately refer it to the actual county attorney who's in charge of making these decisions to pursue a civil commitment petition. If the county attorney is on board with filing a civil commitment petition, then a petition is filed in the district court where the patient resides. At that point, once the petition is filed and the court signs off on it, there's now a new hold, right? The hospital hold, or the physician hold is done, right? A lot of times county attorneys will wait until the very last minute to file this. Once that decision is made to file a civil commitment petition, then you have what's called a court hold. And the court hold can last up to 72 hours until you have what's called a preliminary hearing. The preliminary hearing, the purpose of the preliminary hearing is to determine whether you should remain hospitalized, pending the outcome of the case, or if you can be released pending the outcome of the case. But once that court hold is in place it becomes very difficult to leave at that point. Securing someone's release after a petition has been filed is very difficult until after the case is done. 

Jesse: So this is another 72 hours, which does not include weekends or holidays I assume.

Daniel Repka: Correct. 

Jesse: And at some points that person has the right to a hearing and they should appear before a judge, what does that hearing look like?

Daniel Repka: It's called a preliminary hearing. The preliminary hearing is only to determine whether you pose, essentially, a substantial risk of harm to yourself or others. The burden is on the government to prove that. There are very few cases that I've seen where the government agrees that a person can be released from the hospital pending the outcome of a petition. I've been able to argue it successfully a couple of times, but it's very difficult. So, the hearing looks like this, the county attorney presents evidence to prove that the patient poses a substantial risk of harm to himself, herself, or other people. The county attorney is absolutely entitled to rely on just the medical records, no testimony is needed. They can simply submit the reports to the court. The court can independently review them and then make a decision. The patient, of course, has the right to present evidence at that hearing, but a lot of times because of how little time the patient has with his or her, usually court appointed attorney, there's not a whole lot of evidence to present. So again, I'd say 9.9 times out of 10, a patient is being held at the hospital as a result of that preliminary hearing on a court hold. 

Jesse: What criteria does the physician have to believe is present in order to start that hold?

Daniel Repka: There are certain elements in a civil commitment case that have to be met. When you're facing your initial civil commitment you need to be diagnosed with a mental illness, of course, if we're talking about a mentally ill civil commitment. You know, sidebar here, there are different types of determinate commitments. You've got mental illness commitments, chemical dependency commitments, developmentally delayed commitments. This conversation, or this part of the conversation only focuses on the mentally ill civil commitments. But the physician has to show, or the physician has to attest that a person has an organic disorder of the brain, a mental illness, and as a result of that organic disorder of the brain, as a result of that mental illness, the person is unable to provide the necessary clothing, food, shelter, healthcare, or has exhibited a recent threat or attempt, or succeeded attempt I suppose, at self-harm or harm to others. So there's this recency component, not only do you have to have the mental illness, that organic disorder of the brain, but you also have to have a recent episode of harming yourself, trying to harm yourself, harming somebody else, trying to harm somebody else, or a recent inability to essentially receive the necessities of life, clothing, food, shelter, healthcare.

Jesse: Is there a specific timeframe in which the danger has to be displayed? Like, is it imminent? Does the danger have to exist right now? Or could the danger have existed 30 days ago? 

Daniel Repka: That is a great question. It's just like any answer in the law, it depends. There's never a black and white, especially in civil commitment law. What I tell my colleagues and I tell my clients is that civil commitment law is very squishy, right? There's not a lot of black and white, it's all very soft. I had a case in Minnesota about two years ago where, essentially the person that was petitioned for civil commitment as a chemically dependent person, and very long story short, we didn't have the ultimate civil commitment hearing for like four months. Maybe it was like three months, it was a long time. Part of that was the treatment center actually released my client in error, right? Wasn't supposed to do that. The court said, you know, you're being held until the end of the case, but the treatment center released my client, so he ran, right? I'm outta here. He dusted off his shoulders and I'm outta here. So he ran, he's nowhere to be found, and we didn't have the actual trial until, I believe it was like three months after the petition was filed. It was a very extraordinary case, and that was one of the arguments that we made is, you know, judge, there's no recent attempt here, that was three months ago. How could you possibly call that recent? But through that case, what everyone seemingly learned is that there is no definition of recent. It's very squishy, it's very soft, recent to one judge or one case may be distant to another judge in another case. So, to answer your question, to sum it up, there is no real answer as to what recent means. Imminent is certainly stronger for the government, but the longer time that passes between the incident and the actual hearing, the better it is for the patient who is trying to avoid civil commitment. 

Jesse: So in Minnesota, the mental health law defines a mental illness as “...an organic disorder of the brain, or a clinically significant disorder of thought, mood, perception, orientation, memory, or behavior…”. Which is similar to how mental illness is defined in many other states, but equating a mental illness to an organic disorder of the brain is stigmatizing and dangerous. Because when a mental illness is diagnosed, it's diagnosed based on symptoms. The root cause of those symptoms is usually not known by the person giving the diagnosis. So defining mental illness with a term like organic disorder of the brain broadens the range of conditions so much that it could apply to virtually anything related to psychiatry or neurology. It could apply to symptoms caused by a stroke, or symptoms related to Alzheimer's, or a virus, or bacteria. This term is so broad that it is virtually impossible to disprove, which then allows for physicians to cast a really wide net when forcing people into the commitment process.

Jim: A lot of this just comes down to a doctor or, you know, police or somebody just, they wanna get somebody into the emergency room if they're a cop, or they wanna get somebody committed if they're a physician, and they're gonna just do that regardless of whatever the legal standards are or the processes, like, they're gonna make it happen. And no one's gonna question them because there's, I mean, basically if they're seen to be acting in good faith they can kind of do anything, unless there's some kind of like gross, horrific misconduct. They can kind of do whatever and the worst thing that's gonna happen is the person who they were trying to commit gets released.

Jesse: Yeah, and in this system you can be detained for several days, possibly a week or more, while you're going from transport hold, to emergency physician hold, to court hold, to a preliminary hearing, all before you actually get a commitment hearing, which is probably the closest this system comes to a comprehensive legal check against whatever authority is detaining you. So my next question for Daniel was, What happens at that commitment hearing? 

Daniel Repka: So, at this point now, the burden is on the government to prove by clear and convincing evidence that the respondent meets criteria for civil commitment. And at that point in between the preliminary hearing and the actual civil commitment hearing, the court has to appoint an examiner, a doctor to conduct an evaluation of the respondent. In that evaluation the doctor has access to all of the relevant medical records, and the doctor has access to the respondent by way of an interview. And based on the examiner's review of the medical records as well as the interview of the respondent, the examiner offers an opinion, Hey, does this person meet criteria for civil commitment? And the answer is essentially yes or no, right? If the answer is yes, then we look at whether there is a less restrictive alternative, is there something below commitment that's a good fit for the respondent, even if he or she meets criteria for that civil commitment? If the respondent doesn't like the result of the first court appointed examiner, then the respondent is entitled to a second examiner of his or her choosing. Again, all of these have to be court appointed examiners, so there's a list of examiners that are authorized to conduct these evaluations in the state of Minnesota, but this time you get to pick, Hey, the court picked the first one, I get to pick the second one. And same thing, that second examiner has access to the respondent's medical records, that second examiner has access to the respondent to conduct an interview. And same thing, the second examiner, just like the first one, offers an opinion as to whether the person meets criteria for civil commitment. And if the answer is yes, are there any lesser restrictive alternatives to commitment that meets that respondent's needs? In the interim, more medical records are generated at the hospital. If the person continues to be held at the hospital, those medical records are used at the hearing. In my experience, you can have, again, your support network come in and testify on your behalf to say, Hey, you know, we'll take care of the respondent, no problem. If the person has received psychiatric care or chemical dependency treatment in the past, you can offer that evidence to show that commitment is not necessary here. The legal standard here is relevant evidence is admissible, right? So if you can tie the evidence to how it's relevant to the issue at hand, which is whether the person meets criteria for civil commitment, it comes in, right? And then based on the information presented by the examiners, as well as any other information that's offered at the hearing, the court then has to make a judgment call. Has the government met its burden of proof by clear and convincing evidence to prove that the respondent meets criteria for civil commitment? If the answer is yes, are there any lesser restrictive alternatives? If the answer is yes, then you look at those. If the answer is no, then it's civil commitment. If the ultimate answer to the ultimate question of whether the person meets criteria is no, then the petition is dismissed and the patient/respondent is discharged. 

Jim: I just wanna comment on one thing, and this is something that doesn't just apply to Minnesota but to any context, which I'm guessing is all of them, in which one of the primary criteria are the medical records. There's a big problem there in that if a person, they don't wanna be committed, but the hospital wants to commit them, they are also the ones who are creating the medical records that are being used to determine the appropriateness of commitment. And so, you're looking at evidence created by the group of people who you know has determined what they see as the appropriate outcome, and is what's being fought. So if I'm the person who is fighting the commitment, I am fighting against the “expert” opinion of those who wanna commit me. And the major criterion that's being used are the documents provided by the very people who, you know, want to commit me. So like, The deck is very stacked against the patient there. 

Jesse: Yes, to clarify though, in Minnesota I believe that when the patient is evaluated by a court appointed examiner, that examiner is required to at least attempt to interview the person directly. But yeah, I think you're absolutely right that generally speaking, medical records are as a default considered to be factual and objective when they should be, as a default, at least in this context, scrutinized. 

Jim: And there's a lot of evidence, I mean, there's a lot of research into how medical records are written and the degree to which once something is “formally documented”, how it becomes reality. It becomes, so for instance, we read a report from a physician and we read that report as if it's a piece of objective analysis and diagnosis. We don't think about the fact that that physician may have been, scrawling those words quickly in the middle of a really busy emergency room, with lots of lights and sounds and movement and distractions, and that that person may have been working for 15 hours, and only kind of paying attention to the patient in front of them, right? All that context is lost, and all that remains is this description of behaviors outside of context, outside of meaning from the person being assessed. The creation of medical records, or the generation of medical records, is not an objective rational process, but they appear objective at the end of it. They appear to be neutral evidence, neutral assessments of a person's mental state, behavior, but they're not that. 

Jesse: Yeah, if the story of your life were a film, medical records would be a review of that film as written by a critic. A critic who has the legal authority to forcibly detain you if they don't like what they see.

Jim: Yeah.

Jesse: Okay, so this brings us to the end of the interview with Daniel Repka, where I asked if there's anything else that is important to know about mental health laws in Minnesota. 

Daniel Repka: Yeah, totally, so two things that I think are important to know. Number one is the length of commitment, right? In Minnesota, an initial commitment cannot last longer than six months, but a report is due within 60 to 90 days of the court ordering the commitment. And in that report the social worker for the county has to essentially offer an opinion as to whether further commitment, or continued commitment, is recommended. And if the recommendation is yes, we should continue the commitment, then you have to set a review hearing before the expiration of that six month commitment to determine if continued commitment is appropriate. Continued commitment is another legal term. The continued commitment, if ordered, can last an additional 12 months. So you've got the initial commitment of six months and then it could be extended for another 12 months, so 18 months total. If after the end of that continued commitment, the government still wants you to receive treatment services they have to file what's called a re-commitment petition. So it can be ongoing, right? If there's still evidence that the government feels supports your continued commitment it can be a revolving door, just on and on and on and on. Number two is there is, in the statute, I alluded to this earlier, something that you can file, it's called a 17 petition. It's under Minnesota statute 253B.17, right? Hence the 17. The 17 petition allows for you to ask the court to either discharge you from the commitment, or to order any lesser restrictive alternative, at any time. So you could in theory file successive 17 petitions every week if you wanted to, and you're entitled to a hearing on that petition within 14 days of filing it, and it essentially restarts the process, right? So if you file the 17 petition, the court will appoint an examiner to conduct a review, to offer an opinion as to whether the commitment is appropriate. You have the right to a second opinion, and we have another hearing. The difference between the initial commitment hearing and the 17 petition hearing is that the recency requirement no longer applies, it's the highly likely standard. It's the likely standard instead of the recent standard. But you can argue for dismissal of the commitment at any time after you've been committed. But the standard, so to speak, is much lower because we're not arguing about a  recent attempt at self-harm, harm to others, or an inability to provide the necessities of life, we're talking about the likelihood of that being a problem. 

Jesse: So, the commitment process in Minnesota is still frightening, but the way that they delineate the process into multiple different, fairly clearly defined checkpoints, is actually a more comprehensive system than several of the other states that we've looked at.

Jim: I think they're like, setting a standard for what shouldn't be something aspirational, but is because everything else is so bad.

Jesse: And we'll have plenty of time to talk about how bad some of these systems can get because next time, on Committable, we’ll be looking at mental health laws in Iowa.

Jesse: Committable is produced by Jim McQuaid, Michelle Stockman and me, Jesse Mangan. All music is from the Song Reasonable by Christopher G. Brown.

S3 Episode 14: Oregon

Michelle:  The main thing I think I've learned so far from doing a lot of these interviews is that no matter what state I'm in, I will not voluntarily be committed. Do you think I'm missing a subtlety here? 

Jesse: Well, the subtlety would be that the decision of voluntary or involuntary is a really personal one, with a lot of complicated factors involved, so everyone should be empowered to make that decision for themself. But unfortunately, far too often voluntary is misrepresented and people are coerced into signing that form without really being told what that means. 

Michelle:  And I think it's also a cultural thing. I mean, if someone says to someone else, this person voluntarily committed themselves. Everyone imagines that at any point you could just say, thanks, this was great, I'm gonna bounce. 

Jesse: Right, voluntary does not mean that you can leave whenever you want to, which is another fun fact brought to you by…

Michelle: This is Committable.

Jesse: Perfect, and now onto the music.

Jesse: This is Committable, a podcast about involuntary commitments. I'm Jesse Mangan and I'm here with Committable producer Michelle Stockman. 

Michelle: Uh, I'm just gonna grab a snack. 

Jesse: Wait, what…

Michelle: Popcorn…

Jesse: (laughter)

Michelle: Just pulling up a big old bowl of popcorn for Oregon. Ready!

Jesse: Well, I'm glad you're ready to talk about mental health laws in Oregon because to learn more about those laws I spoke with KC Lewis.

KC Lewis: My name is KC Lewis, I am the managing attorney for the Mental Health Rights Project with Disability Rights Oregon. Disability Rights Oregon is an organization, we're what's called a Protection and Advocacy Agency. So we have a federal mandate to advocate for people with disabilities, protect their rights. And within Disability Rights Oregon my sort of little slice of the organization, the Mental Health Rights Project, focuses specifically on people who are living with mental illness. Advocating for them, helping them advocate for themselves, and enforcing their rights sort of through policy, litigation, however, we need to. I also identify as a person with mental illness myself, which I think is important to what I bring to the work.

Jesse: When looking at mental health laws, we aren't just talking about one isolated process, we're often looking at interlocking systems with many different entry points. And often a person is brought into this interlocking network through some form of detention for evaluation. So I asked KC, how does that detention for evaluation process work in Oregon?

KC Lewis: So on the civil side of things, we have basically a two-party process for people to be committed. So two people have to sort of sign a court document saying like, I have concerns that this person, there's three criteria that a person can meet in order to be civilly committed. They're either a danger to themselves, they're a danger to other people, or they're unable to meet their basic needs. Which means that due to a mental illness, they are not feeding themselves, they're not able to cloth themselves, they're sort of putting themselves in danger due to a lack of ability to take care of themselves. And so once someone is in that system, they can be detained for a period of up to five judicial days, and then they're entitled to a hearing. They will have someone appear on the side of the state to make a case for why they do need to be committed, why they meet those criteria. And then they are also entitled to a lawyer themselves who, if they do not want to be committed, will defend them from being committed. And depending how that goes, they can be committed to the state hospital, they can be committed to a residential program, depending on sort of the level of care that they need. But that's the process by which someone is civilly committed. And I will say that that makes up a relatively small fraction of the people who are committed to the state hospital right now, which is one of the problems with our mental health system currently.

Jesse: So if the people who are being civilly committed make up a small percentage of the people in state hospitals, what is the other percentage of people being committed to state hospitals?

KC Lewis: So there are two other populations. The first one is people who have been found guilty except for insane of a crime. So that's when someone has gone through the entire trial process and basically a court has determined, yes, you did commit this crime, but at the time that you committed it you had a mental illness that prevented you from sort of formulating the mental state that it would be necessary for you to formulate to have that crime. And so those people are committed to the state hospital for sort of a period to serve out as their sentence. But really the point of that is supposed to be to get them well, get them to the point where they can be safely reintroduced into the community and will not be a danger to themselves or others. The other population, and this is the one that's really causing issues in terms of our capacity in our mental healthcare system in general, but particularly at the state hospital, is what's called the Aid and Assist population, or the 370 population. That's named after the law that allows people to be committed. And that is people who have not been convicted of a crime, but they have been accused of a crime and because of a mental illness that they are currently undergoing, they're not able to understand the proceedings against them. So they're basically unable to appear in court and help their defense attorney defend the charges against them. And because they are constitutionally entitled to be able to defend themselves, the case can't go forward if somebody is unable to aid and assist. So when someone is unable to aid and assist, the court will generally send them to the state hospital in order to be restored, or have their capacity restored is what it's called. They basically have to get them back up to a level where they can understand a court proceeding. But unfortunately with the criminalization and mental illness that we've seen in our society, the criminalization of houselessness, which often goes hand in hand with mental illness, the Aid and Assist population in our state hospital has just absolutely exploded over the past decade or so. And currently, if someone is civilly committed, they just literally cannot be sent to the state hospital because there's no room for them. So people who are civilly committed are not currently being served in our state hospital. They're being kept in sort of hospitals all over the state where they're being boarded and given sort of whatever treatment they can. And that's taking up resources that could then be used to serve other people in the community as well. 

Jesse: And do you have a sense of why the Aid and Assist population, why there would be such a rise in that population being sent to state hospitals over the past decade or so? 

KC Lewis: I mean, I really think that the issue is a lack of community mental health resources. So people who should be getting treatment in the community are instead sort of not receiving treatment until they end up in a mental health crisis. And then often when someone is in the mental health crisis, the first people who show up are the police. So the police show up, a person is potentially in a situation where they're trespassing, where they're causing a public disturbance, things like that. Police are not trained to recognize that someone is going through the symptoms of a mental health crisis rather than just committing a crime. And so they end up swept up in this system that really is not designed to serve them. And I think that we've seen that increasing in the past decade. I mean, to give you just some numbers, a decade ago there were three times as many civil commitments in the Oregon State Hospital as there were Aid and Assists in the Oregon State Hospital. Now there are six times as many Aiden and Assists as there are civil commitments. 

Jesse: So the three processes that we're discussing are civil commitments, guilty except for insanity, and Aid and Assist. Civil commitment does not require any allegation of criminal conduct. Guilty except for insanity requires a belief that this person has committed a crime, but was in some way not capable of understanding what was happening when that crime took place. And Aid and Assist refers to situations where a person has been alleged to have committed a crime, is awaiting trial, and then someone involved in that criminal process suspects that this person does not adequately understand the criminal system that they have been forced into. But what is the goal of the Aid and Assist system? Is it designed to restore a person to a place of stability? Or is the goal of Aid and Assist to simply get that person to a point where the criminal trial process can continue?

KC Lewis: Aid and Assist is not a restoration to health, it is a restoration to competency. So when you go to the state hospital on a civil commitment their goal is to get you to the point where you can exist in the community and you can not be a danger to yourself or a danger to others. They are trying to get you healthy. It's the same for a guilty except for insanity, that is their ultimate goal is to restore your mental health. When you go to the state hospital on an Aid and Assist, their goal is to get you to the bare minimum level where you can stand up in court and say, I understand what a judge is, I understand what my defense attorney is here for, I am mentally able to be processed through the criminal justice system. And so what we see, and what we hear from state hospital employees is they see the same people coming through again and again because they never get well. They get to the point of being able to aid and assist, they send them back to the county that they came from, where often they will wait in jail for weeks or months to be able to be taken to trial. And then once they get back to the courtroom, they're not able to aid and assist again because their mental health has been deteriorating in jail. So the Aid and Assist system is sort of a self-perpetuating flawed system where the more people who go into it, the fewer people are getting the actual help they need. And those people just get caught in this revolving door of never quite being well enough to escape from the system, but just constantly sort of getting to this level of being the bare minimum of well where they go back into the criminal justice system.

Jesse: Does that mean that based on an initial allegation of some fairly minor crime they could spend months, if not years, in the facility? Possibly longer than they would've spent in prison if they'd actually been found guilty?

KC Lewis: In almost all cases it will be longer than they would've spent in jail or in prison if they would've been found guilty. And this goes down to a quirk of Oregon sentencing law. So basically if you're found unable to aid and assist and you're being held to be restored, you can only be held for the maximum amount of time that you could potentially spend in jail for that crime. And so for instance, for an A level, the highest level of misdemeanor, the maximum sentence you can get is one year. So they can't hold you in the state hospital longer than a year trying to restore you to being able to aid and assist. The issue with that is that for a lot of people with a short criminal record, or with other sort of mitigating circumstances such as having a mental illness, probably if they had come in and pled guilty to the charge, they probably would've spent a few days in jail, maybe a week. Similarly, if you're looking at higher level stuff, if you're looking at felonies, they can spend three years in the state hospital for Aid and Assist for a C-level felony. The guidelines for those things in terms of our sentencing grid is generally presumptive probation. So that means that they probably would not have spent a day in jail for the crime, but they can spend up to three years at the state hospital trying to get restored to aid and assist.

Jesse: If current competency is the sort of determining factor for someone getting cycled through this system, how do you determine competency? What is the legal definition of competency? 

KC Lewis: So they need to be able to understand the legal proceedings going on, and they need to be able to meaningfully assist in their defense. Which means that they need to be able to communicate with their defense attorney, be able to sort of tell them what happened, be able to make legal decisions in order to have their defense go forward. And once there is doubt as to whether or not someone can aid an assist, and that doubt is often raised either by their defense attorney or by the judge in the case, then there will be an evaluation that is done by a mental health expert to determine whether or not the person is able to aid and assist. If the expert makes a determination that one side or the other doesn't like they can bring in their own experts to make that determination. And then sometimes people are found never able to aid and assist. That's when an expert makes the determination that not only can this person not aid and assist, but their mental health is such that there is no level of restoration that will make them be able to do so. And at that point a criminal case can't go forward against them. But what we see a lot is that prosecutors will contest those findings in order to be able to sort of keep the case going. And so you have people who have been found by experts really to not be appropriate for the criminal justice system, but the criminal justice system, uh, it does not get its claws out of people if it has any way of keeping them in. 

Michelle: I mean, I just want him to be in charge of all of mental health in Oregon. Can we make that happen? 

Jesse: Yeah, yeah, sure, let me just push this mental health czar button right here.

Michelle: Yeah, mental health czar. 

Jesse: Okay, so now that that's solved.

Michelle: Perfect. 

Jesse: We have these three different processes that can have different entry points, different goals, different types of safety concerns. But these three different paths can all lead, potentially, to the same facility. So how do staff and clinicians at a state hospital provide an appropriate environment, and give appropriate attention, to these three different communities?

KC Lewis: So it's been a real struggle for them, and I will say we have been talking to a lot of state hospital employees recently about the issues that they have at the state hospital currently, and there are many of those issues, but the one that really rises to the top for everybody we've talked to is they say, we did not sign up to warehouse people for the criminal justice system. We took these jobs because we wanted to help people get well and we used to be able to do that. We used to be treating a population that was much more balanced between people who are here for their own benefit and people who are here just because the criminal justice system needs us to restore them to competency. And now it's so overwhelmingly shifted the other way that it's really hurting morale at the state hospital. It's really leading to people being very dispirited. We've heard a lot of concerns about them feeling like they haven't received the proper training to be dealing with this different population, but really they filter them. They put them in different cohorts based on why they're there. And they do receive different kinds of treatment because of that, but from what we have heard the people who have been working at the state hospital are very frustrated by the fact that the system has been so thoroughly taken over by these people who are just there for competency restoration.

Jesse: If your goal is to get someone to understand what a court hearing is, and how a court hearing works, are they being put through classes on how a court hearing works while they're in the facility? 

KC Lewis: Yes, there are specific sort of restoration classes. And a lot of the complaints we've heard are, we feel like other classes, other opportunities that we present, would help these people as well. I mean, teaching someone how to be able to sort of emotionally regulate helps prevent them from, you know, yelling in court, which is one of the things that can lead to them being found unable to aid and assist. Just generally sort of helping people deal with their mental illness and be healthier, ultimately long-term helps solve the aid and assist problem too. But the problem is the population has grown so much that the priority is just on moving them through as quickly as possible. And so really as soon as they've gotten them to the point where they can, I mean, I've heard it described as literally there is like a picture of a courtroom. They'll point to the judge and say, what does this person do? And they'll point to the defense attorney and say, what does this person do? And once they've gotten them to the point where they can be able to sort of regurgitate what they're being told about how the court system works, then they're out the door. And often, I mean, the way our court system works with more than 90% of cases ending in plea bargain, they're literally just trying to get them to the point where they can stand them up in front of a judge, have them plead guilty, and then sort of get them out the door so that the next person can come in. So there's this sort of prioritization within the system for people going through the Aid and Assist process, they have to be sent somewhere. They have to be accepted by the jail. They have to be accepted by a state hospital. Which uses up a bunch of the resources so that someone who may or may not be in some sort of distress who's going through the civil commitment process, they might not be able to get into a state hospital.

Jesse: If that's the case, if someone going through a civil commitment process is in some sort of a hospital, an ER somewhere, and they're being evaluated. Do they just stay there until a bed is found? 

KC Lewis: I mean, right now they just stay there until they can be discharged, until they no longer meet the criteria for civil commitment. Because the state hospital isn't taking civil commitment patients, and it hasn't for quite some time. And it doesn't anticipate that it's going to be able to for quite some time. And this gets into the litigation that we're involved in. We have a case that's been going on since 2002, it's called Oregon Advocacy Center versus Mink. We used to be called the Oregon Advocacy Center before we were Disability Rights Oregon. And that was a case where we were looking at people who are under Aid and Assist orders and again, I cannot emphasize enough, these are people who have not been convicted of any crime. These are people who have been accused of something but they have not had their day in court, and people were sitting in jails just waiting to be sent to the state hospital. And the finding in that original 2002 case Mink was that these people have been committed for treatment, they have not been committed for punishment. So you can't keep them in a jail for longer than it is absolutely necessary to make the arrangements to transport them somewhere where they can get treatment. And so what that did was establish a seven day timeline saying basically a person cannot wait in jail longer than seven days to be sent to the Oregon State Hospital because they're not there for punishment, they're there for treatment, and they need to be sent to the place where they can get the treatment. This was fantastic for people who are on Aid and Assist because what we know is that jail is absolutely horrible for their mental health, and often they will deteriorate very quickly in jail. But one of the effects of that also is that the state hospital is prioritizing those people because it has to get them out of jail within seven days. Now, they haven't been in compliance with that order for a while, they're not currently in compliance with that order. But that is one of the realities behind kind of the state hospital population, is they have populations of people who they are constitutionally required to accept. It has recently been found to apply to the guilty except for insane population as well by another federal judge. So the fact that we have this limited resource and the criminal justice system is using up so much of it is an entirely sort of preventable issue. But it requires the criminal justice system to exercise more restraint, and exercise more discretion of who it's actually sending into the system. Because once they're in jail we can't just let them sit there, it's not right and it's not constitutional.

Jesse: In relation to mental health laws, the distinction between punishment and treatment has value. Because it can serve as a sort of litmus test for the conditions of release. But I have also many times heard people argue that expanding mental health laws, adding new ways to strip people of their rights, is a good thing because it's not punishment, it's treatment. But for many of us who have been forced into these systems, the practical reality of that distinction is little more than semantics because being committed often looks, and feels, like punishment. 

Michelle: Yeah, because we don't know how to deal with not liking you in any other way. We don't like you, we don't like your actions. Like, how will you stop doing things we don't like if we don't punish you? Punishment is easy. The things that are hard are things like understanding, and recovery, and forgiveness. And I think we struggle to figure out as a society how to do any of those things.

Jesse: And that connects to my last question in the interview with KC. It is clear that the Aid and Assist system can lead to some horrific outcomes. So what should we be doing differently to actually help the people who are being forced into these systems? 

KC Lewis: So there's a few answers to that. The number one best solution is to create community resources so that people never reach the point of being in the criminal justice system in the first place. And that looks like supportive housing, looks like having people who can help people with medication management, who can provide therapy to them, who can generally keep them from reaching the point of crisis where they have contact with law enforcement. I think the next answer is law enforcement discretion and prosecutorial discretion. When they have contact with people who are clearly in crisis just saying, we don't need to have anything to do with this. And like I said, there's a level at which some police are already doing that, saying we're gonna give this person a ride to where they can get help, but other than that that's what we see as our role being. We don't need to charge them with anything based on behavior that they couldn't help. I think we need to see more of that in sort of the world of the prosecutors, because I don't think that we have nearly as much of that discretion being exercised by criminal prosecutors. I think it's just too easy for them, once they have a case in front of them to say, I'm going to see this through to the end. But the other thing is once we've built up those community resources then even if somebody is in the criminal justice system, we do have an option in our law for community restoration. Which is to say they don't have to go to the state hospital. The judge can say, this person needs to be restored to competency but they can be restored in the community and they can be, you know, they can either stay at a residential facility, or they can go home and they can be doing classes to get them to the point where they're able to go forward with their case. What we're seeing unfortunately is that those resources just don't exist in the community, and so even though judges have that option they're not exercising it because they have nobody to send anyone. And the flip side of that that makes it even more of a good option is that we would then also have places for people to step down to from the state hospital. So instead of them just being sent back to jail once they've been restored to competency, we could have placements for them to go to where they would continue to receive services and receive that continuity of care that we were talking about. So really it all comes down to community resources. And I mean, this just goes back to the history of how we got here in the first place. As we said we're not gonna put people in state asylums anymore, and we're going to put them out into the community, and then we never funded those resources. And what happened is we just ended up with our criminal justice system taking their place because it's the only system that can't turn anyone away. It's the only system that when you get brought into jail they have to take you. And then once they've taken you you can't be tried unless you're mentally able to be tried. And so the state hospital has to take you then and it just goes around and around. 

Michelle: That's the US right there, the criminal justice system, the only people that will never turn you away. You're always welcome. 

Jesse: Yeah, and another indication of how intertwined these criminal and civil systems have become is that we continue to see carceral forms of forced treatment justified because they're said to be better than criminal incarceration, as if those are the only two options. 

Michelle: It's like talking about the lesser of two evils. I do appreciate that when we talk about that there is one that is less evil, and I do want the less evil one because less evil is better than more evil. But I don't really wanna focus on less, I wanna focus on evil. And so it's the same thing, you know, yeah, I get it, treatment versus punishment, that is important. I do recognize the difference and I appreciate the difference, it's just not really what I want to be focusing on. I wanna be focusing on the rights stripped from the human being. Focus on that part. 

Jesse: Well, there will be plenty more opportunities to focus on systems that strip people of their rights because next time on Committable we'll be talking about mental health laws in Minnesota.

Jesse: Committable is produced by Jim McQuaid, Michelle Stockman and me, Jesse Mangan. All music is from the Song Reasonable by Christopher G. Brown.

S3 Episode 13: Connecticut

Jesse:  Jim!

Jim: I'm back. 

Jesse: Did you know that every time I create a transcript for an episode, Descript refers to you as Jim McQueen? 

Jim: Jim McQueen, like I'm related to a race car.

Jesse: Or a famous action movie star. 

Jim: Okay, that was my silver lining for the episode. 

Jesse: Well, don't expect that silver lining to last because what podcast is this?

Jim: This is Committable.

Jesse: Perfect and now on to the mental health laws.

Jesse: This is Committable, a podcast about involuntary commitments. I'm Jesse Mangan and I'm here with Committable producer Jim McQuaid. 

Jim: I'm excited to be here!

Jesse: (laughter)

Jim: This is so fun!

Jesse: (laughter)

Jim: I don't know if people are gonna realize that we record these things sometimes back to back, and so we're going into one feeling all of the sadness and rage.

Jesse: Yeah, when covering mental health laws the rage does tend to accumulate. But for this episode, while there may still be some rage, there will also be two amazing people sharing their insights because for this episode we are talking about mental health laws in Connecticut. And to learn more about those laws, I spoke with Kathy Flaherty.

Kathy Flaherty: My name is Kathy Flaherty. I am a lawyer and I am the executive director of the Connecticut Legal Rights Project. And we provide legal representation to people who are eligible for mental health services from the state of Connecticut, Department of Mental Health and Addiction Services, which is abbreviated DMHAS. And we provide that representation on matters related to people's treatment, recovery, and civil rights. 

Jesse: So every state has a different mental health law. How does involuntary detention and civil commitment in Connecticut work? 

Kathy Flaherty: One of the ways people end up in the hospital is when the police intervene, uh, for somebody who's in mental health crisis and the police are able to fill out what's called a police emergency evaluation request, which is sometimes called a PEER. So basically what happens is if a person is in crisis and the police feel that it's a mental health issue, they can issue that order for detention and ask that a hospital evaluate the person. They are supposed to have a good reason for making that initial detention, and they have a form that they're required to fill out, which depending on what boxes get checked and what they write in for the description explains what their basis is for making that request to the hospital. There have been times where we have represented people in cases against police departments when based on the information that the police officer has provided on that form, there was no good reason for the deprivation of that person's rights. 

Jesse: So we're talking about the involuntary detention part. So however someone arrives at the point where they're at a facility, whether it's a police officer, psychiatrist, physician, however they arrive there with this involuntary detention order, what happens then? What are their options then? 

Kathy Flaherty: Well, what happens when they're brought to the emergency room, they're supposed to be evaluated by somebody because that's literally what the police are requesting, an emergency evaluation. And what can happen at that point is that, you know, the doctor in the emergency room can complete what we call in Connecticut, a physician's emergency certificate or a PEC. That's an order that authorizes a hospital to admit a person for observation for up to 15 days. So unfortunately, you know, they sign that and there's real, you can challenge it. And you have the right to ask the probate court to hold a probable cause hearing, but that's a very low standard that the facility has to meet. They just simply have to show it's probable that they had good enough cause to hold you to evaluate you. If a person requests that they have to do it in writing, usually they have a form available at the nurse's station for somebody to request that. And then a judge is required to come to the hospital within 72 hours to hold that probable cause hearing.

That's an issue that comes up a lot here because those hearings are held on the hospital unit. And if you sort of think about, you know, the way we all perceive courts as you know, big rooms judge up on an elevated bench flags, whatever. You don't have that when you have a probate court hearing in a psychiatric hospital. It’s usually held in a conference room, sometimes it's held in a conference room that's literally on the unit. So it's not like the person even gets brought off the unit to come to a separate building for court, and I think it's just human nature that that sort of tilts the scale of justice towards the facility because you're literally holding it at the facility.

But what can happen at that probable cause hearing is the judge can determine whether the patient gets discharged because there isn't probable cause, or whether the hospital can continue to hold them for the remainder of the 15 days. And that's a timeframe in which the hospital has to decide whether they're going to let the person go, or they're gonna petition for an order of civil commitment to be able to hold that person even longer. 

Jesse: So in Connecticut, any police officer can initiate a Police Request for Emergency Evaluation, which allows that officer to involuntarily detain someone and force them into a hospital for evaluation. Once a person is detained at a hospital, they are supposed to be evaluated by a physician within 24 hours, and should not be held longer than 72 hours, unless that physician fills out a Physician Emergency Certificate or a PEC. If a PEC is filled out, then that person can be detained inpatient for up to 15 days.

Jim: When she first said 15 days, I thought I'd misheard her. I was like, there's no way it's that long. And then to set the bar so low is probable cause, I think you could take any random person off the street and make some kind of case for them. Especially if they're in some kind of weak social position. I mean, somebody who's younger, or lower economic class, or someone who just gets nervous and flustered, which is gonna be anybody in that situation. 

Jesse: Yeah, probable cause is a really low bar to meet, especially in regards to forcibly detaining someone. But I think that's kind of the point. If a firm legal check on the authority of the hospital and its clinicians was actually the goal then there would be a rigorous demand from legislators that the state must prove that there is some form of imminent need to detain this person, and that hearing would be automatic. But my understanding is that in Connecticut the patient has to know enough about the system to request that probable cause hearing for it to actually happen.

Kathy Flaherty: Yeah, you basically, if you don't know to ask for that probable cause hearing, you know, you're probably gonna be there and I'm not gonna save the 15 days because here's really the reality of it I think in Connecticut. And this is why I sometimes tell people, you could go to court but the other way that you get out of a hospital is to go what we call the clinical discharge route, like you go when the doctors say you're ready to go. And for people in private hospitals what's frankly determining how long you stay there is what your insurance will cover, which means once they are fighting way too hard for each extra day the facility's probably gonna decide to discharge you. Because at a certain point they feel like the time spent on the administrative insurance stuff isn't worth whatever help they can give you.

But the particularly frightening thing about Connecticut's law is unlike in Massachusetts, where when you get committed you get committed for up to six months and at that six month timeframe the facility has a burden, once again, of either going to court to petition to keeping you longer, or getting out. So you know you're not gonna be there more than six months. In Connecticut, when you're civilly committed there is no timeframe. We are one of the outlier states that does not put a length on the term of commitment. 

Jesse: Okay, so let's say a police officer sees someone and that person is acting in a way the police officer doesn't understand. Police officer brings that person to a hospital for an evaluation, and the physician thinks, yes, you have got enough evidence here to say this person should be held. So then you're held for up to 15 days, but at the end of that 15 days they can then apply for a civil commitment…

Kathy Flaherty: They have to have the application in for the civil commitment by the 15th day, or they have to let you go. But when they file that petition the court then has another 10 days to schedule that hearing. So unfortunately, it's like the timeframes just keep adding up and adding up and adding up. But what happens when the probate court schedules that hearing, this is the law, the patient has the right to receive notice of the hearing, to be present at the hearing, to cross-examine witnesses, and to have an attorney. And an attorney gets appointed by the probate court. The probate court sends two other doctors to evaluate the patient before the civil commitment hearing, they're supposed to be independent doctors who examine the patient. Those doctors are supposed to tell the person that the reason for their coming is this evaluation for the civil commitment and are basically almost an equivalent of Miranda rights to the person to say, you know, whatever you say can be used against you in a court of law, because that's what this. 

You know, we fought in Connecticut to get these rights established but I wonder how often they actually really properly play out the way they're supposed to. But they're supposed to look at, when the court's deciding whether to grant that civil commitment, is the patient danger to themselves or others? Are they gravely disabled? And they're supposed to be looking at, are there less restrictive alternatives to get the person the help that they need. So we actually have a lawsuit pending in Connecticut right now because back in the late seventies, remember how I told you in Connecticut there's no time limit on this civil commitment. In the statute you're entitled to a review by the court every two years, and you're entitled to an annual clinical review, so that's once a year. But our state Supreme Court said back in ‘77 that that's unconstitutional because the person who's committed is being deprived of a fundamental liberty interest, their freedom. And people do get better in the hospital, especially at a state hospital where you're stuck there for years. People do get better and it's not proper to put the burden on the person to say, you should let me go. The burden should be on the facility when they think the person no longer meets the standard of danger to self, danger to others, or gravely disabled, they should be the ones going to court to petition for authority to continue to keep them because they know they don't really meet that thing anymore. And the court said,40 plus years ago that the current statute does not comply with the Constitution, fix it. And for whatever reason they've never fixed that part of it.

And the other issue that comes up is really when people are ready to leave the hospital, the lack of community supports, affordable housing and everything else, means that people end up staying in the hospital longer. Even though their teams think they're ready to leave. Which means they're being held in a more restrictive setting than they really need to be, and ought to be, and they should be getting out. So we filed a lawsuit back in 2018 but the wheels of justice grind very slowly. 

Jesse: Okay, so if you are detained for evaluation and then a physician evaluates you and signs a Physician's Emergency Certificate, then you will be held inpatient for up to 15 days. During that 15 days you can request a probable cause hearing to determine whether or not there's any probable cause to believe that your involuntary detention is permitted by law. But if the judge decides that there is probable cause for you to be detained, or if you aren't familiar enough with the system to know that you can request a probable cause hearing, then you will continue to be detained until either a psychiatrist lets you go, or the facility applies for a civil commitment. The facility does have to file the paperwork for that civil commitment before the end of the 15 day period. But after the paperwork is filed you should get a civil commitment hearing within 10 days. And if the judge decides that there is adequate reason to believe that you need to be involuntarily detained in a psych facility for treatment, then you will be detained in that psych facility, essentially, until someone decides to let you go. 

Jim: Oh my God. 

Jesse: There is a required annual review by a physician, and every two years there is supposed to be a court hearing to review whether or not the facility can continue to detain you. 

Jim: Okay. 

Jesse: But realistically if the clinicians at the facility want to keep you, you can either attempt to make your case at a court hearing once every two years, or you can try to go the clinical discharge route.

Jim: I love all of these euphemisms, like the clinical discharge route, right? As if that's a choice on the part of the patient, right? The patient can choose the route of challenging their commitment and going to the courts or take the, you know, the “clinical discharge route”. Which I'm not criticizing the interviewee for using, I mean, you need a phrase. But the clinical discharge route, it's to completely submit to the authority of the institution and to say, I am going to just do whatever you tell me to do and submit completely in order to convince you to let me out. Jesse: Jim: Essentially yes, but we should be clear that no one should ever be shamed for choosing to comply with treatment. The decision of whether or not to comply with treatment is an incredibly personal one, and there are a lot of complicated factors to be considered. So every person should be supported in making that decision for themself. But that is not functionally what this system does. Within this system that choice is effectively an illusion. The reality is that if you choose not to comply with treatment that can lead to potentially indefinite detention, because the default position of the state is to allow that detention to continue. 

Jim: It's so dehumanizing and so impersonal and depersonalizing and objectifying. I mean, you become an object, you become a thing, so that whatever you are gets erased and the process just becomes the thing that matters. 

Jesse: That is often what it feels like. And we can look at data on the length of inpatient detention in Connecticut, the state actually has some pretty comprehensive information that is publicly accessible. But those numbers will never be able to really communicate what it feels like to be pushed through this system. It's really only people with lived experience that will be able to understand that. So to learn more about the practical reality of living through this system, I spoke with Mitzy Sky. 

Mitzy Sky: My name is Mitzy Sky and I am a writer, a poet. I've been working in recovery, peer advocacy work since 2011 actually. My last peer recovery job was working at Advocacy Unlimited and I got to develop something called Compassionate Activism while I was there. And I was able to do that training since 2017 and until the end of 2022. And also, one of the things that I'm also involved with  is Drop The Disorder. I don't know if you've ever heard of a Disorder For Everyone out of the UK, they have an annual conference. And just lots of places, there's lots of things happening and ways people could take care of themselves and be in this world. And that's what the Compassionate Activism training was about. It just included a whole lot of stuff just to share information with people. So for me, what would I say about me, myself? Well, I didn't know anything when I asked for help in this mental health system, and so all I wanna do is, as I gain information, is to share it with others and that's it. I don't think I do anything else but that.

Jesse: There can often be a conflict of identity when someone in distress seeks help, is diagnosed with a mental illness, disagrees with that diagnosis, but must accept it in order to be given access to necessary resources. So I asked Mitzy what sort of approach she might take to help someone understand that although they are being labeled, they don't necessarily have to identify with that label? 

Mitzy Sky: That's a great question Jesse, and it makes me think of Dr. Paula Joan Caplin because that's one of, she worked a lot with veterans and that's one of the things that she would always tell the veterans, you know, you do need to get that disability money and services that you need. You need those services, but you don't need to keep those labels. But know that you're doing that to get what you need. Unfortunately, that's just how it works, and we wish it didn't but that's how it works. A lot of that work is what that Compassionate Activism is about. One-on-one with a person it's about the long-term, building that relationship, staying with that person. I'm just thinking of how hard it is really, how hard it is, and it's those things, those conscious and unconscious things that we learn. Because I remember, like, I remember Robert Whitaker sharing, he was like, it's white men in society, then white women, then black men, then black women, and then people labeled mentally ill, you know? And so who gets listened to? And so I'm right down there on the bottom. So trying to speak to someone who completely believes in everything that the system has done told them about themself, and getting a different voice from somebody that looks like myself, a black woman, was coming and saying, I'm a peer support person. That means I, you know, I've used these mental ill diagnoses and stuff. So that person is not gonna listen to me really. They're not gonna really hear too much of what I have to say. So, for me, it's just going and being with the person and just not judging. And the reason why I don't judge is because I came from the same place. I came from the same place, the same kind of thinking, the same attitudes, how did I unlearn it? And I see the differences of why I unlearn it. I know why I unlearn it actually, I wasn't born in America, that's one other thing. I was born in Jamaica. So I came to America when I was eight years old, I came as an observer, I was always observing. As a matter of fact, the title of, I'm doing a little plug for my book here, it's called Top of the Zinc Roof, and it's about observing. It's all my poetry in there, it's about being an observer. I was just like, when I was a kid in Jamaica, come to America, I didn’t have television, so my idea was that the airplane was gonna drop me off on my zinc roof.

So for me, I feel like I've been stuck on that zinc roof for a very long time, just observing. And so for me, all the observing, I learned the same thing what Robert Whitaker said, that's what I learned. And I internalized that, that I'm way down here on the bottom, that I don't need to be seen or heard. As a matter of fact, when I was in the system and they called a DCF on me and you know, ready to take my children from me. I went and got a white man, who work on Wall Street, that I was cleaning their house and babysitting for them. I'm like, you know, hey, Mr. C, I need you to come here to this hospital. And I didn't have the words then that I have now, that I could say. And I was able to know that they would listen to him and they wouldn't listen to me. And he stood up and he talked for me. They sat there and they talked about me like I wasn't even there in the room. And I remember when we left he was like, you know, they're saying the children are resilient, but they're resilient because of you. You know, so when I see people in the system, they're getting their kids taken away and things like that, I know that I was able to unlearn it because of the different background that I had, and just coming and observing. Because, like for myself, my sister, who's four years younger than me, who went through the same horrific things I went through as a child, she didn't make it. You know, she died of alcoholism in 2018. Four years younger than me, and she didn't make it out of all that pain. And the things that I would say to her is like, I was like, they did all that stuff to you. Don't let them win. Like, you know, they can't be living and enjoying all that wonderful life and you have that. You could have a wonderful life too. And the things I was saying, it is just so much internalized that it's hard to let that internalize stuff go. I think I heard James Baldwin say that from a black child is like 4 or 5 years old in America, it's like they're really learning to hate themselves, you know. 

And it just made me think of, I came to America and my little sister, she used to put a towel on her head and do Sonny and Cher, we're old from the seventies, you know. I got you babe,I got you babe, with the towel, pretending to have really long hair. And you know, and I was just coming from where I was, just laying down on the ground and enjoying the sunshine and on an island. It's a different kind of thing. So it's like knowing, wait a second, there's a whole bunch of people all over the world living in all different kinds of ways. Why am I trying to get a white picket fence and a Mercedes-Benz? And I think if I don't have that, I'm not worthy and I'm not worthy to live and I don't have this, and I'm not this because I don't have that. I'm like, there’s people living in caves, there’s people living underbridges, there's people living in castles, mansions, all different ways to live. In Jamaica I didn't even stay in the house, we lived outdoors and the only time we went in the house is to sleep. So I remember that, that came back to me. And so that's, that's what saved me, remembering who I am.

Jim: I just wanna comment on what she said at the very end, what saved her was remembering who she is. So much of the system strips people of that, strips people of who they really are. So much of the system requires either the complete erasure of someone's identity, or ignores them, or just it, it dehumanizes people so much. And that damage is so deep and so profound that it goes beyond any sort of therapeutic treatment that's being offered. Which as we've talked about a bunch, there's very little in the way of therapeutic treatment being offered anyway. It takes someone who's already struggling and it adds to their burden, it doesn't help them. And it seems like for people struggling in these situations the need to recover from the mental health system is gonna be a deeper need than whatever it was that brought them into the system in the first place.

Jesse: Yeah, I maintained the criteria for a diagnosis of anorexia for about five years, but I have been struggling with PTSD from the treatment for that condition for over 20. And part of the trauma was a conflict of identity. Being repeatedly coerced into believing that commitment is not something that happened to me, it's something that I caused. That I must view being committable as part of who I am. And towards the end of the interview Mitzy brought up this idea of being committable and some of the ways that it can be, essentially, weaponized. 

Mitzy Sky: You know, the thing that I thought about when I was thinking about committable, I was just thinking how committable I was or probably still am just because of the color of my skin, and my poverty level. Because there's, well, the last time I went to the hospital I was having a hard time, it was a bad relationship I was in, and I just didn't wanna go home. And I was in the hospital and I think the person, you know, they were just telling me to take off all your clothes and, you know, in the room. And I was like, take off all of my clothes? I'm just, You know, I'm here, I'm waiting to see the doctors. And he was like, take off your panties. And I was like, take off my panties? This is an emergency room at Bridgeport Hospital, I'm never gonna forget this. And I was like, take off my panties? I was like, no. And he would come back, back and forth in the room and say, did you take 'em off? And I wouldn't, and it sobered me up real quick. By the time the doctor came, I was like, I'm good, I'm okay, I can go now, I was just upset. And I was actually able to get out of there. 

And a real committable moment for me was, I forgot how old I was, I was in my thirties cause my kids were a little bit older. I went into the hospital like on a Friday night and no, actually I was there for therapy. I was there for therapy and again, stuff was happening at home and I ended up in the therapist's office crying, I didn't feel like talking anymore. And you know, basically if you don't talk to them and you're just crying, then you're not good. She asked me, are you good? Do you feel safe? Do you wanna go home? I said, no, I don't feel like going home. She said, okay, I'll get you a room. They gave me some Ativan so I could stop crying, and they got me a room. And so that's the Friday night. So now the therapist that I know, she's gone home. And so then I'm on this strong medication, that's Ativan, and they called me to the conference room and there's a whole bunch of people sitting in the conference room and they asked me to sign some papers. I was like, how are you gonna ask me to sign those papers? And I'm just, you know, I'm on so much medication and I just wouldn't sign them. I found out those was papers to commit myself. Now here's the thing, if I had commit myself, now my stay has been like maybe three, four days or so. So I was there the Friday, the Saturday, Sunday, Monday. The therapist came to see me and she knew me, she said, oh yeah, you seem real better. I'll get the doctor to come see you. The doctor come and see me and the doctor say, okay, you can go home on Tuesday. Now, if I sign those papers, the stories that I've heard and what I've seen happen to people, I wouldn't have gone home on Tuesday. And the thing about not being able to go home on Tuesday, I would've been really angry because I would've wanna go home to my children. Cause remember at this stage of my life that's all I thought was my life, was my kids. That was it. That was all I knew. I had put all my hopes and dreams, everything was just my kids and I would've wanna gone home and see them, and they wouldn't allow me to. So I would've been really upset and my upset would've looked like mental illness for them. That's what they would've said, my upsetness would be mental illness. And from what I know from the people that I've gone and sat with them in those meetings, that wanted to go home like I would've wanted to go home, they didn't get to go home, I don't think I would've gone home either.

Jesse: So you sometimes, as part of this advocacy work, you will testify on behalf of someone who you've spoken to, what are those hearings like? Do you find that judges or attorneys are receptive to hearing from advocates? 

Mitzy Sky: There was one time, a whole lot of us were sitting in a room and a doctor, they were just laid back and finally when I was talking and I was sharing some stuff, he actually sat up to look to see, you know, like, who's that talking and what is she talking about? But they're, I tell you, these people are cocky. They're cocky. They know that your voice is limited, you know, I've never gone to any hearing except for this one young woman, but she had been there for like six, seven years or so when they finally let her out. And they were actually letting her out that day when we were there to support her. All the other times I've gone and sat, and it's usually in some room at a hospital, it's never been at a courthouse, always at a hospital. So they're not even really letting you out to go to a courthouse to go do this, and the people usually end up staying. We wanna get out, we wanna go home, and it's usually, no, we are gonna keep you. I wish I could say I had one experience where I went and I spoke and my voice mattered. I don't have one. 

Jesse: I really appreciate this idea of committable moments. 

Jim: Yeah, right? I mean, they're supposed to be experts on assessing decision making and ability to take care of oneself. But they're not paying attention to the fact that they've given someone medication that has prevented them from being able to make decisions about being able to take care of themselves. 

Jesse: Yeah, in these types of situations compliance is often considered to be a sign of competency.

Jim: But they would never say it that way, I'm sure they would say, no, no, no, we don't judge based on compliance. We judge based on clinical criteria and so on. But just because you may have read like a bunch of textbooks during your training, and there are these clinical criteria, doesn't mean that that's what you're applying. People have these narratives and these fantasy stories that they tell themselves and psychiatrists live in the world, and just like every other group of people have narratives that they tell themselves. And their narrative is that they judge on the basis of clinical criteria that they're applying dispassionately and rationally. But that is not true, they're not doing that. And so there's ways of having those human limitations that can help one mitigate against using one's position of power to harm others. And one of those ways, not to eliminate the impact of one's power on others, because you know, we're not totally self-aware. But people like psychiatrists for instance, if they are not approaching their task with a deep awareness of their limitations, and a deep awareness of the fact that, for instance, they're not gonna be as aware of cultural differences. They're not gonna be able to put their own emotional reactions aside necessarily. Those things are gonna factor into their decision if they aren't acting with that awareness, intentionally acting with that awareness, and not coming at these decisions from a space of humility, then they're gonna be a lot more destructive, right? I mean, psychiatrists could be much more humble in their approach and much more willing to really reflect on their own limitations, and I'm sure some do, but systemically, at a systemic level. There's no real pressure on them to be aware and humble and thinking, alright no, I am aware that I have these biases. And I am aware that I can make these mistakes. And I am aware that I shouldn't be cocky in these situations. And I'm aware of the impact that my decision is having on every person who comes through the door. And I don't know, just the kind of institutional arrogance of hospitals and psychiatrists is incredibly damaging. 

Jesse: I think a lot of this comes down to accountability. Because in all the mental health laws in the US, that I am aware of, clinicians involved in those decisions have virtual immunity from lawsuits related to their actions as long as they're acting in good faith. And I have never really understood why that is, because you are empowering a group of professionals with the legal authority to strip other people of their rights based on opinion. And as we end this episode, I wanted to return to the end of the interview with Kathy Flaherty where I asked, in Connecticut if you have been harmed by the commitment process is there any way to seek accountability?

Kathy Flaherty: The legal system can't always provide what the person wants. Sometimes, you know, people want an apology. That's not gonna come through a lawsuit. Sometimes people want, you know, just somebody simply acknowledging that what happened to them was traumatic and wrong. Really, the only thing the legal system can get from this kind of case is usually money damages, and sometimes there's no amount of money that can really make up for the profound deprivation of freedom that involuntary detention and civil commitment provide. You know, there have been cases where you win on an appeal of the civil commitment, but at this point the person maybe has spent a month or two in the hospital wrongfully. Because the judge rules their initial order had no legal authority, but how do you measure that time in a life? You know, what dollar figure can you put on there to replace it and how do you deal with all the collateral consequences of that? I think that's another reason where people really don't challenge it. Because if you put it out there in court then, you know, yes you can ask for certain records to be sealed, but until that happens, you know, people tend to find things. You know, I was civilly committed in the fall of 1990, technically I can't own a gun because I was adjudicated mentally defective. Do I wanna own a gun? No. But it also made my admission to the bar a lot more complicated, and it took longer and it was conditional because I had that history of psychiatric treatment. And, you know, having listened to other episodes of your podcast, we have so many experiences in common, but it's the things that we don't know when whatever's happening to us, and we're going through that. I literally just, I don't know if I was laughing or crying listening to the episode where you described your detention because I'm like, that is exactly what happened to me. And it was so, it's almost unnerving just how similar these situations are, and it does prove that no, we weren't imagining it. That's just the way these systems work. 

Jesse: Eight years after my first involuntary hospitalization there was a trial, a civil trial, where the psychologist who first had me detained for evaluation and the university he worked for had to explain their actions in court. On day one of the trial, the judge told me and my attorney that he taught part-time at the university and he would under no circumstances allow a decision in my favor. I was then told that I could seek another judge, but if I did try to find another judge it might take years before I got another trial date. So I decided to go forward with the trial. I spent eight days in that courtroom. I listened to three psychiatrists who had never met me testify that I deserved to be committed. I watched as my medical records were used against me, records that were taken completely out of context and distorted to fit a predetermined narrative. I watched the psychologist who had me sectioned say that he didn't actually think that I was suicidal, but when my brother came to University Health Services to give me a ride to the hospital for a medical observation, which is what we were both told needed to happen. When my brother arrived, this psychologist determined that we were exhibiting labile moods because when my brother made a really bad joke to try and ease the tension, I laughed at it. Even though an hour before I had been crying. I sought accountability and I heard that psychologist admit that the reason that he had me strapped into a gurney and confined to a locked ward was just so I could get a ride to the hospital. Which essentially means that he admitted he violated the law, he abused his authority, and no one, not the university, not the psychologist, not the judge, cared. Jim: So one of the things that she mentioned was that when people, you know, come out of a commitment and they've been harmed, that part of it is just the desire to have someone say, Hey, we messed up and this shouldn't have happened. And I'm really just deeply profoundly sorry that this happened. And genuinely meaning it and showing contrition. I mean, would that mean anything?

Jesse: For me? If someone had sincerely apologized, had honestly acknowledged to me that what happened was wrong, there never would've been a lawsuit. 

Jim: So last question. How does it feel to hear that a listener, and not just a listener but a listener turned interviewee, listened to your story and was so validating for them in the sense that for Kathy, she said that it made her feel like it wasn't just her, it was the system itself.

Jesse: I don't know. I mean there is something, a spark of hope, a sense of purpose, that hearing that makes it all worth it. But it also reminds me of my story, it reminds me that the pain is still there and I am still frightened by it. So I only allow myself a brief moment to feel that hope, that validation, before I try to forget my feelings because it's all still right there. Like a tidal wave, just waiting for a shore. And I don't know what to do about that. 

Jim: Right, okay, I will stop, uh, barraging you with questions now. 

Jesse: I sincerely appreciate your questions Jim, and there will be plenty of opportunities for more because next time on Committable we'll be talking about mental health laws in Oregon.

Jesse: Committable is produced by Jim McQuaid. Michelle Stockman and me, Jesse Mangan. All music is from the Song Reasonable by Christopher G. Brown.

S3 Episode 12: Arizona transcript

Jesse:  All right, let's do the intro. 

Michelle: This is Committable!

(laughter)

Michelle: I did it! I win!

Jim: Did you think I was gonna try to go before you? 

Michelle: Um, you didn't know the answer, Jim. I knew the answer, sooo… 

Jim: You have 37 Committable points.

Michelle: That's how many I wanted. 

Jesse: Jim, do you wanna do one? 

Jim: This is Committable.

Jesse: Oh, nice. Elegant. 

Michelle: That was elegant.

Jesse: So elegant that it can bring us straight into the music.

 (intro music from Reasonable by Christopher G. Brown)

Jesse: This is Committable, a podcast about involuntary commitments. I'm Jesse Mangan and I'm here with Committable producers, Michelle Stockman.

Michelle: Hello. 

Jesse: And Jim McQuaid. 

Jim: Hello. 

Jesse: And for this episode we are talking about mental health laws in Arizona. And to learn more about those laws I spoke with Ian Pettycrew.

Ian Pettycrew: So my name is Ian Pettycrew. I'm an attorney with the Office of the Public Advocate in Maricopa County, Arizona. I have been representing individuals in the mental health court for about six years now. Prior to that, I worked in adult criminal defense and juvenile delinquent defense, which is the same as criminal only they call it delinquent for juveniles. 

Jesse: So the civil commitment process usually begins with some sort of detention for evaluation. In Arizona, how does that detention for evaluation process work? 

Ian Pettycrew: The main way is either a family friend, relative, police officer, social worker, someone who has personal experience with the patient will fill out what's called a COE petition, Court Ordered Evaluation petition. But it does not need to be by a specific person, any adult with knowledge of the person and the symptoms can go and file the COE petition. It does have to be notarized, so that's kind of the only check on that system. So you do have to sign under oath and then a doctor has to review before it gets sent to the police officers, or whoever are gonna go to pick the person up. What often happens is the police, or crisis team, or someone, will be called out to a house or residential facility where the patient is and if they decide at that time, you know, this person needs to be evaluated, then they can take them to one of the three screening facilities and fill out the paperwork there. So that's how the majority of our cases start. 

Jesse: Okay, so at this point we are talking about the COE/COT process. COE stands for Court Ordered Evaluation, and COT stands for Court Ordered Treatment. But there is often a precursor to the COE/COT process, which is called a pre-petition screening. So, in Arizona there is an application process where basically any adult can apply to have someone else detained for evaluation. You can get this application form online, and the only real requirements are that the application be notarized and given to a screening agency where that application will initiate the pre-petition screening process. And basically how that works is that an application is given to a screening agency, the screening agency then has two business days to investigate the allegations in the application. And if the determination from the screening agency is that court ordered evaluation is necessary, then the screening agency sends a petition to the county attorney for court ordered evaluation. If the screening agency believes that this is an emergency situation, then someone from a law enforcement agency is supposed to pick up that person, the person named in the application, within 24 hours. For a non-emergency situation, law enforcement has up to 14 days to bring that person to a facility.

Michelle: For 14 days, like, do you go to work? Because what if the cops like to go to your work? Like you're fucked. It's the difference between you maybe having the hope of still having a job and not having a job. 

Jim: Oh, I wasn't even thinking that, that's such a good point. It makes it so much more insidious and menacing almost.

Jesse: Yeah, and that's all before you're detained in a facility. So take that anxiety and compound it with whatever frustration, anxiety, or trauma is brought about by actually being detained. 

Michelle: Yeah, my anxiety in a psych facility would be, this person has anxiety. There would be no conscious connection between being currently in a psych ward is causing me anxiety. 

Jim: I mean, that gets to, you know, a point you've made a whole bunch of times, right? That theoretically the appearance of symptoms is a manifestation of some underlying condition, but the symptoms themselves become, for all practical purposes, the condition. Right? There's no distinction between the expression of an emotion or an affect, or a mood or a behavior, and having the illness itself.

Michelle: I think this is all the more prevalent with, you know, certain non-majority communities. Like the LGBTQ community, it's like, you know what's depressing? Constantly having to engage in conversations about whether or not my life and choices matter. Weird how that's kind of a bummer all of the time. Or like, you know, if an African American person was like, I feel paranoid the cops are out to get me every single day. Well, yeah, that would be really stressful because you're right. 

Jesse: Understanding the difference between identifying symptoms and identifying root causes for those symptoms is really important. Especially when those root causes aren't something that can be solved by focusing solely on the individual. All mental health laws are essentially built around the concept that when symptoms are observed there needs to be a legal mechanism for forcing that person into a facility where they will be evaluated. And all that we've been discussing so far is the precursor to someone being detained at a screening facility for a court ordered evaluation. And that evaluation is supposed to happen within 72 hours, but when does that 72 hour clock actually start? 

Ian Pettycrew: It starts whenever the paperwork is actually filed with the clerk's office, is when the 72 hours starts. And, unfortunately, it doesn't include weekends, it doesn't include holidays. So yes, a lot of people get that confused. They'll say, well, I've been here five days already. Well, unfortunately, they came in on Friday afternoon. Their petition wasn't even filed until Monday, so it's almost a full week before that 72 hours expires for them. And that's even if there's no holiday or anything like that.

Jesse: At the point where the paperwork is filed, and the 72 hours starts, and a person's being evaluated. They're in a facility at that point, what determines whether or not a court order out into the community would be appropriate, or whether or not further inpatient treatment would be appropriate?

Ian Pettycrew: Usually the patient is given the option of signing in voluntarily, and if they do that then the court order process basically stops. And then that person is given the opportunity to say, okay, I'm willing to stay here 3, 5, 7, whatever time is required to get stabilized. Again, they are true screening facilities, so if someone comes in and it's clear that they, you know, were only acting that way because of substance abuse, or if they were only acting that way because they hadn't slept in three days, and once they get a chance to sleep again those symptoms go away. And so they can be released at any time. So the doctor at the screening facility can release them, or if they are brought over to Valleywise Hospital. Valleywise Hospital is the semi-government agency in Maricopa County, which provides indigent healthcare, indigent psychiatric care. There's three courts right now inside Valleywise Hospital, and they're about to add a fourth. This has just exploded over the last few years. When I started in 2015 there was one court and one judge. Now there's four already, and they're adding a fifth. 

Jesse: With these mental health courts, are they exclusively civil? Or are they also criminal? Would someone who has been alleged to have committed a crime, who is believed to have a mental health condition, would they also be brought to the mental health court?

Ian Pettycrew: They will be brought to the mental health court once their criminal case is resolved, or they're out on bond while the criminal case is resolving. So our interaction between the criminal court and the civil mental health courts are actually very small. Sometimes we do get patients that are being released from the Arizona Department of Corrections, and they know the person has a mental illness, and so they wanna get the services started. When they get discharged from the prison back to the community, they want the services to already be in place. And so sometimes we get those patients. Other times we will get people that are in jail and maybe they're pending trial. And sometimes, you know, trials can be set out six months, nine, and so in the meantime they're released from the jail, brought over to one of the crisis centers, or directly to Valleywise happens a lot too. They come directly to Valleywise, and then that starts the evaluation process for them. 

Jesse: Okay, so once someone reaches a screening facility for a court ordered evaluation they will be detained for up to three business days. But that 72 hour clock does not start until someone actually files the paperwork. And all of this, the pre-petition screening and the court ordered evaluation, happens before there is a hearing about court ordered treatment. And if a judge does issue a court order for treatment, then not only do you lose the right to own a firearm, but in Arizona you also lose the right to be in possession of any deadly weapons. And what qualifies as a deadly weapon in Arizona seems like it can be interpreted in some pretty broad ways. 

Michelle: I hope nobody's a chef. 

Jim: Puts people in a weird situation too, where if somebody is on a court order and they own some guns, or they have a knife somewhere, or they bought a sword at a Ren faire once. Do they have to frantically get rid of their, like, where do you bring all of your dangerous weapons to? 

Jesse: Yeah, I don't know what legal avenues are available for disposing of something that could be categorized as a deadly weapon, but generally speaking, disposing of everything that could be perceived that way  does seem like the safest thing to do. And it gets even more complicated when you consider profession, like a chef, because in a case where someone is a culinary professional and carries specific knives for the job, or a construction worker who carries tools with blades, or if you're a security guard, or in law enforcement, or a medical professional with a scalpel or a saw, that court order could essentially destroy your career path. Because if a peace officer believes that you are in possession of something that could be classified as a deadly weapon then you can be charged with a felony. Which can bring you into the criminal process. And as Ian mentioned, if you're in the criminal process and someone thinks that you need to be detained for a court ordered evaluation, possibly in part because they see that you have been put on a court order for treatment before, then that COE hearing is not in place of the criminal process. It is in addition to the criminal process. And if you are awaiting trial for a criminal charge and then forced into the COE/COT process anything that you say at any hearing related to the COE/COT process can be used against you at your criminal trial. 

Jim: Oh my God, that is just so fucked up.

Michelle: Mm-hmm. 

Jesse: Okay, so at this point we've discussed the pre-petition screening and the court ordered evaluation. But if you are being detained for evaluation, and the two physicians that evaluate you determine that you do need court ordered treatment, what happens then? 

Ian Pettycrew: Then what happens is a hearing gets set four to six business days from then. That's what the statutes say, it has to be between four and six business days. That gives the county attorney time to subpoena witnesses. That gives the defense some time to, you know, meet with our clients, talk about possible witnesses themselves, talk about whether they want to testify. So we have a very short period of time, but we do have some time to meet with our clients and try to prepare, you know, a defense for them in that four to six business days window. If they're placed on a court order, that really ends the judge's involvement. So at that point, if the doctors say the person needs three weeks of treatment, then they stay for three weeks. If the doctor says they need two days, they stay for two days. Typically, by the time we get to the hearing, they've already been there for a week or two, they may be taking their medications and may be getting back to baseline. However, it is their right not to take medications while they're through that process. The only time they can be forced to take medications before a COT is in place is if they're trying to hurt themselves or hurt someone else. Otherwise, through that entire two week process, it's up to them if they wanna take medications or not. 

In Arizona, a court order has three prongs, three requirements if you're placed on a court order. The main one obviously is take all your medications as prescribed. That's the big one. The second one is you have to attend clinic appointments, which they set up for you, they assign to you. You know, since these are all ordered by the court  the clients don't have to pay anything for these services, which is, you know, appropriate. The final consequence is they're no longer allowed to possess firearms, ammunition, or deadly weapons. They have to petition the court to get that right reinstated after they are removed from the court order for treatment. 

Jesse: And so that court order basically allows the clinicians to administer the medication any way they can?

Ian Pettycrew: If the person's not willing to take oral medications, or for some reason oral medications aren't as effective, then yes, I have seen situations where they get, you know, four beefy guys and they say, okay, you're gonna take the left arm, you're gonna take the right leg, and they force inject someone. Doesn't usually get to that. Usually, if the person's been to court, has heard that the judge has made a decision, they're willing to comply without physical involvement. And they have a special board which they use for electric shock therapy. They can't just do it on their own, they have to get a higher level of approval at the hospital. I think there's like a committee they have to apply to to get permission if the individual isn't willing to do it. But for the most part it's just medications, and those are easy to administer. I've had cases where they put it in applesauce for someone, so they wouldn't know, you know, they're taking the medications. This is after they're on a court order, obviously.

Jesse: In general, if it isn't an emergency situation, for the time that someone is there before the court order is in place, can they refuse all treatment? 

Ian Pettycrew: Yes, medical treatment, psychiatric treatment, they'll be, you know, talked to. They'll say, look, this is why we think you should take this. But a lot of times we've had people that are here for the third or fourth time and it's because they don't like the medications that they're prescribed. You know, some medications unfortunately do have, you know, side effects. They include things like weight gain or, you know, restless sleep, you know, things like that can impact everybody on a day-to-day basis. But you kinda have to weigh and say, well, the medications aren't great, but when you're not on the medications, you know, you're not safe. So it's not a perfect, you know, system. It's only as good as the medication, you know, that's being ordered. Luckily, they're coming up with new treatments all the time, so hopefully in the next five years we have a more technological system where people are getting, you know, scans to see if there's some biological element that they can try to help. Or whether it's just a chemical imbalance type of issue. Which I've read some stories that say that that's really not something that exists, that the whole chemical imbalance is kind of a myth that people still use to convince people to take their medications. But I'm not a psychiatrist thankfully. But I have seen clients, you know, with new treatments and they do seem to be effective. So anything that works is great. 

Michelle: We're not dogs, you should not be hiding things in peanut butter.

Jesse: Yeah. In terms of the legality of it, I think it really depends on what specific requirements are put into that court order for treatment. But generally speaking, even if there is a court order that states that physically forcing medications is legal, that person still has a right to know what they are being given. And to intentionally deny someone that right is just dehumanizing. Because protesting medication, even if a court order says that medication can be physically forced, protesting that medication can be an act of self-preservation. The potential side effects of some of these medications can range from trivial to serious, even life-threatening. 

Michelle: Well, hold on a second. I also want to highlight this whole trivial versus life-threatening. Some of the side effects that most people consider trivial, you're not taking some broader context into consideration. Like restless sleep and weight gain, “Oh, mehhhh, that's the difference between your mental health and not? No!” 

Well, I'm sorry, but an inability to sleep every night would completely break me down. And also weight gain? Good thing we're not in a fat phobic society in which your weight can sometimes be the determinant of whether you get a job or not. Some of these things do seem trivial, and maybe they are manifesting themselves in trivial ways, like maybe it's just a lightweight gain and maybe it's just light lack of sleep, but some of those can be more significant than they sound. And also there are a lot of societal factors that also need to be taken into consideration because constantly having to live with certain shame from certain side effects is very real. 

Jesse: That is a fantastic point. 

Jim: Agreed. 

Michelle: That clip also really highlights what a weird and tricky relationship the concept of mental health and treatment has with medication. The average person thinking about mental health are thinking probably in terms of just medicate them. That fixes everything. And if someone isn't taking their medicine, then that is an issue. Like we just need to get them their medicine. And there are so many people who, family and friends who will talk about stories involving loved ones, where it's like, “Oh, all we needed to do was just get them on medication and then they were fine.” And there are even people with lived experiences who will say that medication has really saved them, come through for them. And so it's a challenging subject because there is something that feels very intuitive for a lot of people, like that should be the purpose of this. Just get them on medication by golly, by gum and that'll take care of it. And I don't think that we do enough public discussion about one, how little evidence that there is out there that some of these medications are viable options or that they work. I don't know, it's just this whole messy complication and I think It's challenging to talk about wanting to fight for someone's right to not have medication when so many people believe that medication is the only answer for them.

Jesse: And I think a big part of why these conversations are so complicated is because of the prevalence of the chemical imbalance theory, which can be a really complicated topic. So to learn more about the chemical imbalance theory, what it is and what evidence might support it, I spoke with Hans Schroder. 

Hans Schroder: My name's Hans Schroder, I'm a clinical psychologist in the state of Michigan, and I'm a clinical assistant professor at the University of Michigan Medical School.

Jesse: And what is the chemical imbalance theory? 

Hans Schroder: So the groundwork for the chemical imbalance notion, and I call it more of a notion or a narrative than a theory, really started in the 1950s and 60s when doctors started prescribing medicine for things like schizophrenia, psychosis, depression, anxiety. And scientists in the sixties said, well, we've got this medication that we know increases certain brain chemicals, and that medication also happens to alleviate some symptoms of depression. So the logic is that depression must have been caused by a lack of, or low levels of that brain chemical. And that's really the basic notion of a chemical imbalance, is that there are certain levels of brain chemicals that are too low or too high that explain a mental health problem.

Jesse: With this notion, how would you define normal? If you're saying there is an imbalance, if someone has an imbalance, how would you define their normal?

Hans Schroder: Excellent question. This is the sticky point, so that logic of a treatment fixing an imbalance breaks down pretty quickly. I'll give you an example, the same notion would be if I have a headache and I take Aspirin, is my headache caused by not enough Aspirin? That's basically the same logic. And the idea that there's normal or abnormal levels of chemicals, a lot of science has been looking at that, especially in the 60s and 70s. We really don't have levels. The problem is we can't measure these things, it's really, really hard to measure someone's serotonin, or dopamine, for instance. There is no normal. Studies that look at brain differences between people who have a diagnosis and people who don't tend to find, if anything, very, very slight differences on average, but most of the time there's really no concrete differences. 

Jesse: If there are no concrete differences, but people are being given medication and sometimes that medication corresponds with some reduction or change in symptoms, is it understood what is happening there? 

Hans Schroder: No, we actually don't know the mechanisms here. One kind of fly in the ointment with all of this chemical imbalance narrative is that antidepressants have a notoriously large placebo effect. So in studies that, they're called randomized controlled trials, where some people are given the real medication, some people are given a placebo, and you're not told which medication you receive. People that are taking placebo also improve a great deal, that are not taking any active compounds. So we know that it's not simply that an antidepressant is working on a particular brain chemical, and that causes or explains all of the antidepressant effect. 

Jesse: So most of the things, the theories that we rely on nowadays, started at some point as a notion that became tested and evolved into a theory. Was this chemical imbalance notion then tested and evolved over decades?

Hans Schroder: The narrative of a chemical imbalance has not been in step with any advances in scientific discovery. Again, there's no objective tests for measuring a normal level of dopamine, let alone measuring someone who's experiencing depression or psychosis and saying, “There's your schizophrenia” or “ There's your depression right there, I can see it on the graph.”

We don't have that yet. So I mentioned before that in the 50s and 60s this idea started coming around. In the 80s and 90s and 2000s this idea exploded in popular culture with the advent of SSRI, Selective Serotonin Reuptake Inhibitors. These are medications that do increase levels of serotonin and pharmaceutical companies really grabbed onto this idea of the chemical imbalance. In my mind  the notion, the phrase chemical imbalance is really a pharmaceutical term. It's been popularized with TV commercials, in education for medical students, in psychiatry, certainly also primary care. This notion is everywhere. But it wasn't developed on strong, strong science, definitive science, that we can tell what diagnosis is being considered by a brain chemical test. 

Jesse: So the chemical imbalance notion is pervasive throughout our society, but there doesn't seem to have ever been any strong evidence to support it. So why is it so pervasive? And how far reaching is this concept?

Hans Schroder: Everywhere, It has reached everywhere. And, in my mind, this is the most brilliant marketing campaign in history because it explains suffering not from human experience, but from something inside you, inside the brain. A chemical, a neurotransmitter. So it takes away the blame for the person, and there's some appeal to this notion obviously. It's not my fault, it's my chemical's fault, it's my gene's fault, it's my brain's fault. There's a lot of appeal to that. 

We actually just did a survey of college students and asked them, have you ever heard of the chemical imbalance theory? And where did you hear it? And we expected people would say, well, I heard about it on TV, or I saw a YouTube video on it, or my healthcare provider told me. But the number one answer was in the classroom. People heard about the chemical imbalance theory from their professors that were teaching psychology courses. So it is permeated everywhere, even in the institutions of learning. And these notions that, again, haven't been predicated on any scientific discoveries, but this cultural narrative is so ingrained that students are learning about it in the classroom.

Jesse: Do you have a sense of how the idea of distress, or diagnosis, coming from biology or coming from a chemical imbalance, do you have a sense of how that affects the person diagnosed? How they're perceived? 

Hans Schroder: Yes. So a lot of research has looked at these, what we call biogenetic beliefs and narratives, on aspects of stigma. So there was a summary paper a couple of years ago that found these biogenetic narratives do decrease blame. So people who are exposed to these narratives feel less blame for themselves. They blame people less if a mental health problem is construed in biological terms. However, other aspects of stigma are increased. So when genetics or neurobiology are invoked people perceive individuals with mental health problems as more dangerous. They want to get more distance from them, and they have a sense of othering. They feel like they're very different from me, if something is faulty in their genetics or biology. 

Jesse: Is there any research validating the idea that someone with a diagnosis is more dangerous than anyone else?

Hans Schroder: No. That data has been out for a while that people with mental health problems are no more dangerous than anyone else. 

Jesse: Is there any other way of framing it that could see the symptoms and the diagnosis recognized, and taken seriously, without framing it as a chemical imbalance? 

Hans Schroder: My research right now is focused on coming up with alternative narratives, and the one that I've kind of landed on is seeing depression as a signal that something in life is not working, that something in life needs more attention. The idea is that depression is telling you, it's functional, it's telling you something really important. And I lead groups at the partial hospital program here, where we talk about depression is telling us that maybe we need to look at our relationships, intimate relationships, family relationships, friendships, work relationships. Maybe we need to look at traumas that we've experienced to understand them. Maybe we need to look back to childhood, what was going on there? What messages were received about emotion? About ourselves? It's trying to spark curiosity about why this came to be. I view this narrative as an alternative to this chemical imbalance idea because again, the information processing kind of stops at chemical. Oh, it's biological, don't need to be curious about that anymore. Whereas if it's a signal, let's figure out what the signal is telling us about our lives. 

I think for me, it's not downplaying that there are genetic or biological components to these things. It's more about the narrative. So for patients I would say, keep in mind that all of these things are complex, that there is really no simplistic explanation for what you're experiencing. And I would say for providers, be very mindful of language, because language really matters. I spoke with a primary care doctor last year who said she has one minute to convince people that mental health is worth talking about, and 30 seconds to explain why medications might be helpful, so she's using chemical imbalance narrative to do that. That is really unfortunate to me because those messages, the data are consistently showing, are not helpful for recovery. 

Michelle: If I was going to consider going to a mental health professional again, I would consider Dr. Schroder. 

Jesse: That's high praise. 

Michelle: That is very high praise. 

Jim: I had a similar reaction. So, I really liked a lot of what Dr. Schroder was saying there, in terms of emphasizing the importance of narratives and shaping the way people think about mental illness. The implications of narratives are hugely important. But there was one thing that seemed to be really missing from the thought process or the narratives that he was describing, which are the social and structural factors that are massively important, right? So the things that he was talking about were still really focused at either the individual level, or individual and their kind of like small social context. So their own individual relationships. But you know what was left out are these broader structural factors like capitalism, like the fact that we are social animals that evolved to live in tight-knit groups of people that we knew closely and we were constantly surrounded by. And so, I'm a big fan of the push and the shift in the narrative there, but until we start thinking about these things in more structural terms, the shifts in thought and the shifts in narrative end up reinforcing the idea that the problems are at the individual, or a really small group, level. 

Michelle: I think that you're raising a fair point that sometimes these pushbacks and solutions to things then just create their own problems. Because we have the same foundational problem, which is like we're trying to find just good marketing to combat this previous marketing campaign. Which means we're finding simplicity and we're trying to, you know, simplify things. You know, from, like, the LGBTQIA community kind of standpoint, there are a lot of people who have problems with like, “born this way”, or “It's not a choice”. Because some of those things were really important things to get across to people, so that they would understand some sort of concept going on here, but it did actually create its own problems. Which is, well, born this way implies I have a gene that's the gay gene, or it's not a choice provides its own erasure of people who are, you know, bisexual, or fluid, or change their minds on these things, or aren't sure who they are. Sometimes these much needed, and much applauded, solutions then create their own problems.

Jesse: Those are all really important things to consider. Being aware of the societal and structural factors that may be contributing to the distress experienced by an individual is incredibly important. But I don't think the signal narrative actually excludes that. My understanding of the signal narrative is that it is meant to encourage curiosity about where the signal is coming. So that curiosity may lead some people to question the larger societal factors contributing to whatever it is that they're experiencing. And I think one reason that this could be a step in the right direction is that the current dominant narrative, the chemical imbalance notion, is often internalized as meaning that the source of the distress is in the individual. So providing an alternative narrative which reframes the source of the distress as a question to be explored, rather than a biological certainty, feels to me like a positive change. A change that is necessary, because you can see this idea of a biological or chemical origin to the symptoms of mental illness influencing policy makers who are actively pushing to find new ways to strip people of their rights. 

Michelle: My ultimate point is that Dr. Schroder is doing, I think, excellent work. I commend them on it, and also I do think it is important to embrace that great work with a bit of caution and keeping larger context in mind. And that's it. 

Jim: Yeah, I'm not coming after the Schroder.

Jesse: And I'm sure “The Schroder” appreciates that.

Michelle: Great. (laughter)

Jesse: Okay, so I wanted to end this episode by returning to the end of the interview with Ian Pettycrew, where I asked if there's anything else about the commitment process in Arizona that is important to know. 

Ian Pettycrew: It's an unfortunate process. Obviously it's just like anything else the government provides, more money would equal better service. I've had personal experience where I've filled out the COE form to have a family member go into the system. And it was something obviously I thought about very hard and you know, I was not happy to do it, but I was just in a situation where I didn't have a choice I felt, for the safety of the family member, and they went to one of the three screening facilities. Each facility is a little different, but most of them have a large room with about 20 to 30 barcaloungers, so chairs that can flatten out and turn into uncomfortable beds. But they're just in like a high school cafeteria and there's no separation between the men and the women usually. At least not a physical separation. You know, they may have a men's section and a women's section, and that's, you know, where people sometimes spend three to four to seven days. And I don't know how they can sleep in that situation. I don't think I could. They're given like a blanket and that's it. Maybe a pillow if they ask for a pillow, but they wanna make it as safe an environment as possible. So pillows are sometimes not deemed to be safe. It's not a pleasant thing for anybody, but sometimes it is necessary. Again, nothing's gonna change unless they get more funding and they can build better facilities, because that's what it is, it's basically just the facility itself is set up this way. 

Jesse: I have great empathy for anyone who sees someone that they love experiencing acute distress and feels that forcing that person into one of these facilities is the only option. Because these facilities, this entire process, inherently brings a significant risk of trauma to the person being forced into it. But more funding isn't going to prevent that trauma, not really. It might mitigate some of the discomfort, but any system that strips people of their rights and uses coercion, force, and violence as tools for treatment is inherently going to be traumatic. 

Michelle: I mean, it reminds me of one of the conversations that's been going on in Massachusetts while they try to build a new women's prison, even though we have one of the smallest incarceration rates of women in the entire country, but we need to build a new one that's bigger and has more units. But a lot of the conversation around building this is like how it's going to be trauma informed. Like, that's this phrase that they love. Like, it's gonna be trauma informed, like we're gonna be able to find a way so that when we strip these people of their rights and force them into this place, they'll get treatment for trauma and we'll be cautious about trauma. Like, completely ignoring the first half of that sentence. There is no way to make incarceration not traumatic. There is no way to make this not traumatic. So yeah, more funding because I assure you I alone need like minimum eight blankets, so I'm gonna need more than one. But yeah, having more blankets is just going to make me warmer while I'm having a complete breakdown because I have just been stripped of all of my rights and I'm freaking out. Jesse: Okay, so next time on Committable, we'll be talking about mental health laws in Connecticut.

Jesse: Committable is produced by Jim McQueen. Michelle Stockman and me, Jesse Mangan. All music is from the Song Reasonable by Christopher G. Brown.

S3 Episode 11: Texas transcript

Jesse: This is Committable, a podcast about involuntary commitments. I'm Jesse Mangan and I'm here with Committable producer Michelle Stockman. 

Michelle: Hello.

Jesse: And for this episode, we are going to be talking about mental health laws in Texas.

Michelle: I'm a little scared for Texas, I won't lie.

Jesse: Honestly, I'm a little scared of every mental health law, but in this case I think we have an excellent guide because to learn more about mental health laws in Texas, I spoke with Cindy Gibson. 

Cindy Gibson: My name is Cindy Gibson, and I work for Disability Rights Texas. I supervise investigators who go into state hospitals and private psychiatric hospitals and jails to monitor for abuse and neglect or rights violations. We also represent individuals who feel that their rights have been violated, or that they have been abused and neglected.

Jesse: So, in Texas the mental health law is the Texas Mental Health Code. It's the part of the Texas Health and Safety Code that deals specifically with admissions and discharges from psychiatric hospitals. And Texas, like every state, has a detention for evaluation process within their laws. This process is often what starts someone on the path to a civil commitment. So I asked Cindy, how does that detention for evaluation process work in Texas? 

Cindy Gibson: Well, actually in Texas we have several ways it can start. So one of the ways it can start is with a peace officer. Any member of law enforcement can do what's called an emergency detention if the police have reason to believe that you may be dangerous to yourself or to another person. The officer can detain you and take you to the nearest hospital or clinic to be evaluated to determine whether you need to be detained in a psychiatric hospital. Another way you can get there is through a warrant. Literally, anybody in the state of Texas can go to a magistrate and apply for a warrant to commit somebody, to basically do an emergency detention, without law enforcement. The magistrate reviews the warrant application and decides whether or not the individual needs to be detained and transported for evaluation for emergency commitment. And then the third way you can be detained is if you have a guardian. A guardian can transport you to a psychiatric hospital and that psychiatric hospital has to accept you for evaluation, for emergency detention.

Jesse: If someone in the community applies to have another person evaluated and the magistrate approves, do they then send peace officers to get that person and bring them in?

Cindy Gibson: Yes, the magistrate will issue a warrant, and that warrant will direct law enforcement to detain the individual and transport them to the nearest acceptable facility. 

Jesse: For the person going through that process, do they have the right to a hearing? To appear before a magistrate or a judge? 

Cindy Gibson: No. In fact, the magistrate can decide before he issues a warrant that he wants to interview or talk to the individual, but that rarely if ever happens. So, during the emergency detention process you have no right to a hearing. You're detained, you have a right to know why you're detained and where you're detained, and to be evaluated within 12 hours by a physician, but the door isn't open yet for a hearing. And the main reason is that you're only being detained, you're not being committed to treatment. So at that point, you can't be forcibly treated. You can only be detained to determine whether there is a need, or further need, for treatment. 

Jesse: Okay, so at this point in the process a person is being detained and within 12 hours there's an evaluation. If the physician or clinician decides this person does need to be held for treatment, what happens next? 

Cindy Gibson: So, what happens next is from the point that the individual is brought to the facility, which includes the time that he or she waits for the evaluation, the facility can admit the person, or they can be transported to a facility that will admit the person. And they can be detained for 48 hours. So that 48 hours does not include weekends, it does, okay, so it's a little complicated. Because if the 48 hours ends on the weekend or a holiday, you have to wait till the next business day. So if you go in on a Friday, the weekend counts and your time expires on that following Monday. But if you go in, for example, for people that were brought in, say on Tuesday night, Thanksgiving week, and the 48 hours would end on Thursday. If they were brought in on Tuesday, they have to stay Thursday and Friday because those are holidays Saturday and Sunday because those are the weekend days. And then the first time that they would be eligible for release is at nine o'clock Monday morning. So it's 48 hours, but depending on your luck and what month it is and what day it is, you can be held for longer than 48. 

Michelle: It continues to boggle my mind that our holidays can really screw someone over so significantly. And there's in fact all of these pushes to increase mental health awareness around the holidays and to increase hotlines being staffed, and you know, we learned that not all hotlines are really great in season two. 

Jesse: Yeah, this has always confused me because my very first psychiatric detention happened on a Wednesday night. It was supposed to be a 72 hour hold, and I was told by staff at the psych ward that the earliest I could leave was Monday, because there would be no one on staff who could discharge me on the weekends. Which seems so obviously problematic. I assume the argument for why this is happening is staff shortages, or something like that, but I think a good general rule to follow is that if you don't have enough staff to discharge someone, then you probably shouldn't be allowed to detain them.

Michelle: That is a reasonable rule as far as I'm concerned.

Jesse: Okay, so we're discussing the detention for evaluation process where someone can be involuntarily detained in an ER or a psychiatric facility for evaluation. So my next question for Cindy was, if at the end of this evaluation the facility decides that they want to keep this person inpatient longer, what happens then?

Cindy Gibson: They have two options. The first option is the person can agree that they need help, which does happen, and the person can sign a voluntary admission. And even though it's called a voluntary admission, it is actually a commitment, you are volunteering yourself to be committed. So if you voluntarily admit yourself and you say, oh wait, I made a terrible mistake and I don't wanna be voluntarily admitted, you have to request release. And the facility has 24 hours, which is business days, to evaluate you and determine whether or not they're going to release you or go to the next step, which is what I'm about to talk about. Because the second option, if a person says, no way, I don't wanna be admitted, I wanna go home, the facility can file for what is called an order of protective custody. An order of protective custody is an order signed by a judge. In Texas it's a probate judge, the same judges that do wills and guardianships. And if the judge accepts the application for an order of protective custody, then you can be held for 72 hours before you have a hearing with a judge. 

Jesse: So, the judge will sign this order that starts the three business day clock, and at some point you get a hearing. What does that hearing look like? Is the facility providing their own lawyer and then you get some sort of defense attorney?

Cindy Gibson: The way that works is, at the first hearing, which is the probable cause hearing, which is the hearing that occurs after 72 hours or three business days. So in the court you have an attorney, that attorney is appointed by the court, and you can go to your hearing and present your case to a judge. And the state, who is bringing you to the hearing, it's not actually the facility, it's the state, is represented by the county attorney's office. And then the judge makes a decision whether or not you can continue to be detained based on probable cause, or you're released. If the judge says there's not probable cause and you're released, then effectively you can be released straight from the court, the hospital no longer has the authority to even make you go back to the hospital to discharge. If the judge determines that there is probable cause to keep detaining you then you can be detained a total of 14 days on an order of protective custody, which includes the three days that you were waiting for your hearing. So, technically, an order of protective custody is 14 days if the judge approves for you to be detained for the entire time. 

Michelle: Okay, so 14 days and then you get your probable cause hearing.

Jesse: Uh, no. 

Michelle: No. 

Jesse: Okay, this can all get really complicated, so let's do a recap. 

Michelle: Okay. 

Jesse: First, there is the detention for evaluation process, and there are three ways that can be initiated. First is with an emergency detention, that is where a peace officer apprehends you on the spot and brings you to a facility for evaluation. The next way a detention for evaluation can be initiated is with a warrant. This is where anyone in the state can apply to have a magistrate issue a warrant to have someone else detained for evaluation. 

Michelle: Don't forget any guardian. 

Jesse: Yes, right. 

Michelle: And Britney Spears taught us that there's no issues with those.

Jesse: Uh…yes. It's a valuable lesson and we should all be paying more attention to guardianships and how they can be abused. 

Michelle: Continue. 

Jesse: Okay, so that initial detention for evaluation is 48 hours, or two business days to be more precise. And at the end of those two days the facility can apply for an order of protective custody. And this is where it gets a little confusing because as soon as that order of protective custody is approved a probable cause hearing is scheduled, which should happen within three days of that order of protective custody being signed. So the order of protective custody is 14 days total, but you are supposed to get a probable cause hearing three days into that 14 day period of detention. 

Michelle: So the hearing happens in the middle of the 14 days? Potentially? 

Jesse: I would say it's more towards the beginning of the 14 days but essentially, yes. 

Michelle: If it goes well for you do you still have to finish the 14 days?

Jesse: No, if a judge decides in your favor then you should be immediately released. But most people who go to one of these probable cause hearings do end up being committed. And not only do they automatically give you a date for a probable cause hearing when that order of protective custody is signed, they also automatically schedule you for commitment hearing. And that is supposed to happen at the end of that 14 days.

Michelle: They just go ahead and pick a hearing out of the gate because they're like, there is barely a chance that you will not need one of these?

Jesse: Possibly? It might be that the probable cause hearing and the commitment hearing are being scheduled at the same time merely as a matter of convenience. Because regardless of the outcome of the probable cause hearing, the law has already clearly defined when that commitment hearing is supposed to take place, if the process does actually reach that step. But that commitment hearing is supposed to be sort of the final legal check in this process before someone gets committed for an even longer period of time. So, my next question for Cindy was, what happens at that commitment hearing? What does that hearing look like? 

Cindy Gibson: At the commitment hearing you can be committed, it used to be 90 days, but the state changed that law back in 2018 so that it is 45 days. But the judge has discretion to lengthen it up to 90 days if he doesn't think 45 days is enough, but if he doesn't specify, it's 45. At that hearing, you have the original certificate of medical examination by the doctor who originally thought that there was probable cause, but then you have to also be evaluated by another doctor. One of the two doctors has to be a psychiatrist and can't be the doctor involved in your treatment. So, the second doctor evaluates you and fills out an additional certificate of medical examination. Both of those certificates of medical examination have to be submitted to the court and one of the two physicians that filled out the certificate of medical examination have to be present at the hearing and you're represented by the same attorney who represented you at your probable cause hearing. And the majority of people who go to court for a commitment hearing are committed. There are people who win their commitment hearings and it's all dependent on whether they have an attorney who is actually invested in helping them not be committed. I mean, in reality, all of the attorneys that represent proposed patients are appointed by the court, except for the handful that work for public defenders offices in the larger cities. They're just sort of appointed private attorneys who get paid very little and really have not a broad breadth of knowledge about mental health. So these hearings tend to go real fast and the majority of people get committed, especially if they're in a public or state hospital. Private hospitals have this practice where they get the order of protective custody, they go to the probable cause hearing, they can hold the person up to the day of their commitment hearing, and they then let 'em go that morning and say, well, we decided not to go forward with a temporary commitment so you can leave. In the private hospitals that tends to remarkably coincide with how long the insurance company is willing to continue to pay for the stay. 

Jesse: So there are checks and balances in the system but it's really complicated because it seems like the easiest way out is, basically, to do what you're told?

Cindy Gibson: You know, I hate giving people that advice because obviously I'm an advocate and I want people to stand up for their rights, but it's really difficult. I mean, it's the same reason why in criminal courts people end up doing the plea bargain because in order to go through the entire court process to prove that you're not guilty for a sentence that would be less than the time you're sitting in jail waiting for a hearing, becomes attractive. In the criminal system people who have their own attorneys turn out much better than people who get court appointed attorneys, and that's not different in the civil mental health system. Your representation is only as good as how much that court appointed attorney wants to work for you and has the time to do the work that's necessary to.

Michelle: I will be honest, when she was explaining some of this I feel like my brain just completely blanked out. Because it sounded like a comedy routine, like a comedy routine about someone explaining a very complicated game. Like, it's so unnecessarily complicated, and I understand there was some level of checks and balances, but to have something that complicated almost feels like it makes checks and balances virtually irrelevant. And I also want to mention that, you know, when we talk about things like probable cause and, you know, danger to others, I mean, for a lot of people sure they're gonna find other ways of saying this, but for a lot of people, does that person seem dangerous? Is the same question as are you black?

Jesse: Yeah. I've never seen a mental health law anywhere in the US that effectively checks the bias of the clinician. And think about the authority given to the general public? Law enforcement can at any time decide to use an emergency detention to involuntarily confine someone for evaluation, but on top of that, any member of the community can apply to have a magistrate issue a warrant to have someone else detained for evaluation. A warrant that will be carried out by police. So the law gives any community member the capacity to weaponize the police against someone else they view as strange, different, deviant, or dangerous. And once you go through this process, even if only once, you can become marginalized and stigmatized in a whole new way. 

Michelle: And I know that we're talking about a lot of families, we're talking about families, and I know, I know a lot of families feel very overwhelmed if they have a loved one in distress. And I don't want to diminish that. But I do also feel like an important part of making people aware of what's going on here is to make people aware that when you have the best intentions for your loved ones, sometimes the system isn't gonna be as much help to them as you want it to be, or as you think it might be. Because, I know that there are many, many people who feel these systems have helped them, and I also don't wanna diminish that, that there are people out there who say, I got the help I needed. This was really powerful for me. I'm so glad a family member intervened. But that you are taking a huge risk that that's gonna be the outcome instead of a lifetime of further trauma.

Jesse: Yeah. There are so many perspectives that need to be considered when thinking about mental health laws, but the most important perspective, the one that always needs to be centered, is the perspective of the people who are being forced through these systems. And that was one of the things that really resonated with me when talking with Cindy.

Cindy Gibson: One of the reasons I got into this business is because when I was 18, I was committed to a state hospital and I was there for three years. The only reason I was able to get out of the hospital was because of a federal lawsuit in Texas that was suing the state for the conditions of the state hospitals, and the lack of treatment and not getting people out. So I was released because of that lawsuit and I haven't really been back to a state hospital since then. But at the time I was in college for psychology, I wanted to be a psychologist. I know I got a real inside education on that. I knew that if I ever wanted to be a licensed psychologist, all of that would come up and I would have to discuss why I was in a state hospital for three years, other than I was girl severely interrupted. So it really does have an impact on people's lives and, you know, you have the Americans with Disabilities Act and you can ask for accommodations. But if you have a mental illness and you've been involuntarily committed you automatically get all of these different levels of review if you want to pursue certain types of careers. And there isn't a discussion, for instance if you want to be a nurse, about how to accommodate mental illness. Or even driving. If you're on psychotropic medication you're supposed to tell the police that you're on psychotropic medication. And then they have a medical committee that reviews to determine whether you can drive, so nobody says they are. I mean, essentially everybody lies on the application for a driver's license. They ask what medications you're on because if you put down a whole list of mental illnesses and then you list what it's for, they're gonna review your application to determine whether you should drive. 

Jesse: One of the ways that people might try to change the conversation in society about situations like this would be for people with lived experience to get positions where they do have some sort of authority, or they are interacting with these situations. But it seems like there's a selection process inherent in the system. If you've gone through this system, you are much less likely to be able to have an elevated voice, or a voice of authority. 

Cindy Gibson: When I got outta the hospital, I pretty much didn't wanna have anything to do with anything related to mental health. I just wanted to stay low and get a job. But I ended up working for an advocacy group that was individuals with lived experience. And from there I worked for the state trying to change rules and laws, but it's very hard. Much like people with other conditions or situations that create bias. When you're someone that is known to have had a mental illness, you hear that you're very articulate, you have such passion, but you really have to fight to be taken seriously. Which is one of the reasons I came to Disability Rights Texas, because I work for an attorney and they don't have to listen to me but if they don't listen to me, then they have to listen to my supervising attorney. And so, it gives me more latitude to basically advocate for other people. Cause I know I have backup from an attorney. 

Jesse: I find it so frustrating that something like a commitment, which in and of itself doesn't mean anything. Being committed just means that at some point in time some legally authorized person had an opinion about you. And if anyone should be considered an expert on the impact of the commitment process it should be the people who have experienced them firsthand. And yet simply having a record that documents that you went through a commitment automatically creates all of these barriers that can prevent you from being able to influence the system that you went through.

Michelle: I mean, not just barriers, but in some cases they're acting as actual funnels. Both you and Cassidy's story start with academia, and start with asking for help in what seems like an innocuous and innocent way. That's not just a barrier for you to go back to academia. You're aware of the fact that being within academia is potentially a part of why this happened in the first place. I mean, I don't know how yours and Cassidy's stories may have changed if you had been in a different world. So, yeah, I mean, it's not only what else can you do because of these barriers but it's also what's safe for you, you know? Where can you be honest and articulate and voice these things and be safe as well?

Jesse: Yeah, I don’t know. Podcasting, maybe? 

Michelle: Alright, good point. 

Jesse: Alright, next time on Committable, we'll be talking about mental health laws in Arizona. Michelle: Mm-hmm. . 

Jesse: And we just might be put in a position where we have to talk about the chemical imbalance theory. 

Michelle: Oh, damn… 

Jesse: Yeah, I'm putting “theory” in air quotes there.

Jesse: Committable is produced by Jim McQuaid,. Michelle Stockman and me, Jesse Mangan. All music is from the Song Reasonable by Christopher G. Brown.

S3 Episode 10: West Virginia transcript

Jesse: This is Committable, a podcast about involuntary commitments. I'm Jesse Mangan and I'm here with Committable producer Jim McQuaid. 

Jim: You've already announced me, so I don't need to say anything. So, Acknowledge. 

Jesse: Alright, it's gonna be one of those episodes, which is totally fine because this episode we are doing things a bit different. Normally this season every episode we talk about mental health laws within one specific state. But for this episode we're going to take a slightly broader view and talk about some of the systems around those laws. Specifically, we are going to talk about Protection & Advocacy organizations and the federal laws that support them. And to learn more about those laws I spoke with Jason Parmer. 

Jason Parmer: My name's Jason Parmer, I'm an attorney with Disability Rights West Virginia. Disability Rights West Virginia is a Protection & Advocacy agency, and we advocate for the rights of individuals with disabilities wherever they may reside. P&As monitor, investigate, and attempt to remedy adverse conditions in large, and small, public and private facilities that care for people with disabilities. So we go all over and monitor prisons, nursing facilities, psychiatric hospitals, talk to the patients there and talk to the staff and just try to determine what's going on and whether we need to advocate for anyone in particular.

Jesse: So we've talked a lot this season about how mental health laws vary from state to state, but one of the things that distinguishes Protection & Advocacy organizations is that they receive federal funding to advocate for people with disabilities within a specific state. So I asked Jason, what responsibilities come with that federal funding? How do P&As fulfill those federal obligations while navigating state systems? 

Jason Parmer: What we do is, try to ensure that state operated facilities comply with both state and federal regulations. There are regulations that apply to psychiatric hospitals and nursing facilities, so we try to monitor those facilities to make sure that the patient's rights are being respected. There's a grievance process, for instance, so if a patient has a grievance with the way things are happening and they aren't able to sort it out informally, that they're able to go through channels to try to improve the conditions that they're in. But the P&As were initially designed to monitor state systems, and to ensure that they are operating as they should. 

Jesse: So an example of a way in which a P&A organization could become involved with someone in a psychiatric facility might be, there would be a public defender or some sort of attorney assigned to defend the person, or represent the person, during the court hearing. But once the person is in a facility, if they have concerns about their rights, they could reach out to a P&A organization and ask that that organization come and talk with them, or come to the facility and talk with them. 

Jason Parmer: Yes, and that's something we try to do. And I used to be a public defender, and I try to cultivate our ties with public defenders because technically patients are represented by public defenders sometimes when they're in the hospitals. But the system is unfamiliar to public defenders sometimes. So we are kind of a backup for the patients and the people in hospitals. And so we try to work together with the PDs to ensure that, you know, when someone's there, they're receiving treatment and they're progressing and not just stalled in the hospital with no prospect of getting out. 

Jesse: What federal laws are you looking to when you go in to sort of monitor the standards of the facility to determine whether or not rights are being met?

Jason Parmer: I mean, the right to treatment itself is a constitutional right, established by Youngberg versus Romeo. It's that people have a due process right when you're institutionalized in a hospital to receive treatment. That's sometimes a problem for people with developmental disabilities who are in psychiatric hospitals because people with developmental disabilities do not require the same type of treatment. Often they need help with activities of daily living, and there's not really any kind of medication that will help a person with intellectual disabilities improve, it's just skill building. And that's something that is difficult to do in a psychiatric hospital setting. So when you have a person with intellectual disability who's committed to a hospital through the involuntary commitment system, It can not be a good situation sometimes, and some states actually don't allow people with intellectual disabilities to be committed to psychiatric hospitals because of that reason, they can't receive treatment the way that they should.

Jesse: So you mentioned the law, was it Youngberg versus uh…

Jason Parmer: it's Youngberg versus Romeo.

Jesse: Youngberg versus Romeo.

Jason Parmer: Yes. 

Jesse: Can you talk a little bit about what this law established? 

Jason Parmer: Okay, so Youngberg versus Romeo is a case decided in 1982 by the United States Supreme Court, and it's founded in due process, and freedom from bodily restraint. As a public defenderI've always found this case compelling. The rights implicated by involuntary commitment, you are being restrained, your liberty from bodily restraint is being restricted, and there's a quote from Youngberg that's, “Liberty from bodily restraint has always been recognized as the core of the liberty protected by the due process clause from arbitrary governmental action.This interest survives criminal conviction and incarceration. Similarly, it must also survive involuntary commitment.” 

So,not only do you have a right to freedom from bodily restraint, but you have a right to treatment when you're in a facility to prevent you from being restrained while you're in the hospital. So, you know, while you're in a hospital, you're restrained, and you can also have mechanical restraints placed on you, where you're strapped into a chair. That used to happen more in the past, there are a lot of regulations that restrict physical restraints and chemical restraints with medication. The right that you have under Youngberg versus Romeo is a right to what they call training and habilitation to prevent you from having to be restrained and to try to help you live independently and be able to get outta the hospital. 

In a nutshell, Youngberg establishes a right to treatment for people who are involuntarily committed, so that's a constitutional right. And it often, it goes without saying because everyone in the hospital knows that if you're there you should be treated. But again, that is an issue that often comes up for people with intellectual disabilities who are in a psychiatric hospital cause it's just not really the right setting for them a lot of the time.

Jim: I had not been aware, I think anyway, that developmental disabilities could land you in a psych facility.

Jesse: It actually varies quite a bit depending on the state. Some states have a really broad definitions of what types of conditions, or symptoms, can lead to detention in a psych facility. Other states are really specific in those definitions and only allow commitments for symptoms of a mental illness. But even in the states that do have narrow definitions, that only allow for people to be committed for symptoms of a mental illness, even in those states there is virtually no check against the opinion of a clinician in the early stages of the commitment process. So if a clinician observes symptoms, but doesn't really understand whether those symptoms are connected to a diagnosable mental illness, or a developmental disability, or an intellectual disability, that clinician can detain the person and, essentially, just sort out the details later. 

Jim: Psych facilities are basically, you are not a criminal, but not someone we want around. It doesn't have to be a mental health issue, it could be, you know, developmental disability, it could be some kind of cognitive decline, it could be anything. But we're just gonna, this is where we put you. 

Jesse: Yeah, it often seems like confining someone in a psych facility is the default action taken when the system has failed that person at every other step along the way. Whatever the underlying reason for that person's distress might be, safe and respectful community-based treatment should be made available and encouraged before involuntary confinement is ever even considered. And there was actually a Supreme Court case that attempted to address some of these issues, Olmstead versus LC.

Jason Parmer: Olmstead is a Supreme Court case that interprets the Americans with Disabilities Act, and even before that there's the Rehabilitation Act. But the Rehabilitation Act was passed back in the seventies and it prohibits discrimination against individuals solely by reason of disability, by any program or activity that receives federal funding. So, if you receive federal funding, you couldn't discriminate against people on the basis of disability. That was expanded in the Americans with Disabilities Act to prohibit discrimination by any entity that operates as a place of public accommodation. And there are different titles, the title two of the ADA pertains to public and state governments. And there are other titles that pertain to, like, train stations, public accommodations, airports, ADA applies to that, the post office, any place where the public goes. But Title two pertains specifically to state and local governments. 

So the Olmstead case came up in the late nineties, and it had to do with two people, Lois Curtis and Elaine Wilson, who had mental illness and developmental disabilities, and they were voluntarily admitted to a psychiatric unit in the state run Georgia Regional Hospital. Following the women's medical treatment there, they were deemed ready for release by medical professionals there. However, the women remained confined for several years after their initial treatment was concluded because there was no placement for them. So they filed suit and the case went up to the United States Supreme Court in a case called Olmstead versus LC in 1999. In Olmstead, the court found that a state is obligated to provide community-based treatment for people with disabilities if;

One, the state's treatment professionals found community-based treatment appropriate. 

Two, the affected individuals do not oppose community-based treatment, because some people would prefer to be in an institution, so you have to take into account the person's wishes. 

And three, the community placement can be reasonably accommodated taking into account the state's resources and the needs of others with similar disabilities. And there's a defense that the state can raise called a fundamental alteration defense. If the state can demonstrate that modifications would fundamentally alter the nature of services, programs, or activities that they offer, then the ADA may not require an accommodation in that. 

So this Olmstead is really the keystone for community treatment. It establishes a right under the Americans with Disabilities Act to community-based treatment, if it's available and if the person wants it, and if it can be reasonably accommodated by the state. But since Olmstead, I mean the United States Department of Justice has pages dedicated to litigation that it participates in that's related to Olmstead, for nursing facilities, workshops, Medicaid services, mental health facilities, institutions for people with intellectual or developmental disabilities, persons at risk of institutionalization, education. Olmstead and the ADA touch a lot of areas, and the Department of Justice has been actively involved for the last 20 years in litigating in these areas. And it really helps the P&As see what happens in other states. I look at Olmstead decisions in other states to see what's been required, you know. North Dakota had a settlement last year on their nursing facilities, so I look at that and see what is the DOJ requiring North Dakota to do, and how can I use this to help people in West Virginia? Because the ADA is a federal law, it applies to all state governments. So, you know, what happens in North Dakota, something similar could happen here, just depends on the facts of the case. And P&As work with the DOJ to determine what the situations are on the ground because P&As are kind of the boots on the ground in monitoring. And so we understand where the problems are and so sometimes what we do, and I do, is file an Olmstead complaint on behalf of an individual, or a few individuals, who are in a similar situation and have it reviewed by the DOJ and see if they want to act. If the DOJ does say, yes, we will help you. I mean, you can imagine having someone from the Department of Justice come in and start helping you on a case, trying to get someone out of a hospital, it's a great help. I complain to the West Virginia DHHR all the time, but I don't always have a Federal prosecutor with me when I'm doing it. So, it helps and I really appreciate the assistance that they give to the P&As. 

But Olmstead and the ADA are really the legal mechanism for people to get out of institutions and to get community-based treatment. 

Jim: I'm wondering if there are states that have gone through this, been told, okay, you need to do more community treatment, that have collectively said, oh, Wow. Yes, we really should. And we're gonna take this extremely seriously, and I know it sounds like I'm joking or whatever, but seriously, like, is, is this a bunch of states dragging their feet not wanting to do it? Or saying they can't do it? Or maybe they're just really, they don't have the resources? Are there times when this has led to states like, yeah, this is a moment of self-reflection and we're gonna do this?

Jesse: There's often this institutional resistance to change, particularly change that centers the needs of the person who's being pushed through the institution. And let's assume that's not malice, that is not intentional, then what is it? Why are these state and local institutions so slow, and so resistant to change? 

Jason Parmer: Well, inertia is a real thing in state government and you know, we have been arresting people in crisis for a long time. We've been involuntarily committing people who we don't know, the family, it's just at the end of their rope and they don't know what else to do. And, you know, who do you call when someone's in crisis? So what we have in place now has not changed for a long time. And just changing a system requires, you know, public education, I think to help the public understand that people in crisis can be helped in another way. But in order to convince someone of that you actually have to have a system that works in place and has results. And other states have done that. There's communities around the country that have examples of crisis care, but all communities' needs are different too. I mean, you have different types of people living in different places, but there are models out there that  can be followed. It's just convincing the folks in law enforcement, in corrections, in the Department of Health and Human Resources, in the legislature that the system needs to change. And have them all agree on how it would change. That's the difficulty, is getting all these parts of state government together at the table to talk about their problems and then come up with solutions. 

State governments, and I think government in general, tend to work in silos. You know, law enforcement doesn't necessarily know what the Department of Health and Human Resources is doing, but their work affects each other. And Division of Corrections, you have people discharging from a prison who need nursing care, but no private nursing facility will take someone from a prison usually, because they're a convicted felon. So, problems with corrections affect the Department of Health and Human Resources because often, well, maybe not often, but sometimes discharged inmates will just be dropped off at a local hospital and end up involuntarily committed because that's the safety net. The safety net is a psychiatric hospital, because you can lock them up and they're being in theory taken care of, but really what they might need is nursing care. They don't need psychiatric care. But you can't, there's no facility of last resort for nursing facilities. You know, you can't make a nursing facility take someone, but a psychiatric hospital can't say no, just like a jail can't say no. If someone's arrested, the jail has to take them. If someone is involuntarily committed, the psychiatric hospital has to take them.

I mean, the difficulty is just getting state government to work together and see the problem the same. Everyone sees their own individual problems but, you know, part of what I try to do is get different parts of government together and have them see the problems overall, rather than just in their one silo.

The problems in facilities are really symptoms of a greater problem. And the problems that I often see are people unable to discharge out of facilities once they're in them. And that's really a symptom of a greater systemic problem of having undeveloped community-based services system in the state.

Jim: I can very easily imagine a world where the patient advocates are people that the hospitals are happy to see. There are, oh, there are rules that we're not following? Oh, okay, like, so help us understand what we're not doing and, you know, we’re overwhelmed. We have a lot of things to deal with. This doesn't have to be adversarial, and I'm not saying it's the P&As. You can have relationships between advocates and providers that are beneficial from a therapeutic perspective, and that help the patient, and that help the hospitals, and help everybody and just, oh my god. There are parts of this that are awful, and also just stupid. Just stupid. 

Jesse: Yeah, I think Jason framed it really well that all of these different institutions are operating within their own silos, and it can be really challenging to present a story that is compelling enough for people to see outside of their own silo. Which actually connects to the events that led to the formation of P&As, which is something that may have never happened without Geraldo Rivera's reporting on Willowbrook.

Jim: Was this like a worthwhile thing? Or is this like a stupid Geraldo Rivera bullshit piece? 

Jesse: No, it was a serious piece of journalism from Geraldo Rivera, called Willowbrook: The Last Great Disgrace.

Jim: it's called Willowbrook?

Jesse: Uh huh, you can find it online, and it really helped expose horrific systemic abuses of people being detained in an institution.

Jim: Jesus. Okay. 

Jesse: Jason helped explain more about what this Willowbrook investigation was and how it led to systemic change. 

Jason Parmer: You know, when the P&A system was developed in 1975, It was promoted by then New York State Senior Senator Jacob Javits after some publicity in New York about Willowbrook. Which was a report from Geraldo Rivera, back in a previous life of Geraldo's, titled Willowbrook: The Last Great Disgrace. It's on YouTube if you, you may have seen it already, but Jacob Javits was a state senator for New York and he advocated to have the P&A program a part of the 1975 Developmental Disabilities Act, and that was the first P&A. I mean, they didn't exist before then, and the DD Act, it asked the governor of every state to designate an agency to be the P&A. And to ensure that P&As are independent of service providers and they're also independent of state government. So that was some really great foresight, I think, because, the P&A does fill a gap between the system and the person, and the people involved in the system. There's a saying, “Nothing about us without us”. Well, I think the P&A tries to be the advocate for that person when the system is working without you, they're just working at you. 

You know, I give credit to our predecessors that realized that maybe a P&A would be a good idea, and creating the whole concept of it, because there is definitely a role to be played to navigate that difficult system. I mean, it takes years to understand all the moving parts and to figure out why systems act the way they do and why people are in the places they're in when they, you know, doctors say they shouldn't be in the hospital, but they are. And so I'm really, you know, fortunate to work at a P&A so that I can, you know, help navigate that system and learn to understand it. And then try to hopefully enlighten others to different ways the system could work. And better ways to help the folks that, you know, are in the institutions and really don't need to be. 

Jim: I love this guy. I just wanna just say I love him. 

Jesse: Well, I'm glad you love him. 

Jim: I also love you, Jesse. 

Jesse: Too late. 

Jim: Damn it. 

Jesse: (laughter)

Jim: So this has felt like the most hopeful interview. He's presenting, this is what needs to happen, we need to get people together, we need to get them outta their silos, communicating. But he seems almost explicitly like, this sense that these groups are siloed, they're not talking to each other, but if we could get them together something could happen. And I don't know, I feel more optimistic hearing him talk than I have, I think, anybody so far.

Jesse: Yeah, and I think this is why Protection and Advocacy organizations are so important. We need people who are independent of the systems, who understand what rights are supposed to be in place. Who can monitor and step into these really complex webs of interlocking federal, state, and local systems to try and figure out what needs to be done to help the person. 

Jim: I mean, what I'm hoping that this does is it makes me realize what a positive feeling is, so that way when we swing back the other way it feels that much worse to be slammed back down. So this is, I love this journey we’re on.

Jesse: Well, I'm glad you're loving this journey Jim, because next time on Committable we'll be talking about mental health laws in Texas.

Jesse: Committable is produced by Jim McQuaid, Michelle Stockman and me, Jesse Mangan. All music is from the Song Reasonable by Christopher G. Brown.

NYC: Equating a Disability with a Crime

Jesse: On November 29th, 2022, NYC Mayor Eric Adams made an announcement. He declared, “...an immediate shift in how we interpret our obligation to those in need…”. And this immediate shift involves encouraging police officers to target a wider range of people for involuntary hospitalizations, or as the mayor's administration has labeled them, “Mental Health Involuntary Removals”.

It has been over 20 years since the last time I was committed and I am still struggling to understand how to navigate society without being overwhelmed by the crippling fear that I might be committed again. But with routine, with familiarity, I become accustomed to the environment around me. I feel safer when I know how the system that I am surrounded by works. But I was not prepared to have all of that disrupted and ripped apart by a press conference. 

I don't know how to adjust to this, I don't know how to feel safe in this city anymore, but I have discovered that there are people who are pushing back, people who have been fighting these sorts of policies for a long time. Pushing back with cases like Baerga v. City of New York, a lawsuit that challenges the entire framework of a system that uses police officers as the primary first response to a person believed to be experiencing a mental health crisis. And to learn more about this case, and the ongoing struggle to protect the rights of all people forced into the commitment process, I spoke with Marinda Van Dalen. 

Marinda Van Dalen: Hi, I'm Marinda Van Dalen, I'm a staff attorney with New York Lawyers for the Public Interest, I work on disability justice and health justice issues. New York lawyers and a coalition of other law firms and disability rights organizations, and other advocates for people with mental disabilities, we brought litigation last year against the city of New York and the police department because the city's policy of police driven response to people experiencing mental health crises violates the Americans with Disabilities Act and other civil rights statutes. As well as the New York State and the United States Constitution.

Jesse: I think for some people the idea that these types of forced interventions involving police, the idea that that might be unconstitutional, might be shocking. Because as a culture we have become just…we've inherited this idea for a long time. People have become very accustomed to it. What rights is this sort of process violating? 

Marinda Van Dalen: People with disabilities, including people with mental disabilities, have constitutional rights. They have the right to be safe in their home. They have the right to bodily integrity. They have the right to be free of excessive force. They have the right to protections from civil rights laws, including Americans with Disabilities Act. Just as a person who has a physical disability is protected by the Americans with Disabilities Act, and should be able to access city services and receive city services like other New Yorkers and other people living in communities across the country, so should people with mental disabilities.

Jesse: And why is it important to be focusing on interactions between police officers and people perceived to have a serious mental illness? 

Marinda Van Dalen: Police officers should not be first responders when someone's experiencing a mental health crisis. When the police arrive, they escalate the situation.

And what people need in those circumstances is someone who can help de-escalate the situation. When the police arrive it's frequently with a fleet of cars, with the sirens blaring and the lights flashing. They make demands, they scream at people, they tell them what to do, and that is not an effective way to help somebody who's in crisis.

Tragically, we've seen all too frequently that in fact, the police in those circumstances use excessive force and tragically it results in fatalities and police killings of people experiencing mental health crises. And the mayor's new policy, the standard that they have is that the officer determines somebody is mentally ill and that they're unable to care for their basic needs. But really those two, supposed two standards, they collapse into one, right? Because if an officer determines someone's unable to take care of their basic needs, well what explanation is that officer gonna have other than that person has mental illness? And if there's a determination the person has mental illness, well then by definition, aren't they unable to take care of their basic human needs?

Really a gross oversimplification of a complex problem. 

Jesse: They specifically identify an apparent inability to meet basic needs for clothing, food, shelter, or healthcare. That's just describing poverty essentially. And if by witnessing those, any of those signs, an officer believes that it must be connected to some, I guess, emotional disturbance. What is it, emotional…

Marinda Van Dalen: Well, the New York City Patrol Guide, Police Department Patrol guide, designates people as EDPs, emotionally disturbed persons. Which of course the community finds horribly offensive. 

Jesse: The following are excerpts from an NYPD patrol guide:

EMOTIONALLY DISTURBED PERSON (EDP) - A person who appears to be mentally ill or temporarily deranged and is conducting himself in a manner which a police officer reasonably believes is likely to result in serious injury to himself or others.

Upon arrival at scene, assess situation as to threat of immediate serious physical injury to EDP, other persons present, or members of the service. Take cover, utilize protective shield if available and request additional personnel, if necessary. 

a. If emotionally disturbed person’s actions constitute immediate threat of serious physical injury or death to himself or others: (1) Take reasonable measures to terminate or prevent such behavior. Deadly physical force will be used only as a last resort to protect the life of persons or officers present.

These are the policies brought into a situation when police arrive, and police presence is essentially woven into the structure of mental health laws. Because, generally speaking, mental health laws can be broken into three different sections:

Apprehension for evaluation.

Evaluation.

And prolonged detention in a psychiatric facility…

Beth Haroules: If I could make a friendly amendment to your consideration of commitments, I would also include outpatient commitment. 

Jesse: This is Beth Haroules. 

Beth Haroules: So I'm Beth Haroules, I'm a senior staff attorney at the New York Civil Liberties Union, and we're the New York State affiliate of the American Civil Liberties Union. My external title is Director of Disability Justice Litigation. My docket is probably largely comprised of disability adjacent work. So it runs the gamut from acting as lead counsel in the Willowbrook case, which has been in our office since before I was born, but I'm the most recent attorney on that case. And we litigated Kendra's law in New York State when it was first enacted back in the late nineties. 

And we have at the NYCLU a new podcast, and it's Rights This Way. We have a lot of very interesting staff folks who have been engaging in discussions that are really well worth the time. 

Jesse: So, generally speaking, mental health laws can be divided into four different sections.

Apprehension for evaluation. 

Evaluation.

Prolonged detention in a psychiatric facility. 

And outpatient commitments, which in New York State were created by Kendra's Law. 

There are proposals from the Adams’ administration that touch on, at least to some degree, all four of those different sections. But the area that has seemed to receive the most focus is that first section, the apprehension for evaluation, which in the proposals is at times referred to as a 9.41. So I asked Beth, what is a 9.41? 

Beth Haroules: 9.41 is just shorthand for a mental hygiene arrest under the New York State Article IX Mental Hygiene Law. So it is the statutory hook that the NYPD will use when they interact with a person and take them off the street, or when they respond to a crisis call to 911, or now 988. For Kendra's Law it's a 9.60 order. They have a little bit less ability to make any decisions under 9.60 because you already have a court order, as opposed to the 9.41, which allows them to make an independent assessment. Because you're asking law enforcement, who are on the street, whose fundamental role is basically command and control and dealing with public disturbances and public safety issues, to make what is really a public health determination. That a person is presenting as if they have a mental illness, which oftentimes could be a substance issue that's manifesting or could be a health issue. Somebody who's in a diabetic coma, or in diabetic shock, insulin shock, could be presenting as if they are not fully capacitated. You also have developmental disabilities that will manifest as a potential mental illness issue. And then you have a secondary characteristic that needs to be met and evaluated by a law enforcement person, which is that the person presents a danger to self or others. 

But you're asking law enforcement already to make this determination that the person is mentally ill and that they're a danger. Someone else will make that decision about what happens next. But a mental hygiene arrest, which is what happens here, you are equating the ability of law enforcement to arrest a person, detain them, and forcibly transport them to a psychiatric facility or to a hospital, is effectively equating a disability with a crime. Because you're asking law enforcement to make those determinations and carry out that particular role. I mean, you know, we could get into probable cause for, you know, arrests and the like. The whole concept of probable cause and arrest when you're talking about a public health issue, a medical issue, is just so fundamentally foreign, but it's where we've gone in terms of a system that perverts and stigmatizes people with mental health issues. 

Jesse: If someone is being apprehended under a mental health arrest, would that police officer have the right to search their car? Search their bag? Search their belongin…

Beth Haroules: Yeah. 

Jesse: So usually you couldn't be searched without some sort of, something, uh…

Beth Haroules: Probable cause, right? There's something about here that's happening. It also, um, police have qualified immunity when they sweep a person up that way. So if they in fact engage in some sort of use of force, qualified immunity law is really bad, right? You know, what you do to folks that they have decided aren't entitled to dignity and humanity is, is really pretty much an obscenity. 

Jesse: Interpreting the rights of people being pushed into an involuntary hospitalization is like a game of telephone. There is a federal constitution, there is a state constitution, there is a state office of mental health, and then you have the mayor of New York City and a press conference. Every step in this process involves one level interpreting something said by another, and those interpretations, and reinterpretations, can get murky. And then you have a press conference where in connection to mental health arrests, the mayor provides some examples. One example is, “The shadow boxer on the street corner in Midtown, mumbling to himself as he jabs at an invisible adversary.” And, “The man standing all day on the street across from the building he was evicted from 25 years ago, waiting to be let in.”

And I don't understand why either of those situations would be connected to a mental health arrest, because there is nothing in either of those examples that suggests to me that there's a substantial threat of harm.

Beth Haroules: Yeah, exactly, and where's the risk? It makes somebody uncomfortable, maybe. You know, the shadow boxer, how many people have you seen doing, you know, like whatever that movie Rocky was, or they're running and they're shadow boxing? You know, is that Tai Chi? You know, is somebody doing Tai Chi in Chinatown at risk of being swept up because it looks like…what are the ingredients? Right? That lead to this determination, and I think you're exactly right with telephone. You have the constitution, you have a federal constitution that guarantees freedom from unlawful detention, deprivation of liberty. You have a New York state constitution that provides very similarly, then you have case law that determines all of that and sets out sort of, well, what are the ingredients. What's the constellation of presentation that a person needs to demonstrate that gets them into the lottery of rights deprivation, right? And then you have guidance from the New York State Office of Mental Health, which is supposed to provide assistance to the field when it comes to state law, constitutional law, federal case law, and other guidance and directives from New York State. And then you have a press conference, a press release. So, you know, the ultimate telephone breakage in the line comes with the fact that you're creating and following alleged policy directive by way of a press conference without any involvement of impacted folks. 

You know, there's a saying in the disability community, right? Nothing about us without us. There has been no involvement of people who are impacted, people with mental health issues, people who are unhoused, people with substance issues, you know, all the people who are going to be caught up in this trauma and potential use of force. That's ultimately the concern that most people with mental illness, when they have a policing engagement, do not end up in a good place, right? You're leaving out all of the fundamental stakeholders and you're sort of moving away from the humanity of the folks who are impacted to this command and control model, this policing model.

And I heard at the press conference, Traditional NYPD lack of concern and derogatory statements about EDPs, which is what they call people with mental health issues, an emotionally disturbed person. But when they call them an EDP they've dehumanized these folks, you know, from the get-go. It's not well-informed, it doesn't comply with Olmstead, right? Which is least restrictive intervention that's appropriate to the circumstances. And it doesn't do anything to actually, if a person does have a mental illness and a person is unable to take care of self, it doesn't engender the level of trust that you need to set that person on the road to recovery.

Jesse: Can you briefly explain what Olmsted is? 

Beth Haroules: So, Olmsted is a Supreme Court case from the late nineties where the Supreme Court said for the very first time that a person has a fundamental right to live free of institutional settings, right? You have the right to live in the least restrictive setting that's most appropriate to your needs. It contemplates a very person-centered kind of approach, right? So a person with some supports and services can live in the community, safely for themselves, safely for others, all the way up to a person who might require some sort of intensive inpatient kind of stabilization for a short period. Because the default is away from long-term institutionalization.

It's before Kendra Law, obviously, soI think there are questions about how that ties into it. But Olmsted, when you look at a policing response to a person in mental health crisis, actual or perceived, danger to self for others, actual or perceived, you are still obligated to engage in the least restrictive response for that person. So that might in fact be a peer who comes to talk to the person, not police taking a person, sticking them in a patrol car or ambulance and off to a psych setting where somebody clinically can make a decision. You know, meeting with people, who's their support? What's the circle of support? Do they have religious providers? Are they part of any communities? And the like.

Jesse: When viewed individually these proposals can be concerning, and dangerous. But if we take a step back and view this not as a series of isolated statements and proposals, but as the scaffolding for a system, it can become horrific. The Office of Mental Health releases new guidance suggesting that substantial threat of harm encompasses:

(i) the person's refusal or inability to meet his or her essential need for food, shelter, clothing or health care, or (ii) the person's history of dangerous conduct associated with noncompliance with mental health treatment programs.

The mayor then publicly advises the NYPD to have complete confidence that they should be initiating more mental health arrests based on these revised standards. And when a person is apprehended by law enforcement, and involuntarily detained for evaluation, one of the mayor's policy proposals requires clinicians to not simply evaluate that person in that moment, but to also consider what police and first responders say about this person. And one of the justifications given for this proposal is, 

“A patient’s symptoms may be tenuously controlled by the medication provided in the hospital such that they are no longer exhibiting the alarming behavior that led to their removal and do not appear at risk of causing or suffering harm imminently. But this does not mean the person is ready for discharge.”

These proposals are essentially the weaponization of stigma and bias that will condemn people to be perceived not as who they are now, but as whoever, or whatever, someone else may have believed them to be at any other point in their life. And once a person is forced into a psychiatric facility, there is a proposal requiring that all people who are detained inpatient be automatically evaluated for an involuntary outpatient commitment through Kendra's Law. Which connects to another proposal suggesting that city health officials should be given access to people's personal medical information so that those officials can more effectively put that person on an involuntary outpatient commitment. So if we look beyond these individual statements, if we look at the scaffolding of this proposed system. There are broadened standards which will lead to more mental health arrests and more involuntary hospitalizations, which may result in currently protected medical records being shared with city officials. And a person's history of being involuntarily hospitalized, even once, makes them forever eligible to be pulled back into that broadened net of mental health arrests, starting the process all over again. 

Beth Haroules: Yes, what we see coming for years from the Supreme Court is past behavior becomes the prediction of future dangerousness. So anything in your record that anyone can find that you might self admit, right? Because part of treatment, right? Okay, I have been involuntarily committed, I have had X number of trauma inducing events that need to be taken into consideration when I'm trying to work through my life. All of that self-reporting, you don't have a Fifth Amendment right to non non-incrimination, part of your medical record.

And right now in New York City, when a 911 call comes in, NYPD has sort of coded addresses. They know if there's an EDP that they've responded to previously. When you have congregate care facilities, low barrier housing, supportive housing, that's coded already as a potential EDP. So they already come in locked and loaded to expect that there's gonna be some sort of interaction.So, you just sort of sit there and you think, your past history, it follows you everywhere because we now have electronic health records and you know, there's this sort of law enforcement ability to breach and then make determination based on people's medical information and past. It is very scaring because you know, you want people to be able to address their past in order to understand where their psyche comes from and how to move forward. 

At the end of the day too, don't forget, the other piece of this is that the person who's gonna be picked up under this initiative, if they cannot be connected to services, even if they get a Kendra’s order, they cannot be discharged. Because what the directive has said is that there has to be a safe discharge plan, and if you cannot connect this person to services, because we know they don't exist, they cannot be released. And then the question is, where does the person go? We litigated that down in Kings County, gross overcrowding, people dying in the emergency room, awful things happening in the inpatient settings. People being held beyond the time that they were legally permitted to be held and not given anything. And all of the dedication of resources go to maintaining that structure of control and confinement, without even getting into a community based service delivery system. You may need to have some acute inpatient psychiatric beds, right? Somebody at some point might require some sort of involuntary treatment, maybe, I don't know, but maybe, but you know, let's assume that that's the case. But that is such a vanishingly small number, right? So the resources that are dedicated to maintaining that apparatus are just so disproportionate to the needs of everyone who are out in the community. So you have, you know, again, a concentration of resources to confine and control a very small proportion of people that at the end of the day, a law enforcement person has made that original determination, that this is the trajectory of their life. And they're bringing somebody into a system that traps them in that, but also takes away resources from a system that is already totally underfunded. And it also perpetuates this sort of cycle of, you know, involuntary medication. You fall off the meds, we bring you back, we confine you, we involuntarily treat you, we send you out, and now you're back. Because involuntary medication just doesn't work, you know, it really does not work. There are side effects, there are really bad outcomes. There are so many other ways to address a person's situation other than the magic bullet, right? That's what everyone wants because it makes it easy. We're losing a lot here because the protocols that are in place, even if you comply with due process protections, really are putting you into a system that doesn't really work and doesn't address people's needs, or society's needs, right?

Jesse: As we brought the interview to a close, I asked Beth if there was anything else about these proposals, or about these systems, that is important to know?

Beth Haroules: You know, it is just so disturbing, you know, for everyone. I mean, I see families, I see kids, I see the people, you know? We were doing a lot of outreach to folks during the homeless sweeps and the terror…it’s just dehumanization. The fact that they are human beings, they're our neighbors, and there's an entire apparatus in this city and in this country that really wants people like this to disappear. And it's just, very disturbing, you know, that people don't even pretend anymore that there's a social contract, right? That we have an obligation to everyone. And to hear, you know, at the press conference, sort of the trappings of concern and social contract. You can't just leave a person like this, give them options that respect their individuality, their self-direction, their autonomy, their dignity. Don't pretend to know best for them and cloak it in this verbiage.

Jesse: On November 29th, 2022, NYC Mayor Eric Adams made an announcement and I have not felt safe in this city since. That statement, those policies, have reopened old wounds. Wounds that I have spent decades trying to avoid and I thought if I stayed outside of the system, if I avoided being noticed by it, then I might be safe. But as the rights of people being targeted for commitments continue to be eroded, and as the net that drags people into those systems is cast wider, I realize that I was never really safe. Because no matter what else I do, no matter who I might become, the only thing that this system really sees is someone who is committable.

I don't know what to do about these proposals. 

I don't know how to adjust to this.

But for all of those who are about to be caught in this net, to all of those who have been committed before, and to everyone who is about to be committed again. 

You are not alone. 

You deserve to be seen. 

You deserve to be heard.

And no matter what this system says about us we are more than just committable.

Jesse: Committable is produced by Jim McQuaid, Michelle Stockman and me, Jesse Mangan. All music is from the Song Reasonable by Christopher G. Brown.

NYC: An Addiction to Force and Coercion

Jesse: This is Committable, a podcast about involuntary commitments. I’m Jesse Mangan, and in this season we are going state by state to look at mental health laws throughout the US and one of the big reasons that I wanted to work on this series is because it helped me feel safer. Understanding the complexity of these laws, what practical options there are for someone who is forced into one of these systems, understanding these things helped to change the narrative that I feel trapped in because I let myself believe that maybe, just maybe, if I learned enough I might be able to navigate my way out of ever being committed again. And on the day we launched our first episode covering New York State, the place where I now live, I started seeing a lot of activity on social media because New York City Mayor Eric Adams had made an announcement. Mayor Adams announced that he wanted more people involuntarily hospitalized in what his administration refers to as “Mental Health Involuntary Removals”. And I have not felt safe in this city since.

This announcement, and the New York State Office of Mental Health Guidance that it relies on, interpret the concept of substantial threat of harm, the type of standard usually required for an involuntary hospitalization, this new guidance broadens that concept so that;

"Substantial threat of harm may encompass (i) the person's refusal or inability to meet his or her essential need for food, shelter, clothing or health care, or (ii) the person's history of dangerous conduct associated with noncompliance with mental health treatment programs.”

This broadened interpretation of the criteria seems so obviously dangerous, it seems so abundantly clear that these policies are going to cause harm, that I had to wonder who are they consulting for this? Where is the voice of people with lived experience in these proposals? And then I saw an article by Max Guttman about the Consumer Advisory Board, a group of people with lived experience who review mental health related proposals for New York City and I immediately reached out to Max for an interview. 

Max Guttman: Um, hi, my name is Max Guttman. I'm a licensed clinical social worker, so I'm a therapist in the New York City metropolitan area. I have a private practice, but I work for a lot of agencies up and around New York State, nonprofits, and I've done Assertive Community Treatment, I've worked with adolescents in student home visits. I've been on mobile treatment teams, I've worked in clinics, article 31 clinics, so freestanding mobile clinics in the community. So I know a lot about social work and mental health, I also have lived experience as a person who has been hospitalized at the state level, you know, I suffer from schizophrenia, but it's well managed to the best it can be. So, you know, I have flare up from time to time, but I've been out of the hospital for about 15 years and you know, every day is a struggle, but so is life, so here we are. 

Jesse: And what is the Consumer Advisory board? 

Max Guttman: So I chair the Consumer Advisory Board for the New York City Department of Mental Health and Hygiene. So, you know, it's a Consumer Advisory Board, basically a group of people with lived experience who look at new programs and policies coming down from the New York Department of Mental Health. And every month there's a new  presentation to the CAB, whether it be like, what the website looks like, you know, maybe it's a new mobile treatment team, or it's a presentation on step down services for, like intensive treatment of some kind. We listen and we give our feedback. So that's really what the CAB is, we don't really create, we advise.

Jesse: So, the Department of Mental Health has built into their process this point where they bring proposed changes to the consumer advisory board, what does that look like in sort of a standard process? What does that look like? 

Max Guttman: So once a month, it's the second Tuesday of every month, it's about maybe 12, 15 of us. We sit around a table and people come in, they'll do a presentation, you know, usually it's someone from inside the bureau, like a manager of some kind, high level manager or like, you know, someone running a program. Throughout the presentation, we'll ask questions, what does this mean? What does that mean? Can you explain that? And then we'll all like, sort of just go around and say what we feel. 

Jesse: Generally speaking, do you feel that the people from the city in these meetings, are they receptive to the feedback from the CAB?

Max Guttman: I would say they're receptive, I would say they're listening, you know, and the very last meeting I went to, we were all talking about this new plan for people with serious mental illness from the commission, okay. You know, we all went around, went around, went around, and they listened, and you know, on my ride home, I was like, hmmm. I feel like a lot of the stuff that we're saying, either people should know already or they know and they don't care. Some of the stuff that we say seems like it would be fairly intuitive, you know, like people need transportation. More transportation, you know, that would dislodge a lot of emergencies. If you can get to your medication, you might not need to go to a hospital, but for some reason that's still like a big roadblock. Like for my own monthly injection, okay, my monthly injection, I have to go to an ER every month. I've been going to an ER every month for 15 years. Not an office, not a room, an ER. That means I wait and I go through the ER process once a month, every month, because my own hospital network is not equipped, you know, either through the billing or through the way programmatically the way it works, they don't have like a room you can go to and just meet with someone to get a shot. I really have to, it's a three hour process every month. You think after 15 years and me talking about that something would happen, but no, nothing happens. So sometimes it can be frustrating, you know, stuff that you think would change, doesn't change and then they're all about like, what does the website look like? You know? 

So there’s a million parts to this system and I think that people don't listen unless it's like very, very visible to the public. 

Jesse: The process of someone having to go to an ER once a month, every month, for 15 years just to receive medication. Seems like a fantastic example of the type of practical insight that policy makers should be seeking from people with lived experience. So I asked Max, was the Consumer Advisory Board consulted before Mayor Adams made his announcement? 

Max Guttman: No. Not at all, not at all. I was sitting at home on my computer when I heard and saw this happening, you know, it came up on all the different logs and news things. I'm like, huh, what's this about? You know? We didn't know anything, not a thing. And then about a week later the Commissioner, the Commissioner of Mental Health and Hygiene, who runs the New York City Bureau sent out an email and there was a meeting called. It was a plan for people with serious mental illness and I couldn't make it in person, and I got locked into a virtual waiting room and never made it into the meeting. But that meeting was later reviewed with us in the following CAB meeting. So they reviewed, presented to us what the commissioner talked about after the rollout. So it's all very backwards, you know? The Mayor throws out a Let's do this, then the commissioner says, what's our plan? And then we're here listening, you know, and like, are we gonna get heard at this point? Is even the commissioner's plan gonna get like, so like there's a strategic push every five years with the New York State Office of Mental health. They say this is our vision, our strategic vision, they put money in certain areas, okay? The report, it's generated, you can get it online, and that's their general vision and their plan. I read it all the time, it makes sense the direction that we're going in, but in terms of a specific plan? I don't know what the Commissioner has in mind and what we heard and what we listened to was like, it sounded like a watered down, sort of like distilled out version of the five year plan. You know, there were no real specifics, no really like radical changes or shifts in the way things are done. And as a social worker, I'm always looking for new changes and new ways of treatment, new modalities, new articles coming out, new theories, new this, new that. I heard nothing new, I heard nothing new. It's like I said, it seems like a one hour truncated version of the five year plan. Which is great, yeah, sure, it's where we want to go, but how we're gonna get there, what we're gonna do and the specifics? That was in the last screen, Any ideas guys? Input? You know? 

And it was sad, it's sad because, you know, people are getting hurt every day, people are really not doing very well and people struggling with mental health disorders are doing even worse, and the struggle is a lot harder. And I feel like we're not investing energy into the right places.  and listening to the people who know a little bit about how things are done, you know? Our voices are heard, but I think it takes a long time before they're put into practice. A long time. A long time. 

Jesse: As far as you know, would there be any advantage to not consulting the CAB about specific policy changes? Because this happened, this announcement was made at the end of November, you would've already had a second Tuesday where they could have brought that to you.

Max Guttman: An advantage to not consulting with us?

Jesse: Yeah.

Max Guttman: Because things could get rolled out faster with less noise?

Jesse: I honestly don't know, I honestly don't know why…

Max Guttman: I don't think the Mayor cared, I don't think he cared, I don't really think he cared. I don't think it was about squashing the voices of advocates, or like anything of that nature. I just, I don't think we were even in mind, you know? And I think that's the problem, no one cares, no one listens, no one keeps us in mind. I don't think they cared enough about any of us to really have us on their radar at all, you know? But the mayor? I don't think it was about like, not going through the right channels, he didn't even acknowledge us as a channel, you know?

Jesse: With years of expertise, not just from lived experience but also as a social worker, I asked Max for his thoughts about the New York Office of Mental Health Guidance which interprets a substantial threat of harm as the person's refusal or inability to meet his or her essential need for food, shelter, clothing, or healthcare.

Max Guttman: It sounds like your basic homeless person, not necessarily a mental health crisis. I can tell you I've been without food, without clean clothes, and very much psychotic and not in the hospital, you know what I mean? But people knew me, I wasn't creating havoc, or I wasn't in a turnstile in New York City where like I was blocking commerce. So like your average homeless person probably doesn't have clean clothes, probably meets all those indicators and they're probably sitting in a turnstile, or in a subway, or looking unseemly, but looking unseemly and being hungry is not really, that really doesn't make sense to hospitalize them.

It's a very savvy way of getting them out of the subway, you know? There has to be a better place than a hospital for the homeless. 

Jesse: There is a legal concept called Parens Patriae, which roughly translates to “Parent of the Nation”, and refers to the power of the state to intervene on behalf of the people who are unable to protect themselves.

But what if the thing you need protecting from is that intervention? Why would public officials propose policies of forced intervention that have been repeatedly demonstrated to bring a serious risk of harm and trauma to the people that they are supposed to be protecting?

Leah Harris: We do have an addiction to force and coercion because we're not willing to do the things that would render that obsolete.

Jesse: This is Leah Harris. 

Leah Harris: Hi, my name is Leah Harris. I am a second generation psychiatric survivor, I'm a freelance journalist and kind of a mental health policy nerd.

Jesse: In an article titled, “And Now They Are Coming for the Unhoused: The Long Push to Expand involuntary Treatment in America”, Leah wrote about Mayor Adams announcement and the decades of focused efforts in the US to erode the due process rights of people being targeted for involuntary hospitalizations. And one of the key elements of this history is a federal court decision called Lessard v. Schmidt. So I asked Leah, what is the Lessard decision? And how is it connected to what's happening now?

Leah Harris: I really dived deep into the archives, kind of catching up on this case and learning about Alberta Lessard. And so, um, there was a November day in 1971 when she was picked up by the police. Allegedly for suicide, accounts of what happened that day are a bit contested, there's several different accounts. But the point is that the cops picked her up, she said she wasn't suicidal, they didn't believe her. Surprise. They brought her into what in Milwaukee, this is in Milwaukee, Wisconsin, and at that time it was this horrendous 1880s era institution that was quite a snake pit. And so she was brought to this place and without her knowledge an ex parte hearing was conducted and plans were put in motion to have her committed for life. So Lessard was facing lifetime commitment, and this was in 1971, so people were still being committed for life back then. And somehow in a forcibly medicated haze, she managed to reach out to the Milwaukee Legal Aid services at the time. And Bob Blondis and Tom Dixon took on her case. And so that became the case that is known as Lessard versus Schmidt, that went to a three judge federal panel that actually found that Wisconsin's civil commitment laws were unconstitutional.

And really what this was all about was looking at the procedural safeguards that are afforded to people who are facing, for example, lifetime commitment. So this established what we all know now as the sort of imminent dangerousness standard, that the deprivation of liberty could only be justified if it could be proven by the state, and the burden was on the state to prove beyond a reasonable doubt that this person could harm themselves or others imminently.

And it also established that people facing civil commitment to the mental health system, should be afforded the same due process as those who face the criminal legal system. So it sort of established what is called an adversarial standard, right? And it was a huge, huge revolution in mental health law. Because it was found to be unconstitutional immediately a number of states began to revise their mental health laws in accordance with Lessard.

Jesse: The Lessard decision established some basic standards for the involuntary commitment process. It became federally acknowledged that this process is an immense deprivation of a person's liberties and as such there should be a very high threshold that has to be met before someone can be involuntarily hospitalized. There has to be clear evidence of some form of imminent danger, or as it is phrased in New York's mental hygiene a “substantial threat of harm”. And this is what Mayor Adams’ proposal and the guidance from the Office of Mental Health are reinterpreting. It seems that instead of a direct challenge to the standards established by cases like the Lessard decision the mayor's proposals instead rely on reimagining that concept of a substantial threat of harm as including a person who doesn't appear to be meeting their basic need for food, clothing, shelter, or healthcare.

But why now? Why after 50 years are city officials now pushing back against the due process rights of people being forced into these systems? 

Leah Harris: It's really, really important to understand that as soon as the Lessard decision became law there was almost immediate pushback against it, right? Kind of growing out of Wisconsin and then filtering through the nation.

So there was a psychiatrist named Darold Treffert who was one of the first who kind of started to lead this charge against these more stringent civil rights standards for people facing civil commitment. And he is the one who coined the term, I'm sure you've heard it, “dying with their rights on”. And he immediately spoke of, you know, Oh the pendulum has swung too far, you know, in the direction of rights. And yes, it's important to preserve people's civil rights but we've just gone a little bit too far with it. And so kind of invoked this rhetorical strategy of bringing up these horrific situations of people who had died by suicide, or other causes, and used those, you know, examples as a pretext for swinging the pendulum back the other way.

And as you well know, that rhetorical strategy has been used over and over and over again highlighting these horrific, but overall very rare, instances of violence or suicide or, you know, other causes of death to say, Because we couldn't commit that person then this is what happened, right? So it really kind of put wind under the sails of the family movement and the movement of people who were really fighting to roll us back, roll back the clock. 

So that sort of led to starting, again in Wisconsin, to the sort of alliance between professionals like Treffert and then the family advocates who had been, as the history goes, they were meeting at kitchen tables, you know, starting in the 1970s to basically talk about how unjust these new civil rights are, and that they can't get their adult children committed.

So it sort of led to this alliance between the professionals and the family members that continues to this day. And there's just been this steady effort, really ever since Lessard was passed, I mean almost immediately, to chip away and chip away and chip away and roll back that clock. And we're still seeing the effects of that today.

Jesse: Mayor Adams’ proposal very specifically, and deliberately, targets unhoused people for community removals. But even before that, in NYC, you had shared an article with me about Mayor Kotch who tried a similar program. And this is a quote from the article, “This precedent setting initiative by the mayor will be shown to signal the change in which this society views the gravely disabled mentally ill. The aim is no one returns to the streets”. 

So this is 1987, clearly that didn't work. So what did we learn from these attempts, the policies that were proposed in 1987, what did we learn from that that should be applied to these policies that are being proposed today? 

Leah Harris: Yeah, sadly we do really find ourselves in a Groundhog Day kind of situation where it's like these same proposals just resurface. If they fail and the public forgets then, you know, the same proposals are resurfacing. And there's also, I think it's important to note that out of that failed Kotch experiment to nab people off the street, it obviously doesn't work on any level, an actual innovation that came out of that is the Housing First model. As a direct result is understanding that, you know, we can't just lock people up and throw them back in the streets and think that we have solved a problem, right? And that what we really need is permanent supportive housing where people can get the supports and services they need, the dignity of housing, and connection to community. And there has been a concerted effort among the right to remake that narrative and to say Housing First has failed, like, that was a program that arose, in the late eighties, early nineties, and we've been there, done that, tried that, it's failed. And that is an abject lie, that's just pure misinformation, it really hasn't been tried, right? To the extent that it needs to be. So it's absolutely premature to declare Housing First as having failed, right? 

So to really understand there are these ongoing efforts by right wing think tanks of all kinds, from Cicero to Treatment Advocacy Center, that are really trying to undermine this narrative that, you know, people need housing, not asylums, right? Housing not handcuffs. To really, I think that this is just an ongoing attempt to lay the foundation for a true return to the asylum. 

Jesse: As we brought the interview to a close, I asked Leah if there's anything else about the Lessard decision or about the ongoing efforts to chip away at the rights of people being involuntarily hospitalized, that is important to know?

Leah Harris: It's so important for us, whenever we're considering any of these proposals, or trying to understand what they're doing or where they come from, to really examine our history. Because there's really nothing new under the sun that's happening here. It is just a continuation of a 50 year effort to roll us back to the days of the asylum, and that is what I am truly frightened about, is that these trends, this unwillingness to address housing is going to lead to an eventual rebuilding of the asylum. And that's not a very happy note to end on, but it's just a real argument for looking at history and continuing to be loud about that and continuing to be loud about the horrific groundhog day that our country keeps facing over and over again because of this inability to look at root cause solutions.

Jesse: What does it mean to be committable? This question has been debated and ruled on in many, many different ways over the past 50 years. There have been some tremendous, and inspiring, steps towards acknowledging that people being forced into an involuntary commitment are still people. And they need to be treated with the same dignity, the same humanity, the same legal protections as everyone else.

But there are also ongoing efforts to erode these rights and to use semantic reimaginings of legal precedent to declare that there are some groups of people who aren't fit to be free. And when the most traumatic moments of your life are constantly reopened by ongoing cycles of public debate about whether or not you deserve to have rights, how do you get through something like that? Who do you turn to? Is there anyone actually trying to protect these rights? 

Next time on Committable. 

Marinda Van Dalen: We brought litigation last year against the city of New York and the police department because we've seen all too frequently the police in those circumstances use excessive force, and tragically it results in fatalities. In police killings of people experiencing mental health crisis.

Beth Haroules: We litigated that in Kings County, gross overcrowding, people dying in the emergency room, awful things happening in the inpatient settings, people being held beyond the time that they were legally permitted to be held. It's just dehumanization. The fact that they are human beings, they're our neighbors, and there's an entire apparatus in this city and in this country that really wants people like this to disappear.

Jesse: Committable is produced by Jim McQuaid, Michelle Stockman and me, Jesse Mangan. All music is from the Song Reasonable by Christopher G. Brown.

S3 Episode 7: Massachusetts

Jesse:  Alright, let's do the intro thing. 

Michelle: This is Committable. This is…

Jesse:  Perfect! 

Michelle: Oh, okay. I nailed it the first time?

Jesse:  Nailed it, we are ready for the interview. 

Michelle: Alright, well, I bought a ticket for this train. 

Jesse: Wait, the Committable train? Is that what we're calling it now? 

Michelle: Uh, I'm on it and I'm having the time of my life.

(intro music from Reasonable by Christopher G. Brown)

Jesse: This is Committable, a podcast about involuntary commitments. I’m Jesse Mangan and I'm here with Committable producer Michelle Stockman. 

Michelle: Hello.

Jesse: This season we're going state by state to better understand mental health laws throughout the US and for this episode we're looking at mental health laws in Massachusetts. We have actually looked at Massachusetts before, in season one we made several episodes discussing section 12s. So, Michelle, do you wanna give a quick recap on what we learned about section 12s? 

Michelle: I do, but I wanna preface it by stating that I still get confused and lose track of what is what, and we've been studying this, so it really does feel overwhelming if after this amount of research it's still something that's difficult to wrap my head around. But that being said, my recollection for Massachusetts is we're going with the section 12s in this case, and I believe that they're broken into different 12s. I believe there's a 12a and a 12b, and I think they bring you to the hospital for treatment where you're gonna be evaluated. And when you're evaluated, depending on the results of said evaluation, you may or may not be committed from there. But I think that if you do get committed, whether it be voluntary or involuntary, that's a new section.

Jesse: Yeah, basically a 12a is an emergency detention that gets you involuntarily transported to a facility, most likely a hospital, probably in ER. And you're being transported there for evaluation. And a 12b is essentially the evaluation part that can result in you then being put on a 72 hour hold in a psychiatric facility. And I think what your response illustrates really well is that, yeah, we have been discussing section 12s for over two years and they can still be really confusing. So imagine what it's like to be a person who is encountering this system for the first time?

Imagine trying to break down the complexity of these laws while simultaneously being detained, maybe handcuffed, maybe strapped to a gurney, held in an ER, before being sent to a locked ward for a 72 hour hold. Imagine trying to figure out all of that and then discovering that there is another section to these laws, a section 8. A section 8 is a civil commitment, and that's what we're discussing today, section 8. More specifically, section 8b, and to learn more about section 8b, what it is and what it means, I spoke to Nancy Murphy. 

Nancy Murphy: I'm Nancy Murphy. I'm the managing attorney of the intake Unit at Disability Law Center. I primarily do work for individuals with mental health needs or brain injuries, but we're part of the Protection and Advocacy system across the country. We're an independent nonprofit and we have federal and state funding to protect and advocate for the rights of people with disabilities throughout the Commonwealth. And that's wherever they are. if they're in a facility, if they're on the job, if they're in their home. And that's individual advocacy, could be litigation, could be investigations and monitoring, legislative works, and kind of ensure that people are listening, right? I mean, most of the clients that I represent, or facilities that I go to, people don't have the financial resources to have anybody representing them or stepping in. And we're there to really bear witness to what's going on and be able to report out on it in a way that other people aren't. So, while other legal service organizations or private attorneys or advocates may be able to help individuals or advocate in particular issues, we can go in on a systemic level and we have the authority to actually go onsite into facilities and spend time on inpatient units, talking with people and reviewing medical records and really getting to know a place more like what it would be if you were living there. Go off hours, go on the weekends, go early, early in the morning before a change of shift when an administrator is not there and it's not neat like it might be for a scheduled attorney visit. 

Jesse: So there are a lot of ways in Massachusetts where a Section 12 can bring someone to a facility where they're being evaluated. But there's something else that can happen in that facility, which is a Section 8. What is a Section eight? 

Nancy Murphy: A section 8 is what happens when a facility decides someone is going to stay. And they may have, usually they do, but they may have said, look, you can either sign yourself in or we're going for commitment. I mean, that's what happens, and there's all sorts of coercion involved in that. And yet that's really what the law says. The law says it should be least restrictive environment. And if somebody is capable or competent of signing themselves in, then it should be voluntary, of course it's never totally voluntary because you can't just walk out if you want to. So if someone decides not to do that and the facility says, well, we think that you need to stay, then they can go for involuntary civil commitment.

Now it's really interesting because in Massachusetts we're really good on the law on some of these things. The practice is a little different and how it plays out, but we're really good on the law. So that means that you should have notice, you should have due process, you should have counsel appointed to you, and you should be able to see a judge. You can get an independent evaluation and there'll be a hearing. So that's how you get civilly committed, and the standard is supposed to be, it's a civil process but the standard is supposed to be a criminal standard. That this is beyond a reasonable doubt, that there's a mental illness, there's a likelihood of harm, and that there's no less restrictive alternative, and it's supposed to go in those steps.

Now, going back to where I started when I said Massachusetts we’re really good on the law, I wanna point out that there are other states where if two psychiatrists agree, for example, you are committed. There is no hearing, there is no due process, there's no judge, there's no lawyer, there's nothing, you're just in. So I might nitpick today about Massachusetts, but I do wanna point out that in my legal opinion, we're ahead of the curve with some of these things. Although I think that there's much left to be done in practice, and also some development of the law. The one thing I'll say is there's a bizarre piece in Massachusetts about civil commitment, and that's if you are a man, and if there's a decision that you need strict security, you may go to Bridgewater State Hospital. There is no equivalent for a woman, it's only for men, and there is no legal statute or definition of what strict security is, it's kind of, they'll know it when they see it or something like that. This is an absolutely terrifying notion to me. 

Many, many times none of this is planned, and so someone will wind up sectioned with absolutely no warning. Could be a pet at home, could be a child at home, life doesn't stop because this is happening, it's not planned. So they're just plucked out of their life and put in a hospital with no idea of how long they're gonna be there, when they're gonna get out, what their rights are. So if you add to that, that this could turn into a civil commitment, without an idea of if that's gonna be a full six months or if it's gonna go longer. And then you add to that the idea that you may, if you're a man, meet this strict security standard. Now you're in a whole other ball game, because now you're not in a DMH licensed psychiatric unit. Now you're at Bridgewater State Hospital, which for all intents and purposes is not a hospital, it is a correctional facility, literally, it is under the direction and operation of the Department of Corrections. It looks like a correctional facility, it acts like a correctional facility, and while there have been some developments in the mental health services and some changes in the security there, it is a correctional facility and you do not need to have criminal involvement to meet that strict security standard and go to Bridgewater, or stay at Bridgewater. 

Michelle: I love that she really does paint the picture of putting us in the headspace of a day in the life of, you might have pets at home, you might have a kid at home, you are plucked from this life. Because to me that was some of the biggest takeaways from both your story in season one and Cassidy's story in season two, and listening to her talk about this, you know, she's saying things that you think should bring you comfort, like least restrictive option. You know, you have to have exhausted all of these other things first, and those things just don't happen, they aren't checking these things, they really aren't. Or if they are, it's very minimally. 

Jesse: Yeah. I think this goes back to what she said about Massachusetts being good on the law because a neutral reading of the law, without any awareness of what actually happens to people going through these systems, a theoretical reading of the law could give the impression that this all makes sense. That there are clear checks and balances, and this process is only initiated when absolutely necessary. But if you take a moment and think about something like Section 8B, a legal mechanism that can take someone involved in a civil commitment and put them in a correctional facility, not necessarily because of criminal activity, but because of a belief that there is a security risk, but what qualifies as a security risk doesn't seem to be defined anywhere. So how do you have a law like that that hinges on this concept without defining it? How do you justify taking someone from a hospital after they have been told that they need to be detained for necessary treatment, and then detaining that person in a correctional facility without even an allegation that they have committed a crime?

Nancy Murphy: So overwhelmingly, when someone gets to Bridgewater for the first time there was some type of criminal involvement, but that's not all the time. And so an example might be that someone is in a DMH facility, DMH licensed unit, and let's say there is some type of harm to others, some type of behavior where there is actual harm, let's say to a staff person or something like that. That facility might say, we can't manage this person, this is not an appropriate placement for this person. We think they meet strict security and they can transfer that person to Bridgewater State Hospital. In that instance, there does not need to be judge oversight, that's in the law. It could be that they would get to Bridgewater and because of that action somebody might then file criminal charges against them, and so kind of the action to transfer to Bridgewater would happen first, and then the criminal charges would come next. What you see more often is people that have some sort of criminal involvement, maybe arrested, wind up in a county jail. County jail recognizes some type of behavior or symptomatic mental health issue and says, we don't have the resources to deal with this person, we don't know what to do with them. We don't know if they're gonna hurt themselves, or maybe they've had an attempt at self-harm or some type of harm to others. And they say, we're gonna send 'em to Bridgewater, you figure it out, and they go to Bridgewater and then Bridgewater will do an evaluation. There's a lot of people that spend less than 60 days at Bridgewater to have an evaluation, either for competency to stand trial, feedback on sentencing, things like that, or to just figure out if they need to be committed to Bridgewater.

Now, let's say someone meets the standard for commitment and they're committed to Bridgewater and they're there six months, a year, a year and a half, two and a half years, and finally Bridgewater says, Hey, we think you're back on your feet, we think you're stable, you're at your baseline, you're gonna be discharged. Where do they go? They go back to county jail, because they're in the system, they're still serving a sentence or awaiting a trial. So there's this double-edged sword within the system and some people refer to it as sort of getting pushed off a cliff because you're in the criminal justice system, you have this heightened hospitalization with really tailored mental health treatment, and then, you know, as a bonus for sort of graduating, you get sent to a county jail with little to no resources. Or iif you're in the state correctional, you would go to Bridgewater units at Old Colony Correctional and then get sent back to the state correctional. It's a little bit of whiplash for people that are in the system because the county jails are not set up to be an appropriate step down, and they're not set up to be able to follow through on a discharge plan. It could be something as simple as sometimes somebody could be on a very serious medication that requires regular blood draws and really close monitoring, and then they get sent to county jail and county jail says, Hey, that's not on our formulary, and just stopped. And if you're talking about a really intense medication for mental health needs that has psychological and physical effects too, to just stop a medication, so it's a complicated system and navigating how somebody gets there and what happens to them when they're gone is an ongoing mission and advocacy of Disability Law Center. We've been onsite, I've personally spent years and years monitoring onsite at Bridgewater State Hospital. For many, many years two full days a week I was just walking around and just part of the structure of Bridgewater. It's really interesting, after years on site one person that was living there said to me, you know, I think you're really the crazy one because you choose to keep coming back. And I said, well, I have the luxury of leaving. You know, and the idea to me of just leaving people behind that, it's not that they don't have a voice, it's that nobody's listening, that's the bigger problem. And so as the Protection and Advocacy it's part of our mission to not just give a voice to people that don't have it, but really rather make sure somebody's listening. It's not always the voice that's the problem, it's the ear, there’s nobody there to hear it. 

Jesse: If I'm understanding correctly, once you reach Bridgewater State Hospital, because it's a different system that might mean different regulations or policies around medication. But if a person's being prescribed medication that their physician believes is necessary, and they're voluntarily taking it and they believe it's helpful, they could be transferred to a facility that says you no longer have access to the medication which you and your physician believe are necessary?

Nancy Murphy: That's right, and there's a lot of advocacy around this but it's a huge problem with people that need mental health services being in any sort of correctional system, including the county jails. That there will be someone who is stable at Bridgewater, they've been doing great, participating in treatment, they're really excited about their recovery, feeling really good. Of course, then they get pushed off the cliff, right? And just, oh, well you're all better, you don't need services anymore. So we can send you back to county jail. And their discharge plan will say like, Clozpine, you know, or it's like a heavy, really intense medication. And they go to county jail and the county jail says, Hmm. No, we don't do that. Let's put you on this one instead. And that transition is so jarring, you know, you have somebody that has been doing really well and stable and then they're taken off it, there's a whole process to see what might work. They've dropped off the cliff in terms of they're no longer in a “hospital", like Bridgewater, and they're just back in county jail. Maybe in general populations seeing a therapist once a week, once a month, it could be completely different. And so what's gonna happen? A lot of times things don't go well, and they might act out, they may decompensate, they might get really, really sick, either mentally or physically because of the medication withdrawal or the changes, and so they wind up back at Bridgewater. And then you say, what is happening in this system? And then each time that happens to someone, that cycle, their baseline and the work it takes to get back to where they were gets more and more challenging.

And so you see in this system this revolving door of people at Bridgewater, and each time they come back it's a little bit rougher than the time before, and it can take longer than the time before. And having been a monitor there for eight years I can look at the roster of admissions and discharges and I, I mean these are names that are all familiar to me just by being there. That process is something that Disability Law Center, both as the Protection and Advocacy and as this additional authority by the state legislature, we're looking at that issue of continuity of care post-discharge at Bridgewater. What happens when people leave? Where are they going? What services are they getting? And what shape are they in when they get back? If they get back. And it is common that once you've been at Bridgewater, if you have another commitment or you have any involvement with the criminal justice system there's a good chance you're gonna wind up back at Bridgewater too. 

Michelle: I want to highlight trans lives in this instance. because she very specifically said this is a law that applies to men and not women. However, even though I know some people passionately disagree, gender is not associated with biology, and there are many people who are going there that identify as women. And I really can't imagine in this scenario if you are being put into a detention center specifically set for men, and getting treatment as a man, I can't imagine that's gonna be great for your mental health. I do think it's a lot of trans lives that get caught up in this as there is an association between, you know, likelihood of being kicked out of your house, being on the street, being in situations in which you probably will be arrested or perceived as having some kind of episode that someone needs to step in and commit you essentially. And this civil commitment process seems just uniquely horrifyingly, specifically tailored to fuck over trans lives…to “flook” over trans lives.

Jesse: It's our podcast Michelle, you can swear. 

Michelle: Great, cuz I just did. 

Jesse: And I think this emphasizes some of the serious flaws in the overall process because policymakers create laws, the Department of Mental Health interprets those laws one way, the Department of Corrections might interpret those laws a different way. You have those two institutions, those two different sets of treatment and detention guidelines, and you have the person being passed from one to the other, probably just trying to find a baseline, just trying to survive. And then you have a vendor, Wellpath Incorporated, who the Department of Corrections brings in to run aspects of their facilities. So now it's not just the DMH interpreting things one way, then the DOC interpreting things another way, now you have Bridgewater State Hospital essentially being run by this vendor who may be interpreting things a different way. And so I don't really understand why these state institutions would hand over something as important as interpreting patients rights to an outside vendor. 

Nancy Murphy: Let me backup a second. In April, 2017, this was a monumental shift for Bridgewater State Hospital, before April, 2017 all of the security at Bridgewater State Hospital was by correction officers throughout the facility. So we call this the pre-transition. So there was a vendor that did mental health services but on every unit, everywhere, all the security was done by uniformed correction officers. Then there was a transition where on a date in early April, 2017, all of the correction officers walked out and a new mental health vendor came in and took over both the security and the mental health. This was a huge step forward for Bridgewater. It meant no more uniformed correction officers, it meant now both the mental health and the security piece were run by a mental health vendor. And even though to get into Bridgewater, there are still correction officers that sort of man that first trap. I mean, it's a trap because the trap, like the doors in a correctional facility, but once you're in there aren't uniformed correction officers.

That transition carried over, the mental health vendor took the DOC policies on security and services and kind of recodified them into their own. So they didn't just pick their own, they went based on what DOC had, but they don't comport to the Department of Mental Health, and that's the big issue. So, to me, it's not just that there's a vendor that's in charge, it's that there's no uniformity for mental health services in the state.

Jesse: I wanted to clarify the process with the vendor, which is that the person is going from a DMH facility to a Department of Corrections facility, which is run by a vendor. And so one of the issues there is not necessarily the intent of the vendor, but the vendor is answering to the Department of Corrections, so the vendor may or may not have awareness of what DMH policies are and may or may not have any obligation to follow all DMH policies. So it's really, by the time you reach the facility run by the vendor, it's sort of like a game of telephone and you don't know how they're interpreting a different system that you're now entering. 

Nancy Murphy: That is exactly accurate, and that's compounded by the fact that some of the leadership at Bridgewater State Hospital who have been there for well before the transition, are still in leadership roles and have never worked outside of Bridgewater. So they only know mental health treatment and forensic evaluations, or risk assessments, referential to Bridgewater and the correctional system. As opposed to someone in the Department of Mental Health world who may come from a community background or a psychiatric unit background, their point of reference is recovery/least restrictive. Bridgewater's point of reference is stabilization and back to county jail. Nobody, unless it's really unexpected of a judge saying, no, this person doesn't meet commitment and there are no criminal charges pending, which is incredibly rare, nobody just walks out of Bridgewater State Hospital. You either go to a DMH facility as a step down or you go to county jail. So there is no thought to discharge planning, the community, continuing on with your life and recovery, it's just moving people along the spectrum so that they can either face criminal charges or things like that. So I think that you're exactly right, the paradigm of it being under Department of Corrections doesn't have people trying to say, what would it be like at Department of Mental Health? It is like a game of telephone where each version, it changes just a little bit more, and by the time you get to Bridgewater, you're like, what is happening here? I don't understand what's happening here. 

Michelle: We're saying the word vendor a lot, but we are likely talking about Wellpath Inc. In the last decade they have been sued in federal court over 1300 times. The organization, a local Massachusetts organization called Deeper Than Water, sent out surveys to a lot of inmates in a bunch of correctional facilities. So, you know, this is DOC run places that I'm talking about right now, not specifically Bridgewater State, but it's the same company providing medical and mental health services to all of these. Most of the surveys that have come back are just egregious instances of human rights violations and negligence, and a lot of what I just heard her talk about a lot of, I had this problem and I had it completely managed with this medication and then I got here and they'll forget my medication, they will withhold it as punishment if they do not feel that I'm complying appropriately, or they will withhold it because it's cheaper, it's cheaper to just have me suddenly die than it is to give me medication. Because a lot of these people are here for life, and because they're also in for life a lot of them can actually speak to before Wellpath and after Wellpath. And many say that this is the worst treatment that they have ever received. 

And in a lot of responses to a question, you know, what are things that could be done differently now? So many answers were, I could be maybe treated like a human being, that could be a good first move to help things be better. So this is the vendor we are referring to. And another thing that I wanna highlight, that's the amount of inmates that repeatedly have to say, I promise I have evidence, I promise I have proof, I promise if you'll just listen to me, if you'll just believe me for a second, I can back it up. I just think it's so significant, you know? So many of these issues, like people experiencing distress, mental health distress who are committed, people who are incarcerated, I mean really anyone who's had their rights stripped and told by an expert or authority that this person needs to have their rights stripped for the good of themselves and the community. It doesn't matter if it happened to them illegally or through all of this shady coercion. Once that stigma is on them, it doesn't matter anymore, no one is listening and no one is caring and no one is believing them. And it's really deeply, I find deeply, deeply upsetting. Because I don't think that by virtue of incarceration or commitment you are a liar, or you don't have an understanding of what's going on, and you don't have an understanding of what's happening to you or that you're not capable of if given some level of compassion for a little while coming out of whatever distress you're in. It's just deeply, deeply upsetting. 

Jesse: Yeah, it seems like the ideal circumstances would be that if you are encountering someone in distress, you get that person somewhere that can give them the help that they need. But here are the laws saying that if a clinician believes that you are displaying symptoms of a mental illness, symptoms that put you in some sort of risk of imminent danger, then we need to detain you in a psychiatric facility. If while being detained in that psych facility someone believes that you pose a security risk, whatever that means, then we need to send you to Bridgewater State Hospital, which is essentially a corrections facility. If this whole process was initiated under the belief that this person was in some sort of imminent risk of danger then why would you start by detaining them in a facility that isn't equipped to manage a security risk? Whatever distress got you into that system, whatever that initial justification for detention was, now all of that seems to become secondary, or tertiary, to this other type of detention that is not about treatment. And this person is being passed between these institutions, each one exposing the person to different ways in which they could experience serious trauma. A legal process like that seems so obviously problematic that it seems like the law is openly acknowledging that they have conflicting priorities and that the law is deeply flawed. 

Nancy Murphy: I think that's what the system is saying. I think the law pretty clearly says this should be least restrictive, you should always be doing least restrictive. I think in practice people say, well, we don't know what else to do with this person, so this is the least restrictive. But that's not what the law says. The law doesn't say it's least restrictive because you've completely botched community services or response or you know, you've done such a terrible job deescalating people, and so now that that event has escalated to this point now you're least restrictive. That's not really what the law contemplates, but I think that's what happens. So I agree with everything that you said, but I would say that's what happens in practice. So many mistakes happen along the way that this is the best way that they can figure out how to navigate what to do with people. But that's because of the failures in treatment along the way. The failures in response and the failures in treatment along the way are what typically leads somebody to an involuntary commitment, whether it's at a DMH unit or Bridgewater. 

It's the worst paradigm that you can imagine, you have somebody that you want to be engaged in treatment, and you want to be participating in treatment, and in the very introduction to that treatment you are stripping away all of their rights and taking away any coping mechanisms from a support network, to their home, to their pet, their iPhone, whatever people use, it's really hard to imagine. And then it's a real question of what are you doing with them now that you have them? Because people don't live in these places forever. And so if you put somebody in a Bridgewater and lock them up for three years, five years, and then their criminal charges are resolved and they're done, and you step them down to a DMH unit and they spend a year, or two years, in a DMH unit, what resources do they have when they are discharged? How can they make it in society to either live independently or live with supports? And what unbelievable resentment and trauma have they xperienced because of that path that you put them on? 

Jesse: If there's awareness that there are patterns, that people who are brought into Bridgewater State hospital are not unlikely to go back to Bridgewater State Hospital if they're released. Like, accepting that that pattern exists, if you do get released in a situation where whatever's happened, you've had some interaction with police or correctional facilities, you've been brought into a psych facility, you've been brought into Bridgewater Site Hospital, all of that has a risk of trauma. All of that is very likely to increase the stress, and then eventually you're released, I guess, what then? 

Nancy Murphy: I don't know, I think that's the issue, I don't think there's a good answer, it's all cumulative. And I think if there's a chance that somebody can navigate all of this on their own, which given what brought them into the system is an uphill battle to begin with, right? If somebody could navigate this all on their own, what they're gonna be like at the other end is gonna be a shadow of what they started with because each step of the way is additional trauma. And I'll give you an example, you know, before the transition at Bridgewater there was a unit dedicated to restraint and seclusion. So if you were going to be restrained or you were gonna be secluded at Bridgewater you went to the intensive treatment unit called the ITU. And the only thing that that unit did was seclude people, or four point restrained them. What brought Disability Law Center to Bridgewater was an investigation of that unit and their use of restraint and seclusion. In 2014, we made findings, we issued a report to the governor, we had a settlement agreement with the state. At the time, there was also a lawsuit and we became the court monitor to that lawsuit. And this all started around the use of restraints and seclusion at Bridgewater and that ITU. On day one of the transition in April, 2017, that unit closed. So restraints and seclusion at Bridgewater dropped drastically simply because they took away that simple tool to just lug someone to the ITU and put them in the restraints or seclusion. The system changed at Bridgewater, some of the culture changed at Bridgewater. 

During Covid Bridgewater opened up the ITU again and called it the Containment Unit, so that when guys would come to Bridgewater upon admission, if they needed to be quarantined, they quarantined them in that same physical space that used to be the ITU. So now you have people that maybe five years earlier were secluded for weeks or months on end in this unit cycling back through. And even though the correction officers are gone, and even though it's not called the ITU anymore, they're being secluded in a containment unit because of a pandemic, possibly even in the same cell that they were in five years earlier. It feels and looks exactly the same. Now you can say, we're not secluding them, that's Covid, that's the pandemic. Now, trauma doesn't know  the logic behind that, it's the same exact experience and so triggering in all of those ways. Those are the things in the system that are missing, especially with Department of Correction overseeing it, that focus on trauma informed care and individuals, and the overall experience and the continuity of care. What happened to somebody before they were admitted? Where are they going when they're discharged? It's all missing at Bridgewater, and those are the types of things we're looking at and the stories that we're trying to tell. To like I said, not give a voice, but be an ear and then see if we can repackage it in a way that somebody's gonna listen.

Jesse: One thing that resonated with me at the end was if you make it through this system, any of these systems, you can become a shadow of your former self. That has felt like where I've been for over 20 years. There are still people in my life who knew me before being committed and know me after. Sometimes it seems like they're comparing me to the potential they believe I had before to what they see now. I was forced into treatment for anorexia, but I only maintained the criteria for that diagnosis for about five years, but I've had PTSD from that forced treatment and maintained the symptoms of that PTSD for over 20 years. What does that mean for a system that claims it was designed to help people in distress if it creates this other problem?

Because who knows what I could have been if I'd never gone through this. 

Michelle: Yeah, and I see how you navigate the world, and also I think of how others in similar positions would have to make some of the same constant decisions that you have to make. Job applications ask for you to report mental health, in some cases, housing applications do the same thing. When you go see a doctor and they ask you about, you know, your past experiences to help inform care, you know, every single one of these things ends up being this decision where you take a huge risk in choosing how much to divulge, how little to divulge, and also then puts you in the position of maybe making moral decisions you wouldn't like. For instance, well, don't really wanna lie, but this could save my life, so I guess I'm going to be a liar now. Not just for you, but for anyone who's been in this position of, you know, what happens if I get into an accident? What kind of paperwork out there exists about me. It paints a very specific picture that's going to immediately change how someone engages with me, how they treat me, how I get help. It's almost horrifying enough that you asked for help one time and this happened, but now asking for help has exponentially increased terror associated with it. I mean, if you broke your leg, I don't know what you would do. You'd probably just duct tape it and move on.

Jesse: I think this connects to what Nancy said about Massachusetts being good on the law, but not necessarily on the practice because all of my commitments happened in Massachusetts, so there's that record. And now I am in New York, I've been in New York for several years and for many of those years I didn't have health insurance. Partly because of cost, but largely because I was worried that if I had health insurance it would give an incentive for someone to commit me again if I ever ended up in a hospital for any reason. But then I got married and being married I'm now on my spouse's health insurance, and I have to wrestle with this question of, in New York simply having that past commitment, that is all they need to authorize detention and a psychiatric hold. In Massachusetts there would have to be an additional finding, you couldn't simply look at my history and say, this is sufficient to authorize a psychiatric hold. So as horrific as going through the Massachusetts system was for me, I am now in a situation where everything that happened in Massachusetts could now be used to justify someone doing it to me again in the state that I'm in. And I don't know what to do about that. I sincerely don't know what I would do if I broke my leg. 

Michelle: I mean, duct tape's, not out of the question…

(laughter from Jesse)

Michelle: I do feel like this is why it is so important and valuable that we are going state by state because this is where we're at with some of these systems. We're talking about one of the good states right now, that's scary. And I think that that is worth highlighting to people that what will only 80% traumatize you in one state could 120% traumatize you in another? I mean, it's just, I'm glad we're talking about it. 

Jesse: Me too, and I'm glad we're continuing to talk about it because next time on Committable, we'll be talking about West Virginia.

(closing music from Reasonable by Christopher G. Brown)

Jesse: Committable is produced by Jim McQuaid, Michelle Stockman, and me, Jesse Mangan. All music is from the Song Reasonable by Christopher G. Brown.

S3 Episode 6: Maryland

Jesse:  Jim, how are you doing? 

Jim: I'm ok, I have a question. 

Jesse: Sure, what's the question? 

Jim: If you get committed in mid-air, like if there's a psychiatrist on board, or an Air Marshal, what state's laws get applied? 

Jesse: Oh, I don't know, because I think state laws are what define who is the authority to detain someone for a psychiatric evaluation, and Air Marshal are federal. 

Jim: Oh, federal law enforcement can't commit you. 

Jesse: No, I think they can, but that authority is granted under a state law and I think, generally speaking, most activity on airplanes falls under federal jurisdiction. So my guess would be that the Air Marshal would just use their more general powers of detention to confine a person until the plane lands somewhere where a state mental health law then kicks in. But yeah, I don't know the answer to that question. 

Jim: I just didn't know if you might know, and then you could tell me. 

Jesse: Yeah, that is generally how questions work, but what I would like to know is what podcast is this? 

Jim: But what? 

Jesse: The intro Jim, the intro. 

Jim: This is Committable.

Jesse: Perfect, and cue music.

Jesse: This is Committable, a podcast about involuntary commitments. I'm Jesse Mangan and I'm here with Committable producer Jim McQuaid. Jim, are you excited to talk about mental health laws in Maryland? 

Jim: Excited is the exact word that I would use to describe my feelings about talking about Maryland. 

Jesse: Perfect, because for this episode to learn more about mental health laws in Maryland I spoke to Luciene Parsley. 

Luciene Parsley: Hi, I'm Luciene Parsley, I'm the legal Director at Disability Rights Maryland, and we are the Protection and Advocacy center for persons with disabilities for the state. 

Jesse: So every state is different, but generally the process that leads to an involuntary commitment often begins with some sort of detention for evaluation, so my first question for Luciene was, How does that detention for evaluation process work in Maryland? 

Luciene Parsley: So the process is usually begun through something called an Emergency Petition, and I think in the law it's called an emergency evaluation, but colloquially it's called an emergency petition or an EP, and it can be done one of two ways. So a professional, meaning A doctor, a psychiatrist, a social worker, a mental health worker, someone working professionally with the individual, can execute an emergency petition and then call the police and have it executed. If it's not a mental health professional, it's family or a friend, someone else who is concerned about the individual, they have to go to the district court and put in an application for an Emergency Petition.

It's an ex parte hearing, so that person goes before the judge and the person with disabilities is not present, and they explain to the judge why they think the person has a mental health disability, a psychiatric disability, why they believe the person is a danger to themselves or others. And usually the judge will ask some additional questions about, is the person on medication? Are they currently taking their medication? Some additional questions to try to bring out whether the person is actually a danger to themselves or others. 

Jesse: So at this step in the process, it is either a legally acknowledged professional who is filling out a form, and then police will show up and bring the person in for evaluation. Or could be a community member who goes before a judge. And at that point, still the person does not have a hearing but then the judge can ask police to go pick that person up, right? 

Luciene Parsley: So the judge will issue a warrant and the police will show up at the individual's house. In almost every single case, the person is handcuffed and taken in the back of a police car to the emergency room, and the emergency room has to receive the individual and evaluate them. It's supposed to be done within six hours, it rarely is. Sometimes the police are asked to stay with the individual, they don't usually like to do that, and the individual stays there until the emergency department personnel decide whether they should keep the person on observation status and propose them for an involuntary admission or a commitment, or else let the person go home.

Jesse: So in Maryland, as in many states, the detention for evaluation process can be initiated by a qualified mental health professional, by a member of law enforcement, or by a member of the community who applies to have someone else detained in an ex parte hearing. 

Jim: So the person who is going before the judge, the person who is being described as needing to be committed isn't present? And it sounds like they're explicitly not present. I mean, that just seems like a pretty awful policy. 

Jesse: Yeah, that's my understanding, that the person who is suspected of needing an emergency evaluation is not present for that initial hearing.

Jim: Is the idea that it's an emergency hearing, so you don't have time to get the person in?

Jesse: That would be my guess. This whole process is referred to as an Emergency Petition and can lead to police being sent to your home with a warrant to bring you to an ER involuntarily. So I assume that authority is being justified by the belief that there is an immediate need for this person to be detained. 

Jim: It's always the police? 

Jesse: In a situation where a warrant is issued my guess would be that it is only law enforcement who has the authority to carry out that warrant and forcibly detain someone, but it's a frightening concept. All of this could be initiated without you ever even knowing that the process has even begun. So my next question for Luciene was at that point where the person's being forcibly detained, what rights, what options does that person have? 

Luciene Parsley: They have very few rights, we do have rights for people in mental health facilities but most of them do not attach in the emergency department. So they are sometimes kept, often kept, on a locked part of the emergency department where they can't leave if they wish. They typically have their clothes taken away from them, and anything that they might use to harm themselves. They may have their phone taken away from them. Sometimes they can call and ask for assistance.

Jesse: So at that point they're waiting for someone in the ER to evaluate them and make a decision about what happens next. Is the person doing that evaluation, does that have to be a physician? 

Luciene Parsley: No. In fact this has been a matter of great debate in the Maryland legislature almost every year. It has to be either; one physician and one psychologist, two physicians, one physician and a psychiatric nurse practitioner, one physician and a licensed social worker, clinical, or one physician and a licensed professional counselor. So every year some professional organization is back trying to make it even easier to propose a person and certify them. 

I mean, this has caused a number of problems because the public defender has told us that they've found individuals, for example, an elderly person who's had a urinary tract infection that caused some temporary mental status alteration, or someone that had a mini-stroke, a TIA, and they're not readily identified in the emergency department. That medical condition isn't found until  later and the individual is proposed for admission. So, yeah, it needs to be two people that do the certification of the individual and only one of them needs to be a physician. And every year they try to change it.

Jesse: So at that point, If any combo of those two people decides that an admission to a facility is appropriate, what happens next? 

Luciene Parsley: They execute two certifications and then they fill out a form to admit the person. It's technically called on “Observation Status”, and they're admitted to the inpatient facility. That is supposed to happen no later than 30 hours, so no one should spend more than 30 hours in the emergency room. This is rarely followed, in fact we typically see, especially children, have been in the emergency room for weeks at a time. But it's not unusual for people to be in the emergency department for days at a time, that's pretty routine. They're looking for a bed, a hospital bed, cuz many of the emergency departments don't have their own psych unit. Once they do get transferred though, they have to be seen by a psychiatrist within 24 hours of their admission. Of course, that could be multiple days before they're actually admitted.

Jim: Two people seems like more than most places, am I wrong about that? Do you usually need two people? 

Jesse: It really depends, the details of these sorts of laws vary significantly from state to state. From one perspective, you could view having a two-person certification process as a good way to make sure that the coercion being used in this process is legally appropriate. But from another perspective, if only one of the people involved in that certification is a physician  then that might raise questions about the power dynamic between the physician and the other person involved in the certification process. It also might raise important questions about whether or not that second person has the necessary experience to certify that the symptoms being observed are not the result of some other sort of medical condition. 

So Luciene mentioned someone with mental status alterations that were actually being caused by a urinary tract infection, or a mini-stroke. And I've spoken to attorneys in other states who have talked about representing clients who were committed for symptoms that were initially thought to be related to a mental illness but were later confirmed to be symptoms caused by Lyme disease or vitamin B deficiency. And in those cases, once the person was committed they had to go to a court to prove that the symptoms were caused not by a mental illness, but by this other thing. They had to prove to a judge that the people who certified the commitment got it wrong. 

Jim: There's very little here that pays any regard to the actual human being. From the issuing of a warrant, or from, you know, whatever initiates the process to the police showing up, to being handcuffed, to being strapped to a gurney, to being transported to a place, to being stuck in an ER, to being, you know, whatever. At every point along the way it's for the convenience of the system it seems like. 

Jesse: And then, after all of that, you are brought to a psychiatric facility and you don't know how long you're going to be there. So my next question for Luciene was, At that point where the person arrives at the psychiatric facility, what options do they have? What protections do they have? 

Luciene Parsley: They have almost no protections. Once they are admitted a hearing has to be held within 10 days. So they can be admitted voluntarily, and if they are, they're not involuntarily admitted. But if they're proposed for involuntary admission, a hearing needs to be held within 10 days, and that's done by an administrative law judge. And there's not much in the way around this. So what happens is that oftentimes people will agree to a voluntary admission thinking that it'll buy themselves some time to show that they're more stable and can get released prior to their hearing date. They do have representation from a public defender at their hearing, but it's 10 days later, and by that time you may have lost your job, your kids could have been taken into DSS custody, all kinds of things could have happened. 

Jesse: What is the difference between voluntary and involuntary? Do you have more options with one than the other?

Luciene Parsley: So, if you agree to be admitted voluntarily you can ask to leave as soon as you arrive and are admitted to the psych ward, but the hospital will then have three days to decide whether or not they want to involuntarily commit you. So if you show up and you say, I'd like to leave today, they have three days to decide. If they decide, no, we want to keep you, then they have 10 days to hold a hearing. And there's actually something in the law that allows for an additional seven days for good cause. So the hearing could, honestly I've rarely seen this, but 17 days from your admission. They have to specify good cause at the ALJ hearing, why that took so long, so I don't see that often, but it could be quite a long time. 

If you are voluntary, you cannot be forcibly medicated, so that's a good thing because that is terrifying to people. And I think in general, on a more everyday basis, the doctors, the staff on the psychiatric unit typically look at that as evidence that the person is trying to engage in their treatment. So it's generally seen more favorably. I think most of the hospitals prefer voluntary so that they can try to create some relationship with that person. 

Jesse: What is an ALJ hearing? 

Luciene Parsley: Well, that stands for the Administrative Law Judge hearing. So we have an Office of administrative hearings, it's an administrative court process. And those hearings are held either at the hospital, or nowadays through Zoom, most typically. And it's a more informal hearing but typically the hospital will show up and explain, they don't often have an attorney, why they think the person meets the criteria. So that would be that they have a mental health diagnosis, that they present a danger to themselves or others, that they are in need of mental health treatment, and that there is no less restrictive environment where they could receive that treatment.

Jesse: So now we're talking about voluntary versus involuntary, a dynamic that is brought up in pretty much every interview we do. Because the common practice for clinicians is to interpret the no less restrictive environment standard as meaning that you ask the person if they want to go inpatient voluntarily before you commit them involuntarily. The thinking there seems to be that voluntary is less restrictive than involuntary, but if those are the only options presented, is it actually voluntary? 

Jim: Where along this path has there been any actual efforts on the part of anybody who was involved in this pipeline, from someone living their lives to being committed. Where is there any effort to actually obtain the consent, or the buy-in, or whatever, of the person? For practical purposes when does that happen? Ever? Like, it's not.

Jesse: Yeah, and I think the assumption by policy makers is that the significant amount of coercion and force authorized to be used in this process is acceptable because of these legal checks, these standards that theoretically have to be met. The person authorizing the detention has to believe that a mental illness is present, they have to believe that inpatient treatment is necessary, and they have to believe that there is some form of danger present. But as we wrapped up the interview, Luciene brought up a really interesting point about that last standard, the finding that there is some form of danger present, and how that standard in Maryland has recently been changed.

Luciene Parsley: Oh, the other thing I was gonna mention is that prior to 2003 the criteria for an emergency evaluation, an Emergency Petition, it was much stronger than it is now. So it was, clear and imminent danger for the individual doing bodily harm to the individual or another. So you could not be Emergency Petitioned unless you met that criteria. And that has changed. It's now just danger to life or safety of another. So what that means as a practical matter is if a family member says to either a police officer, or the therapist or something, the individual was doing something that I think was dangerous. Maybe giving their possessions away and talking about being homeless. It's not overtly dangerous, it's not imminent harm, but it made the parent or the therapist, whomever, very worried, now they can be Emergency Petitioned for that. Whereas previously they could not be. So that law has changed. 

Jesse: I've struggled to understand some of the justifications that I've heard, like I spoke to a psychiatrist who is giving a prime example of someone who he would commit, and he was like, if a person comes into an ER and they haven't bathed for days and their hair is disheveled and they're talking about maybe they're a millionaire. And I hear what he is saying and I think, well, yeah, but none of that's any of our business, if they look disheveled. 

Luciene Parsley: Yeah.

Jesse: But in this case it's enough. It's sufficient to simply believe that a person might choose a difficult path, I guess? Like being homeless is not preferable, but it's complicated why someone is in that situation and doesn't necessarily mean that there's imminent danger.

Luciene Parsley: Absolutely, and of course imminent danger right now is not the standard, but our lieutenant governor has a commission on mental and behavioral health, and he has really been strongly advocating for loosening the standard even further. This time for involuntary commitment. So he wants to make the standard at the typical stuff about, danger to self or others, but to add at risk of psychiatric deterioration due to their disability. Which almost anyone who has a disability could conceivably be at risk of deterioration, I suppose, or even if you don't have a diagnosis. But this is, I believe, at the behest of family members and the Treatment Advocacy Center who have really pushed for individuals to have more forced treatment because they believe that people don't have the ability to understand their disability and make good decisions and will not choose treatment.

So this has been the push in Maryland and thus far our behavioral health administration has not acted upon those recommendations from the Lieutenant Governor, but this is something we expect to see in the legislature coming up in January. We'll see. 

Jesse: I've been very curious about this struggle because I've interviewed people from the Treatment Advocacy Center, and I've interviewed people from other organizations that are primarily about family support, and I keep hearing this term, anosognosia, anosognosia. Anosognosia is not defined anywhere. It's not defined in the DSM, it's not defined in state law or federal law. So it seems like advocates are pushing forth their own definition. 

Luciene Parsley: Mm-hmm.  

Jesse: And getting enough influence to have state legislation follow guidance based on an undefined term. And I just don't understand why that's, why that's okay. 

Luciene Parsley: I think there is, not to make their point, but I think there are a group of parents, and sometimes I feel for these parents, and they will come to these meetings and say, I had or have a son or daughter who's an adult who is choosing a lifestyle that I don't agree with, and I'm alarmed about, you know. And you hear the stories and I think these are sometimes very prominent families who are coming to some of these hearings and their son or daughter does appear to have a mental health disability, is not dangerous, is not committing crimes, is not violent, but is not making decisions that the parent agrees with and or not taking care of themselves. So the parents, this feels to them like they need to intervene. And probably if I had a son or daughter in the same situation I would struggle with this too. I did have a brother who took his life sort of under similar circumstances, I guess that's where my compassion for these families kind of comes from. But I don't believe that forcing them into treatment is gonna solve the problem. And there's no way that individuals are gonna remain in treatment, engage in treatment, if they're forced. They'll probably do it for the period of time that they're in the hospital until they figure out what they have to demonstrate to get out. And that's what I've seen over and over again, that peer support and engaging people where they are is our best shot at trying to make sure people stay alive and healthy and not traumatized by the system.

If you go into the hospitals, which we do, in the state hospitals there's a lot of caring staff, there's a lot of people who really want for people to get well. But a lot of times there's not a lot of overt treatment actually happening. So you'll see groups happening and they are, in the state hospitals they're competency groups, their anger management groups, or understanding your disability groups, maybe some music therapy. In the private hospitals, the groups are often even less therapeutic. And then they may see their doctor for five minutes a day, if they're lucky, they may have counseling or not, often in the private hospitals you don't. So you have to question, other than giving you medication and adjusting your medication, what are they actually doing to provide treatment and why does that need to be provided on a locked unit like that.

Jesse: There seems to be this tension between advocates who want to broaden the criteria for involuntary commitments, to make it easier to commit people, and advocates who want to create and reinforce laws that respect people's rights. Often as part of an argument to justify making commitments easier people will cite anosognosia, or lack of insight. Anosognosia is a medical term that typically refers to a physical injury, or an objectively identifiable condition, that impairs a person's ability to understand that they are displaying symptoms related to that injury or condition. And as far as I know this term has never been clearly defined in relation to mental illness. Which is a really important thing to consider because diagnosing a mental illness is typically done by clinician perceiving behavior and identifying the symptoms that they believe are being suggested by that behavior, so essentially it's an opinion. An opinion that can be heavily influenced by bias or miscommunication.

So co-opting this medical term, anosognosia, and applying it to mental illness lends a sense of legitimacy to clinicians who say, this person doesn't understand themselves well enough to make their own decisions, this person lacks insight into their illness. Which can be used to justify taking their rights away, it can be used to justify a commitment and…the first time I heard this term I had been committed to a psych ward for anorexia and was being confined to a wheelchair. Not because I had any trouble standing or walking, but because a psychiatrist viewed it as a form of treatment for anorexia. So I'm committed to this psych ward, confined to a wheelchair, and on a caloric intake plan designed by the resident nutritionist. During every meal I am isolated from all the other patients and monitored by staff, and yet I'm losing weight. The psychiatrist blames me for this weight loss, not with any real theory or proof, just threatens me with further restrictions if I don't start gaining weight. So I try to engage in a conversation with the psychiatrist, pointing out that the staff sometimes forgets to order my meals resulting in me going without food and having to scrounge through cupboards for little bottles of baby food and single serve packets of peanut butter just to try and get any calories in. And on top of that, the nutritionist’s plan is flawed, not as a matter of opinion or preference, but as a matter of math, the numbers don't add up to enough calories to reasonably believe that any real weight gain is going to happen. I point these things out to the psychiatrist because I'm trying to demonstrate that this is not an appropriate facility for the treatment of anorexia, and if he really believes that my situation is so dire that involuntary detention is necessary then he needs to transfer me to a facility that is equipped to treat anorexia. In response to this, the psychiatrist says that he believes I'm displaying signs of anosognosia, a lack of insight into my condition. 

At the time I essentially disregarded the statement because I knew I wasn't wrong, so I assumed I just wasn't communicating well, I just needed to figure out a way to articulate myself better. And for almost 20 years after that I put this term anosognosia out of mind. I had almost completely forgotten about it until I started talking to people from the Treatment Advocacy Center, people advocating for more commitment laws. And now every time I hear this term used to justify commitments I feel like I am back in that wheelchair having my reality dismissed because it doesn't match a clinician's opinion. And I just wanted someone to listen because at the time I didn't really understand the law, but I knew what was happening was wrong. And I needed someone to acknowledge that.

Jim: So you just said that you didn't know the law, do you think it would've mattered though? I mean, do you feel like if you had known the law then and you could have said this was the law, that it would've made a difference?

Jesse: I don't know, I mean, I still don't know how to disprove a clinician's opinion. I don't know how to prove that a facility is inappropriate for a commitment. 

Jim: I mean, isn't that really what all the criteria really is? The doctor says. That's what the law is, that's what the rules are, it doesn't matter what the statutes are, the doctor said this thing. It's true by virtue of the fact that the doctor said it.

Jesse: In many ways, yeah. Once that doctor made that declaration about me, that I lacked insight, it can go into my medical records and any other clinician who looks at those records is going to view that as fact, as truth. And this is why not having a clear definition of what anosognosia means in regards to mental illness is so problematic because how can I disprove that? Even if I get before a judge, how do I disprove an undefined term? I was already physically confined to a wheelchair, on a locked ward, and this was just like taking something else away, just like diminishing any ability I had left to even attempt to advocate for myself.

Jim: Jesse, I am so excited for getting to the end of all this and you saying, and reassuring me and everyone else who's listening, that everything is okay. And there's gonna be inspirational music, and we're all gonna feel good knowing that all these problems have been dealt with, and then we can just, we can feel good. I'm so excited for that. I'm so excited. 

Jesse: I'm glad you're excited Jim, and thank you for that smooth transition, because next time on Committable we are talking about mental health laws in Massachusetts. 

Jim: Okay, I feel great. I'm gonna go have a cry. 

Jesse: Me too, but first, how about some of that inspirational music?

Jim: Yay.

(Music from the song Reasonable by Christopher G. Brown plays)

Jesse: Committable is produced by Jim McQuaid, Michelle Stockman, and me, Jesse Mangan. All music is from the Song Reasonable by Christopher G. Brown.

S3 Episode 5: Missouri

Michelle:  This. Is Committable. This is Committable. This is Committable. 

Jesse: There it is.

Michelle: Boom. 

Jesse: Alright, are you ready to talk about Missouri? 

Michelle: Alright, let's do this.

Jesse: And cue music.

(intro music from Reasonable by Christopher G. Brown)

Jesse: This is Committable, a podcast about involuntary commitments. I'm Jesse Mangan and I'm here with Committable producer Michelle Stockman to talk about mental health laws in Missouri. 

Michelle: Missouri! Alight. 

Jesse: And this episode is going to be a little bit different because we won't be focusing on civil commitments. Instead, we'll be looking at the criminal commitment process and to better understand that process I spoke with Elizabeth Satchell.

Elizabeth Satchell: My name is Elizabeth Satchell, I'm an attorney with the Public Defender's Office in Missouri. I just finished my ninth year, so I'm in year number 10, so I've had a lot of experience with criminal cases and how mental illness, um, how they intersect and what can go wrong and what can actually work out.

Jesse: Would you be okay introducing your dog? I heard, think I heard a dog and I think. 

Elizabeth Satchell: Yeah, his name is Chi, he's part lab part collie. 

Jesse: That's great, I think I might just play a little piece of that to let people know what the tag sound is at some point.

Jesse: So when it comes to interactions between people perceived to be exhibiting symptoms of a mental illness and systems of civil commitment, there are a lot of parallels between that civil commitment process and the criminal commitment process. One important difference though between these two systems is that a civil commitment does not require any allegation of criminal conduct. But in order to be put on the path towards a criminal commitment there does have to be an initial allegation that this person committed a crime. So my first question for Elizabeth was at the point where someone is being detained because they're alleged to have committed a crime, if mental health is believed to be a concern, what changes in that criminal process? 

Elizabeth Satchell: Well, there are a bunch of different ways that mental illness, mental disease, or some kind of abnormality, how that intersects with the criminal case. So I think in most cases it's more of a mitigator. Someone might have assaulted their spouse or something like that, but it was due to mental illness, a mental health condition where maybe they didn't take their medications for a few days or something. Or it's just undiagnosed or untreated. And so as a mitigator, that defense attorney might suggest, Hey, go to a local mental health clinic, do an assessment. How about you follow through with counseling or medication, et cetera. So we use it as a mitigator that way, but then also if it's serious enough that it's affecting their competency, being able to understand the proceedings and their ability to assist in their own defense, then we start the commitment procedure through the criminal case.

Jesse: So I guess there’s two different paths, basically. There's sort of a mitigation path to try and avoid more serious forms of detention, but then there's a commitment path, and that's based off of concerns about ability to comprehend, competency? 

Elizabeth Satchell: Yes.

Jesse: For the competency route, is it the defense attorney who first raises that concern of, I'm not sure this person comprehends the situation they're in?

Elizabeth Satchell: It can be judge, prosecutor, or defense attorney that triggers it. So there just has to be reasonable cause that the person doesn't have the capacity to understand what is going on, or assist in their own defense. So it could be judge just on his/her/their own. Could be a prosecutor saying something's not right here, or it could be the defense attorney. And that just triggers the statute.

Jesse: Once that competency process is triggered, then what happens to the person? 

Elizabeth Satchell: We have a hearing with the judge and then the judge determines yes, there's reasonable cause to believe that this person doesn't have the capacity to continue, and then the case is stalled, you know, put on hold. And that person gets an evaluation. The statute says it could be with a private doctor that agrees to be appointed, however, that never happens. Usually that person goes to the department of Mental Health for an initial evaluation.

Jesse: So the case is stalled. 

Elizabeth Satchell: Right. 

Jesse: So that means that the goal would be to assess competency and hopefully bring the person back if they can at some point understand the proceedings.

Elizabeth Satchell: Right, right. The overall process, and there's a bunch of more steps too, but the overall process is to determine whether the person has a mental disease or defect that is preventing them from having the capacity to understand what's going on or assist their attorney. And then if that is present, then the next step is to help them regain competency and then continue with the criminal case.

Jesse: “Mental disease or defect” sounds like a broad term. Does that include intellectual disability? 

Elizabeth Satchell: Yes. 

Jesse:  And developmental…

Elizabeth Satchell: Yes. 

Jesse: Includes any type of, anything that would…

Elizabeth Satchell: Just about anything except for drug and alcohol addiction. Just run of the mill addiction is not mental disease or defect under capacity. And it's kind of tough because we're looking at whether someone has a capacity to understand, you know? So, ssually what I see with judges is that if anything, any concern is brought up that usually it triggers the statute because there's the punishment side, but then there's also the terrible side of trying to punish someone when they don't understand what's going on. And so it's pretty easy to trigger the statute. 

Jesse: So a person is accused of a crime, they're being detained, probably in a jail, and someone involved in this process could be the defense attorney, the prosecuting attorney or the judge. Someone raises the question of whether or not this person is competent to stand trial for that crime. And that can trigger a process where that person is sent to a psychiatric facility for evaluation. So what happens next? How does that evaluation work?

Elizabeth Satchell: In the initial stage, like I said, they're just getting an evaluation by a doctor at the Department of Mental Health. It has to be done within 60 days, unless they request more time, but their interview is usually just, do they understand the proceedings? Do you understand, what does a judge do? What does your attorney do? What does a jury mean? Why do you go to trial? Et cetera. So there's a bunch of questions like that and then they also assess just general mental health status. So it's not, are you a threat to yourself or others or anything like that. It's, do you understand the process? And then just generally, do you understand where you're at and what's going on? So that initial process takes about 60 days. 

Jesse: Is that evaluation a very time specific question of competency? Are you trying to determine competency now? Or are you trying to determine were they competent at the time of the alleged crime? 

Elizabeth Satchell: Triggering this statute it’s competency now. There's a different thing called, Not Guilty by Reason of Insanity,  or NGRI, that looks at whether that person was competent at the time. And so those are two different things. But with NGRI, it can trigger the statute as just a different reason, different path, and a different focus of the evaluation.So we don't have those cases very often. 

So the typical person on the street, if they do end up with DMH evaluation through a criminal case, it's usually in the competency path, 

Jesse: NGRI, while it gets a lot of attention in media and such, do you have a sense of how common it is? Like, what percentage of cases that actually comes up?

Elizabeth Satchell:I've been in the same office for, like I said, I'm going into my 10th year and I'm aware of maybe one. So it's very, very small. Very, very small. 

Michelle: I don't know how many episodes we've done of Committable so far, and the number of states we've covered. Sometimes the process is like, go left and then go right and then go left, but then if you go left, go right twice, then go upside down four times. I just find it hilarious that one of the bars is, do you understand what's happening here? We've been doing this for a while and I still don't really understand, it's really complicated. 

Jesse: Yeah, my hope would be that the bar for declaring someone incompetent would be about specifically proving that they are incapable of understanding what's going on. Not that they don't currently understand the details of the system. 

Michelle: A system that is notorious for its confusion, and notorious for its ability to write things in supposedly plain language that are in fact too confusing for most people to understand. 

Jesse: Yeah, so a person is accused of a crime, suspected of being incompetent to stand trial for that crime, sent to a Department of Mental Health facility to be evaluated for competency, and that evaluation is supposed to happen within 60 days.

But how does that work? Is it as simple as a clinician just checks a box that says, competent or not competent? Does someone from the DMH facility just declare their findings to the judge? How does that process work? 

Elizabeth Satchell: They write a report and it just sort of depends on whether the judge, prosecutor or defense attorney agrees with the report from DMH. And so, If that person is found not competent to proceed at that point, and everyone's in agreement, that person is just committed to the Department of Mental Health and then they receive treatment to try to regain competency. Usually around six months or so there's a report by DMH saying, Yes, we've regained competency, or, No, we need more time to regain competency. Now if they are found incompetent and everyone agrees with that, that’s just kind of really easy. The contested part is what triggers a lot of hearings with additional witnesses, et cetera.

So if, let's say, Department of Mental Health says the person is competent, and frankly that's what happens a lot. It's actually quite hard in my experience for someone to actually be found incompetent by DMH. I think part of it is during the initial evaluation, it seems like DMH does a brief evaluation, especially with Covid, it's usually over Zoom or some kind of video conference. And so I think it's really hard to gauge someone's competency just over video for like 20 or 30 minutes. If I have someone who has a competency issue evaluated by a doctor, usually it's a full day of evaluations before our doctor determines whether the person's competent or not, because like I said earlier, we don't wanna trigger this statute if we don't have to because it's just another type of prison.

Most of the time, I will say DMH under this initial evaluation does find the person competent, at least in our experience. And then if we don't agree with what DMH says, then we can request to have time for our own evaluation, so we can hire someone to have a second opinion. And so we have to make a written request within so many days, 10 days I believe. And then we have another, I believe, 60 days. There's a specific number of days we have to get our own, you know, second opinion. And then once we do that, if we have conflicting findings by the doctors, then we have an actual hearing where we can present witnesses and evidence, et cetera.

During this initial hearing, at this point, a judge could actually call a small jury of six people to determine whether the person is competent or not. However, that usually doesn't happen. It's usually just attorneys and doctors and battle of the reports. Then at that time, the judge determines whether the person should be committed to the Department of Mental Health for treatment, and so whether DMH agrees with it or not, the judge makes the determination at that point. And if the judge determines the person is not competent and commits them to DMH, then that person gets treatment at DMH to try to make them competent. And that goes along with the six month phase. 

Jesse: This sounds like a process that is necessary to some degree cuz there are a lot of ethical questions about trying someone who isn't, doesn't understand what's happening.

Elizabeth Satchell: Right. 

Jesse: But there's a lot of, also a lot of questions of, even if that is correct, even if your assessment is correct, this person doesn't comprehend then they could be in that treatment facility. They're basically there until further notice, until it is determined that they are competent. Elizabeth Satchell: Right. 

Jesse: So if someone is in a facility for months, if not years, and someday it is determined they're competent, does the time they spent in the facility count towards time spent if they are convicted of that crime or something like that?

Elizabeth Satchell: Yeah, that would be our argument, yeah. I mean, I've had people, they went to DMH on a misdemeanor and they spent more time in DMH than they would have under the statutes if they were found guilty at trial. But yeah, it can get out of control. And so if someone has a lower charge like that, then I usually try to see if there's some kind of alternatives.

Jesse: Are you encountering situations where someone is charged with a misdemeanor, could be trespassing, it could be urinating in public, something like that, and that then ends up with them being caught in this very serious process where they can be detained for almost, I mean, it seems like as long as there's a question of competency, they can be detained for an indefinite period of time.

Elizabeth Satchell: Yes.

Jesse: Okay. 

Elizabeth Satchell:: I really look hard if I have a lower level like misdemeanor stealing, or like misdemeanor assault or something. We really look hard at, like if the person's incompetent or has a serious mental illness or something like that. We try to figure out an alternate way rather than triggering this DMH process.

I've had a bunch recently, in the last couple years where pretty minor offense but they have an intellectual disability or something like that, and so they actually just really need a guardian. I don't, we don't want to jump to guardian, that's another whole issue that can be abused, but if there's some kind of way to resolve it without going the DMH route on something really low, then we try to look for alternatives. DMH alternatives to incarceration. 

Jesse: So with this competency process, someone can be accused of a misdemeanor, something like public urination, trespassing, stealing some food, something like that. And then have their competency questioned and spend more time being detained for evaluation in a psychiatric facility than they would have if they had gotten the maximum sentence for that misdemeanor. Which is frightening. 

Michelle: Oh my gosh. Okay, continue. 

Jesse: Okay, so we've been talking about what happens if someone going through the criminal process is diverted to a psychiatric facility, but what about the time in between? Is there a waiting period before that person even reaches the psychiatric facility? 

Elizabeth Satchell: A lot of times there is, and we often don't know how long that person is going to wait either, they could spend months and months in jail. Recently I got a case where, I actually didn't get his case until after he was delivered to the Department of Mental Health, but he was in the jail and I was aware that he was in the jail, we just didn't have his case yet. And he was there for months and he was playing in his own feces, smearing it on the wall, doing this weird like bird holler/hoot thing and banging his head against the wall. And he was there I think for months before a bed opened up at the Department of Mental Health.

Jesse: So whatever the condition was when the person first entered the system, it's probably safe to say it did not get better during that time. 

Elizabeth Satchell: Right. And if someone is in the throes of a mental health situation like dementia, they don't know what's going on. Or let's say they're developing schizophrenia and there's hallucinations and they’re just out of it, or kind of seems out of control in jail, they're usually put in solitary confinement, which makes things worse. They're often manhandled by officers who just don't understand what's actually going on or how to deescalate the situation. Sometimes they're stripped down and put into what's called a pickle suit, just like a loose covering, sometimes they're strapped to a chair. So really they can be tortured. In my mind, it's torture. And then things are just made worse by how they're treated in the jail. It's terrifying. 

Jesse: So there are these pitfalls, these nightmare scenarios that can arise within this system. But in theory, someone whose competency is being questioned should arrive at the Department of Mental Health Facility and be evaluated for competency within 60 days. Then someone from that DMH facility gives the findings from that evaluation to the court. So what happens next? 

Elizabeth Satchell: If the defense attorney or someone doesn't agree with what DMH says, we can get a second opinion and then have a hearing. And then judge will either find that person competent and usually agree with what DMH says, or commit them to DMH and agree with what our expert says. And so if they are committed to DMH, then they go to the DMH hospital and then they receive treatment to try to regain competency and so they might receive medication, other kind of treatment like that. But then they also take like these classes, where they're taught, you know, this is what a judge does, this is what an attorney does. And then they're kept there until they regain competency. 

Usually at around six months or so, they provide a report to judge, although it can be before that if that person regains competency. But at six months, they have to provide the judge with a report unless they ask for more time, and then it's just, six months, six months, six months. Until a determination is made that they have regained competency, or there's no reasonable probability that that person will regain competency in the foreseeable future. So that triggers two other things. 

Jesse: One thing that's really interesting is this idea of giving someone classes and workshops, or something on understanding this is what an attorney does, this is what a judge does, this is how a court works. Because I imagine that most people in the general public would benefit from lessons like that. 

Elizabeth Satchell: Yeah. 

Jesse: Is that the bar for competency? Are they specifically asking, does this person understand the legal system? Or are they capable of understanding the legal system if taught?

Elizabeth Satchell: In our opinion, DMH focuses more on can you identify all the people in the courtroom and what they're supposed to do. We think, just from on the defense side, we think that they focus more on that part versus being able to assist in their own defense. And so when we do have a battle with DMH it's usually about the second prong, being able to assist in their own defense. Because I think at some point if someone hears something enough times they'll be able to parrot, you know, a judge sits up there and they determine this, or my attorney is supposed to help me. But our focus and our real concern is whether they can assist in their own defense and they actually understand their rights and how they wanna exercise them. And decisions to make as far as whether they wanna testify, whether they have witnesses and can tell us about them so we can investigate the case, et cetera.

So just personal experience, DMH tends to focus on the beginning part, who the judge, attorney, et cetera is, and then we're more concerned about whether they can actually assist in their own defense. That's usually where the battle is, at least in my cases and experience. 

Jesse: So the person's at the point where they are in the facility, they're being evaluated for competency, they're receiving access to classes, things like that. What happens then? What's the rest of the process? 

Elizabeth Satchell: So at some point we have these six month reports from DMH, and so if a person is found competent by DMH to proceed, and the defense attorney usually will meet with their client to see are they in fact better, et cetera. If they don't agree with what DMH said and the defense attorney still thinks that person is incompetent, it can trigger another second opinion. And so, written request, again within 10 days of the report, up to 60 days to another second evaluation, and then, you know, the battle continues on the other side. If DMH does find that the person is basically permanently incompetent, they can't regain competency in the reasonably foreseeable future, then that person is committed to DMH for the purpose of DMH pursuing a guardianship. And so that person could remain hospitalized for the rest of their lives, but under the guardianship. I mean, they could be released to the community, but they'll have a guardianship. 

Jesse: So you have someone who's being accused of a crime and detained in a jail, and then is suspected of meeting the legal standard for being classified as incompetent. So then they are sent to a Department of Mental Health facility, which is a different branch of the government than the Department of Corrections. Different departments, different guidelines. And in this DMH facility there are some sort of classes focused on teaching this person how a courtroom works. But what is also really important to note is that the DMH facility is a different setting, with different policies. That doesn't necessarily mean it's a safe place, or a place that is actually conducive to recovery, but it could give access to different routines, different structures, increased access to medical care and counseling, access to different medication. So a person is in jail, suspected of lacking some type of competency, sent to a DMH facility where something in that facility might have helped them appear more competent to the other people involved in this process, then what happens? They're sent back to jail, to the Department of Corrections, where they may then lose access to whatever it was that might have been helping them.

Michelle: Oh, that makes a lot of sense. A lot of sad, sad sense.

Jesse: And what is likely to happen when this person who has been arrested, is incarcerated, who may have been in jail for weeks, maybe months before being detained in a psych facility for 60 days, or six months or possibly years. What is likely to happen to this person every time they are shuffled between these different policies and practices? Whatever it was that they might have been struggling with before they entered this process it's probably not going to get better. Michelle: Nope, nope, nope.

Jesse: So this brings us to the end of the interview where I asked if there was anything else that people should know about these intersections between mental health conditions and the criminal process. 

Elizabeth Satchell: One of my big things is not overlooking the rural areas. There might be a health facility, or mental health facility in like a big city with taxis and buses and Ubers, and so someone can usually find a way to get there. If you're in a rural community, you're out in the middle of nowhere, you might not have good phone service or internet service. The mental health facility might be an hour away driving, but if you don't have a vehicle, and it takes you all day to walk there. And usually if you're out in the middle of nowhere, unless it's your country home or something like that, usually you're low income. So even if you can get to the mental health facility, you still have to pay. Oftentimes it's on a sliding scale, but I mean, if you don't have $20 you don't have $20.

There's also issues, at least in public defender cases, a lot of people don't have IDs. And so, mental health facilities, usually a sliding scale but you have to have ID, social security card, et cetera. So, it's one thing to say, go get mental health treatment everything will be okay, when you can't even get to a facility. If you get there once, you can't get there for every single, you know, follow up appointment. Also, if you're given medication, being able to afford that or even getting to a pharmacy to get it. Also, if there is a mental health facility in a rural area, it might not be the appropriate place for someone with serious mental illness either.

And so we see a lot of cases where someone's low income, of course we’re public defender system. So someone's low income, maybe has a serious mental health issue, but just hasn't been able to get treatment because they live in a rural area and there's just no access. So these are a bunch of things policy makers and people thinking of solutions to these problems, they overlook the people in the rural communities. 

Michelle: I'm still waiting to find the state I'm happiest living in andI don't, I don't think Missouri is gonna make the cut.

Jesse: Okay, well then maybe you'll find it next time on Committable, when we'll be looking at mental health laws in Maryland.

Jesse: Committable is produced by Jim McQuaid, Michelle Stockman, and me, Jesse Mangan. All music is from the Song Reasonable by Christopher G. Brown.