Jesse: Okay. How about you do the intro, the “This is Committable” thing.
Jim: Okay. This…so I should do a pause like this…
Jesse: Sure.
Jim: Okay…(rustling of movement and sound of Jim hitting his head on the microphone)
Jesse: (laughter) Did you just hit your head on the microphone?!
Jim: (laughter)...Should this be entirely serious or…
Jesse: Yeah, I think that ship has sailed, how about just doing the intro one more time?
Jim: Okay. This is Committable.
Jesse: Perfect. And cue the music
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, and I'm ready for an interview.
Jesse: All right, then let's jump right in. For this season we are going state by state to explore mental health laws throughout the US because these laws can be really complicated and understanding even just the basics can make a huge difference for a person who is forced to navigate one of these systems.
And for this episode, we're going to be looking at mental health laws in Pennsylvania. And to learn more about mental health laws in Pennsylvania I spoke to Brynne Madway
Brynne Madway: My name is Brynne Madway, and I'm a staff attorney with Disability Rights Pennsylvania. As a staff attorney At DRP I work on a variety of issues and I have a particular interest in work relating to folks who have mental health disabilities. And at DRP we work with folks who are experiencing a wide variety of issues from abuse and neglect, to issues getting reasonable accommodations at work school or wherever they may be.
Jesse: And DRP is a protection and advocacy organization, right?
Brynne Madway: Correct.
Jesse: So that means you're federally funded to be a resource for disability rights?
Brynne Madway: We are. So as the protection and advocacy organization for Pennsylvania we receive numerous grants from the federal government and one of those is our mental health grant. And that gives us funding to provide people with advocacy services to operate our live intake line, it allows me to visit people at the state hospitals who are subject to abuse and neglect, and we can monitor and investigate cases of abuse and neglect. So we're here to make sure that folks rights are upheld and that their rights and treatment are being upheld.
And so I encourage people to call us not just to find out about their rights, but also to report any abusive or neglectful behavior so that we can, you know, have the opportunity to investigate it.
Jesse: In Pennsylvania, what is the mental health law called?
Brynne Madway: So the law that I'll be talking about today is appropriately named the Mental Health Procedures Act and that is the law that governs commitment at hospitals as well as voluntary treatment at hospitals, criminal commitment and Assisted Outpatient Treatment.
For those who wanna look it up on their own, it's at 50 PS, section 7101, it's available online. It's fairly well written, so I certainly encourage folks to look it up and be familiar with their rights. The other thing I'd wanna say is, of course, that there are administrative codes pertaining to mental health procedures, and they're in chapter 55 of the Pennsylvania code. So those are also important to know.
Jesse: So mental health laws vary from state to state, but the civil commitment process often begins with some sort of detention for evaluation. So I asked Brynne, how does the detention for evaluation process work in Pennsylvania.
Brynne Madway: So there's two ways it could begin. I think the first way is that someone could go to the hospital themselves for another medical condition, or they may want help and then decide later that they don't wanna stay. So in that case, they would be examined by a doctor, and the doctor would make an assessment about whether or not that person was a danger to themselves or others.
There's a lengthy way that this can go, like an analysis of how that works. So it would be within the past 30 days if that person had inflicted or tried to inflict serious harm on someone else, or if there was evidence that the person would be unable to care for themselves in the community.
The other way it works in Pennsylvania is that someone, a family member or a friend, could apply for what's called a warrant. And that warrant would direct the police or emergency medical personnel to bring that person to the hospital where they would be examined by a doctor. That examination's supposed to take place in two hours, and at that point, the doctor would again make the same finding regarding whether or not the person was a danger to themselves or others and order the commitment.
If someone was on, say, on the streets and in crisis, the police could do that without going getting a warrant as well. So there's a couple ways for folks to, I'll say, arrive at a hospital. And colloquially these are called 302 commitments, and that's because they're governed by section 302 of the mental health procedures act.
Jesse: So in Pennsylvania, essentially any member of the community can apply to have someone else detained for evaluation. If that application is approved, then police could be sent to a person's home with a warrant to detain that person and involuntarily bring them in for an evaluation.
Jim: Well first just the use of the term warrant, I don't know if that's an unfortunate choice of term or if that's intentional, because when you think about a warrant, it's a warrant for arrest, which is not dissimilar from what's actually happening here. So there's that.
Jesse: Yeah, so to kind of break that down. It may simply be a legal formality that the term warrant is being used, but you are absolutely right. To the person going through this process to have police show up at your home and to hear that there is a warrant for your detention, most people are not going to distinguish that from a criminal apprehension.
Jim: And I am continually disturbed by the fact that anybody can apply for one of these things. I would hope there's a high threshold for applying for a warrant and having it actually issued. But I suspect that the threshold for actually having something like that acted upon is gonna vary pretty widely.
Jesse: I think the theoretical protection for this process would be that when a person applies to have someone else detained for evaluation they are making a written claim that they believe that this other person has a mental illness and because of that mental illness there is some sort of danger. Danger to self, danger to others, or inability to care for self, one of those. And those claims are being evaluated and potentially approved by a county administrator before the warrant is issued.
But I mean, all of those standards are very open to interpretation.
Jim: Mm-hmm.
Jesse: But however the 302 is initiated, whether it's by police, a physician, or by an application approved by a county administrator, the person who is the target of this warrant is going to be brought to a facility for evaluation. And that evaluation is supposed to happen within two hours of arriving at that facility.
So my next question for Brynne was, after the evaluation takes place, what happens then?
Brynne Madway: So at that point it should be an evaluation by a doctor. I just wanna be very clear for folks because I think it's important that you, when you know your rights you know your rights and what should be happening.
The doctor should say something like, “I've determined that you meet this criteria for involuntary treatment”. And they should give that person a choice between voluntary treatment and involuntary treatment. And if they don't agree to that treatment, the doctor will issue the 302 and there's a form that they fill out and they should inform that person of their rights.
Ideally, they should be informed of their rights actually before the evaluation, so they should be able to make a call to let folks know where they are. And to let them know what the treatment’s going to be, and you should be given reasonable access to a telephone. And at that point, once the doctor issues the 302 it lasts for five days or 120 hours.
There's some overlap at this point between a voluntary commitment and an involuntary commitment. Because if at that point you agree to a voluntary commitment they would inform you that if you change your mind, they can get up to 72 hours still when you decide to leave treatment to keep you if they believe you're a danger to yourself. So there's a little overlap there. Jesse: I think for the general public, if they heard the word voluntary, they would assume it was voluntary in a more casual sense, or general sense of the word. But if you're being told you can sign yourself involuntarily or we will sign you in involuntarily. Is that really voluntary?
Brynne Madway: I think it's a euphemism in that case to a certain extent, right? I think that the law was created this way because there's a preference for voluntary treatment, and I think there are consequences, reporting consequences sometimes, that come along with an involuntary treatment. So for instance, lawyers might have a report filed with the bar.
So I think that's why this choice is presented is this preference for voluntary treatment. But I agree with you that I think we can question, if it's a euphemism at that point.
Jesse: Is there an advantage to being voluntary versus involuntary for the person who's in the facility?
Brynne Madway: I'm not sure that I can answer that question. I think under the law there may not be, but I think there's a variety of personal factors that would go into whether or not someone wanted to sign themselves in voluntarily or involuntarily. And I think that's a very personal decision. And I'd encourage folks to call our live intake line if they had a question or a family member had a question about which is better.
Jim: Okay, this is where I get pissed. I feel like a lot of the problems and limitations with the system come from people being overwhelmed, come from legislatures not knowing how to handle things, from this being a huge, complicated problem to deal with, with lots of different aspects to it, and no one really in a position to have command or understanding of everything to put together some kind of coherent system. This right now is, I don't know if swearing is okay…
Jesse: It's our podcast Jim, we can swear.
Jim: This is fucking unacceptable. The idea that someone is told, or it's heavily implied, that if you do not voluntarily commit yourself that you will face these consequences is, it's not voluntary at that point. It is coerced. And I don't know what sort of implications this has for state statistics or whatever. I mean, I don't know if the commitment rates are reported, but if they are you could have some state officials say, “Well, you know, when people get picked up in X percentage of cases, they commit themselves voluntarily.”
And so that implies that people get in there and they really realize that they need help and the system's really helping them, and they recognize that and want the help. But if you're threatening to take away their rights, that is not voluntary, that is fundamentally coercive. And to call it voluntary is horrifying, and to actively punish people for advocating for themselves, which is what, if somebody says, “No, I am not gonna voluntarily commit myself.” They are advocating for themselves. And to take that away, and to threaten people with long term consequences is absolutely unacceptable. That is not the product of a bunch of overwhelmed people, you know, they're responding to a system that's already in place and they don't know what to do and they can't reform the system so they slap a bandaid on there. This is something that could be fixed with a stroke of a pen at the legislative level, and it is wildly unacceptable. And the fact that, I don't know, it pisses me off so much.
It is not voluntary at that point, it is fundamentally coercive and needs to be different, and could be different, and it's bullshit.
Jesse: Yeah, whether it's a systemic flaw, or an intentional design, the end result is an extraordinary amount of coercion that can have traumatic impacts on the person experiencing it. I do think Brynne raises a good point though. This choice, voluntary or involuntary, can be incredibly important to the person being pushed through the system.
But the reality of these situations often results in people not feeling like a choice was actually given.
Jim: And that, I don't know, that could be solved.
Jesse: Okay, so whether someone signs themself in voluntarily, or they are involuntarily sent to a facility by a 302, what happens next? What is the next step in that process?
Brynne Madway: So once that process begins and you've been signed in, and you're in the psychiatric unit of that community hospital, they're supposed to formulate an individual treatment plan for you. And that might include medication, it might include therapy, you know, I think the list of what it could include goes on and on. But the statute's clear that it's supposed to be an individualized treatment plan for you.
And if you're there voluntarily there's no end date, right? So you'll be there until you're ready to go home. If you're there involuntarily on a 302 it's five days, so they get 120 hours, but there's ways they can extend that process further. And if the hospital on day three starts to think five days isn't enough, we need additional time, that's what I alluded to with a 303.
So the Mental Health Procedures Act is pretty well organized, I think, for people if they wanna understand their rights. And so 303 comes after 302, so it's the next level and it's a 20 day commitment, and that's the point at which a hearing is held. And so for that, the hospital would file a paper with the court, the pleadings, to initiate it, and the court is supposed to appoint counsel for the person in the hospital. And that counsel should contact their client and a hearing would be held, and the person would have the right to examine the doctor and introduce testimony into the record about why they should or shouldn't be in the hospital. At that point, the judge or mental health hearing officer is then supposed to write findings of fact and a conclusion to explain why this occurred. And I think that under precedent it’s a role the courts are supposed to take seriously because they recognize that this is a deprivation of people's civil liberties to force medical treatment.
And what's important to know is that after that 20 day period expires, the hospital has, if they wanna keep you, they have to continue to supply the court with evidence. So after a 303 we get to a 304, and that's gonna be 90 days. And again, there has to be a hearing held, they have to justify the need to keep you in the hospital and keep you out of the community.
After 304 there's what's called a 305, and that's 180 days. And after that, usually it'll be increasing 180 day commitments. But again, there's an attorney representing the person and there should be a hearing, finding facts that justify the need for someone not to be in the community.
Jesse: Okay, so a 302 is up to five days, a 303 is up to 20 days, a 304 is up to 90 days, and a 305 is up to 180 days. At the initiation of each step past the 302 the person should have a right to a hearing. But even if they do request a hearing, while they wait for things to happen they're still being detained in a psychiatric facility. So my next question for Brynne was, what rights does a person have in that facility?
Brynne Madway: So, I'm glad you asked that question because people have a lot of rights and I think it's very important for folks to know these. So they're laid out very clearly in the administrative code that I was talking about. Some of the rights I wanna focus on though, because I think they're important, the first is you have the right to refuse medication.
Now if you're a danger to yourself or others, there's a way to override that, right? But it is very specific and it requires things like the doctor getting a second opinion from another doctor to make sure that medication is really needed. And so I wanna highlight that because I know that can be an issue that a lot of folks with lived experience have, and so it's important to know you have that right.
You also have the right to practice your faith, which is important. You have the right to advocacy services, whether that's through a social worker. I can say at the state hospitals, there are external advocates who the consumers can call and help file grievances, so you have the right to file a grievance about your treatment. You have the right to communicate with other people, so that usually includes the right to send and receive correspondence, it would include the right to use the telephone. Folks are supposed to have the right to receive visitors.
You know, another important thing I think can be dietary rights, places should be respecting folks' dietary needs. If someone needs to keep a kosher diet, or a halal diet. So again, even though you're in treatment involuntarily, you still have rights.
Jesse: I believe one of the findings that is consistent throughout the United States is that there has to be no less restrictive alternative before you can authorize the civil commitment process. Are you aware of what alternatives are evaluated in this process when determining whether or not someone needs to be held in a facility?
Brynne Madway: I'm not, I know Pennsylvania has authorized Assisted Outpatient Treatment, and the troubling thing in Pennsylvania I'll say is, Assisted Outpatient TreatmentI think is a bit of a euphemism. Because it's still court ordered and it was traditionally used as a step down for people coming out of inpatient hospitalization. The standard was updated though in 2018, and at that point it allowed for forced treatment before hospitalization if there was clear and convincing evidence the person would benefit from it and they were unlikely to be safe in the community at the time the counties didn't implement this because of funding, and of course forced treatment isn't preferable. You know, there's a lack of funding for community based mental health services, which is creating problems in individuals accessing supports to remain well and stay in the community, and forced treatment re-traumatizes people, and then it makes them less likely to seek support.
But I think that before we get to the point where we're talking about mandated treatment there are community options. So the counties in Pennsylvania should have mental health offices. I think folks can reach out to those and look for support before there's a crisis and when they're wanting help and I think that's so important, right? Because as we were just saying, forced treatment re-traumatizes people.
Jesse: So at this point in the process, whether it's a 302, a 303, a 304, a 305, whichever it is, this person has been detained in one or more facilities for a sustained period of time. Then at some point they are sent back into the community, but at that point they have been out of the community for a significant period of time. And that could have all started with police officers involuntarily forcing that person out of their home. So my next question for Brynne was at that point, when the person is finally released, What happens then?
Brynne Madway: So I think that's a great question and I think it's tough, and I think at that point prior to discharge the state hospitals, or the community hospitals, should be working on plans for someone to be able to reintegrate into the community. And so that might consist of a ton of different things. I think it should be individual because these are not situations where one size fits all but I think certainly it might include helping the person to work with their county's mental health office to find treatment options.
For some folks it might be going into an LTSR, which is a long term structured residence. There's also CRRs, which are less restrictive, but still essentially group homes. I think it could include working with friends, family, and support. There's a variety of different services I think that can be set up then to help someone go back into the community, and I think it's really crucial that things be looked at holistically and individually.
Jesse: Those are pretty much all of my questions, is there anything I haven't asked about which you think is important to know about the civil commitment process or mental health rights in Pennsylvania?
Brynne Madway: I think the biggest thing, and I'll stress this, is that it's important for folks to call and ask for assistance when they need it. During this process they should have the right to use a telephone and they should call DRP’s intake line if they have questions. And I know I've said that a few times but I stress it because we're here to help and we can give folks additional information. And so for example, our number is posted by all of the phones at the state hospitals so that consumers can call us and leave a message.
And again, I think if I was going to leave parting words, it would be to know your rights and if you're worried about your rights to call and seek help during the process.
Jesse: My last commitment was in Massachusetts, not Pennsylvania, but it began by me admitting myself to a hospital for medical concerns, severe electrolyte imbalance.
A couple of days into that a psychiatrist walks into my room and holds up two forms, a voluntary commitment and an involuntary. He then gives me an ultimatum, either I sign the voluntary or he signs the involuntary. And I will give this psychiatrist the benefit of the doubt and assume that he actually believed I needed to be inpatient, not on a medical floor where I had admitted myself, but that he believed there was some form of imminent danger and that I needed to be inpatient on his psych ward immediately.
But to approach the situation like that? To walk into a hospital room, hold up two forms, and with almost no conversation demand that I make a decision. Who does that help?
I signed the voluntary only because I was frightened of the involuntary.
Everyone should be given a choice, an actual choice, and now after that my choice is that I will never agree to be voluntary again.
Jim: Yeah, I'm sorry, that's awful. That you experienced it. And then it happens all the time.
Jesse: I think the reason why I'm talking about this now is because of this basic idea of respect, of empathy. I think Brynne highlights this repeatedly that this process can bring a serious risk of trauma for the person going through it. So there needs to be every effort to try and understand that person's needs and do everything possible to treat that person with dignity.
Jim: Just if, if this ends up getting in, I just want to just point out to any listeners that Jesse had a wide eye look of wonder in his face as he said that. And he waved both his arms over his head in, again, childlike wonder. So I just wanna paint that picture for everyone.
Jesse: Okay, so next time, On Committable.
Jim: Yeah.
Jesse: We'll be looking at mental health laws in Alabama.
Jim: Yeah!
Jesse: Committable is produced by Jim McQuaid, Michelle Stockman and me, Jesse Mangan. All music is from the Song Reasonable by Christopher G. Brown.