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.