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.