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.