Jesse: Jim, what is labeling theory?
Jim: So, labeling theory is a theory that comes out of criminology but, you know, it has certainly broader applications beyond that. But so labeling theory is a theory that argues once someone commits an act of what is within the theory referred to as primary deviance. So some kind of violation of social norms or the person is seen to have violated social norms. So it might be committing a crime, it might be acting weirdly, or breaking a rule at school. And the person receives a label. And you know, when I teach this, I talk about cheating in a class, so a person is labeled a cheater. And then that label, the argument is that the person is then more likely to engage in what's called secondary deviance, which is deviance that comes as a result of the label. And that process can occur in a couple different ways. So one, the person's actions or behaviors are going to be more closely scrutinized or interpreted in deviant ways. So imagine two kids, both of whom plagiarize on a paper. Well, the kid who hasn't been labeled, the teacher's going to read the paper and not even be looking for plagiarism. So they're not going to find it. Or if they find evidence of plagiarism, they might think to themselves, Oh, well, this is just a good kid who made a mistake, like they screwed up the citations or something. You know, I'm sure they did it unintentionally. But the kid who has been labeled a cheater the plagiarism is like, oh, clearly this kid is already a cheater. Clearly they are cheating and this is just more evidence of that. So then they get penalized again, whether or not it was unintentional or intentional doesn't matter, the action is being interpreted as cheating.
The other way that this kind of secondary deviance can occur is If the person internalizes the label. So there's this kind of external, other people are interpreting the labeled person's actions in terms of the label, but also the person can, and both can happen, they internalize it. I'm a cheater, I'm a bad kid, I'm a bad student, I'm not capable, I'm bad, whatever. It becomes this kind of internalized, self fulfilling prophecy where they just kind of act in accordance with the label itself. You know, I'm, I'm too stupid. Everyone expects me to be bad, so I'm going to do that. And so then they start to cheat more regularly.
I don't know if you expected this detailed of an answer. Like, I teach labeling theory pretty regularly. Like, I will go into it.
Jesse: This is actually way more interesting than I thought it would be.
Jim: Oh, okay.
Jesse: I can easily see how this would apply to people labeled with mental health conditions. But I was actually just trying to set up the intro where I would ask you about labeling theory and then say, and what would you label this podcast?
Jim: Oh!
Jesse: Right.
Jim: Committable!
Jesse: Awesome! And now let's label some mental health laws.
Jesse: This is Committable, a podcast about involuntary commitments. I'm Jesse Mangan, and I'm here with Committable producer Jim McQuaid.
Jim: Oh, I'm supposed to say something.
Jesse: Correct.
Jim: I'm Jim McQuaid.
Jesse: (laughter)
Jim: Well, okay, it's weird for you to say, like, “I'm here with Jim McQuaid”. Like, I've been announced. I agree with you that I am here.
Jesse: And I'm glad you're here, Jim, because for this episode, we are talking about mental health laws in Vermont. And to learn more about those laws I spoke with Karen Barber.
Karen Barber: So my name is Karen Barber and I am general counsel for the Vermont Department of Mental Health. So we have four assistant attorney generals assigned to our department who do the actual litigation involved with involuntary commitments and I am more just in house and the general counsel that oversees all of the legal work for the department.
Jesse: In Vermont, what is the mental health law called?
Karen Barber: Title 18. So it's Title 18 of the Vermont statutes is where you will find our civil commitment code.
Jesse: Most civil commitments are preceded by some form of involuntary detention. In Vermont, how does the involuntary detention process work?
Karen Barber: So, if you're coming in through the civil system, as opposed to the criminal system, I'll start there. So there's a couple different ways you could be brought to an ED, or you could show up to an ED, or someone could bring you to an ED, an Emergency Department. And what we call it is the EE process, the Emergency Exam process. So we have in Vermont, there's a system of community based providers called Designated Agencies and they are the people in the community that provide mental health services. DMH, Department of Mental Health, trains what we call the QMHPs, or Qualified Mental Health Providers. And so these are staff at the Designated Agency who are trained by DMH in Title 18. And they would come out to the hospital and do the first assessment of a person. So what they're looking at is, does the person meet the statutory criteria for involuntary hospitalization, which is basically a danger to self or others due to a mental illness.mSo if the screener says, yes, I think this person meets the criteria, they are allowed to be held. After that, they must be seen by a physician, or it could be an APRN, who does the same analysis, who has to decide, yes, they meet criteria. And if they do, then they continue to be held. If that person says, no, they don't meet criteria, then they must be released, or they can choose to be voluntary if they wish. And if at any point they say, look, we're willing to voluntarily accept services, they can't be held involuntarily.
If the physician says, yes, you meet criteria. That's what we call the First Cert. So there's the EE, the First Cert, first certification, then within 24 hours they must be seen by a psychiatrist. And a psychiatrist must do the same evaluation, do they meet the statutory criteria? So that's called the Second Cert, second certification. If the psychiatrist says yes, they meet criteria. Then they continue on that hold, and the Department of Mental Health has 72 hours to file what's known as an Application for Involuntary Treatment. And so that's basically what we're filing with the court to say, we believe this person needs to be involuntarily hospitalized. At that point, the judge must do a paper review. So look at the documentation and determine, yes, I agree that all of these things continue to support the fact that this person should be involuntarily held. At the same time, once we file that paperwork, Legal Aid, the Vermont Legal Aid Mental Health Law Project, gets notified and they are assigned counsel for this person. So the person, as soon as we file that, will have an attorney that can help represent their needs. They're also, as soon as they're involuntarily held, they're given a notice of patient rights, which basically talks about their rights as a patient. And in Vermont we also have Disability Rights Vermont is our mental health care ombudsman, and so they are also active. So on the piece of paper that the person gets is a phone number for Disability Rights Vermont, and they must assure that if they want to speak to someone, there's a way for them to do it. And then the person will wait in the Emergency Department until we find a bed.
In Vermont, we have seven designated hospitals. So those are hospitals with inpatient psychiatric units that have been designated by the Department of Mental Health to provide involuntary services. One of those is the Veterans Hospital, so those beds are obviously only available to veterans, but, so they would go to one of those hospitals. During this time, their court hearing would proceed. So Legal Aid generally asks for an independent psychiatric evaluation, so generally they have an independent psychiatrist evaluate the person to determine whether or not they think that the person actually does meet criteria.
Jesse: So in Vermont…
Jim: Sorry, I'm getting lost in the terminology here. So, is the person brought to the hospital and then the screener sees them, and then the hospital? Or then the physician? Or is it the screener goes to the person in the community and says they should be hospitalized and then they're brought to the hospital?
Jesse: Great questions. Let's take a step back.
Jim: Okay.
Jesse: So in Vermont, there are Designated Agencies, those are essentially locations within a community that offer a fairly wide range of mental health services.
Jim: Which is good.
Jesse: Those designated agencies have Qualified Mental Health Professionals, or QMHP, people that are approved by the Department of Mental Health to do what essentially amounts to risk assessments. So if a QMHP determines that the person being assessed meets the criteria for involuntary hospitalization, that person must then be examined by a physician. And if that physician also believes that this person meets the criteria for involuntary hospitalization, then that is what is called the first certification, or First Cert. And that initiates the next phase of the process, which is an evaluation by a psychiatrist that has to be completed within 24 hours of the first certification. That psychiatrist can then issue the second certification, or Second Cert, which will lead to that person being detained in a psychiatric facility for up to 72 hours.
Jim: Being committed, okay, got it.
Jesse: Far too often though, there can be a significant limbo period between the second certification and the person actually arriving at a facility where the 72 hour hold starts. And this limbo period can sometimes last several days. But once that second certification is signed by a psychiatrist and the person is in a facility, the facility has 72 hours, or three business days, to decide whether or not to initiate an Application for Involuntary Treatment, or AIT. And if an AIT is initiated, then the person being detained should automatically be appointed legal representation from Vermont Legal Aid. And to learn more about this part of the process, I spoke with Jack McCullough.
Jack McCullough: Okay, my name's Jack McCullough. I'm an attorney at Vermont Legal Aid and since 1994, I've been the director of our Mental Health Law Project. At the Mental Health Law Project, we have a contract with the state of Vermont to represent people in all kinds of involuntary mental health proceedings in Vermont from initial commitments, to applications in court to extend a commitment, to applications for involuntary medication. And our work extends not only to people who are in psychiatric hospitals, but also people who are in outpatient commitment and living in the community.
Jesse: At this point in the process, where someone has been brought to an ER where they are then Evaluated by a physician and a mental health screener. At that point in the process, do they have any options? Do they have the right to an attorney? Or anything like that at that point?
Jack McCullough: They do have certain rights, but they don't have an attorney appointed to represent them right then and there. One of the rights they do have, though, is a right to request a preliminary hearing. And these things all happen very quickly, but in Vermont, the statute provides that once you're admitted for an emergency exam you have five days to request a preliminary hearing. And then if you do request the hearing, that's held in the family division of the Superior Court, and the court's required to have that hearing within three working days. The preliminary hearing only happens if the person requests it, and the preliminary hearing is in front of a judge, and the judge has to determine if there's probable cause to believe that the person is a person who needed treatment. It's a very low standard, and it's unusual for us to go to those hearings and get the person out, but it certainly happens. But that's the small minority of cases. Once the application for involuntary treatment, or AIT, is filed, the court gets the application, they're supposed to schedule the hearing within 10 days, or 20 days if an independent psychiatric exam is requested.
Jesse: So at some point, someone is being brought to a facility where the 72 hour hold begins. Jack McCullough: Right.
Jesse: So once they reach that facility, what are their options? What are their rights? Do they have due process rights then?
Jack McCullough: The one right they have, as I said, is the right to request the preliminary hearing. And then they're basically waiting. During that 72 hours, the hospital is, uh, there are three things that could happen. The person could be discharged because after they've been there a couple of days, the hospital decides that person doesn't really need to be there. And the informal term for that in Vermont is that they're walked off papers. They're no longer being held involuntarily. Or, the person could be admitted as a voluntary patient, and again, that is the end of the involuntary process for now. Or, within the 72 hours, the state could file an Application for Involuntary Treatment. And that's an application filed in the Family Division of the Superior Court, and that's what starts the court process. And when that happens, my project is automatically appointed to represent the person.
Jesse: So, when a person is being detained for an Emergency Examination they can request a preliminary hearing. And that hearing is supposed to determine whether or not there is any probable cause for the person to be detained. But if at that hearing the judge decides that there is probable cause to detain you, and the facility where you're being detained submits an Application for Involuntary Treatment, then that begins the civil commitment process. So my next question for Jack was, when that process starts, what are the standards that are being looked at to demonstrate that a civil commitment is legally appropriate?
Jack McCullough: There are two elements to the standard. The first is that the state has to show that the person is, uh, the overall term is person in need of treatment and it contains two elements. One, the person has a mental illness. And in Vermont, mental illness is defined as a substantial disorder of thought, mood, perception, orientation, or memory that affects your judgment, behavior, ability to meet the ordinary demands of life, that kind of thing. And two, that as a result of the mental illness you're a danger to yourself or others. And there's some standards for what it takes to be a danger to yourself or others, but those are the two things that the state has the burden of proof for. And that's a matter of state law, but also it's a matter of federal constitutional law. In the case of O'Connor versus Donaldson, the United States Supreme Court held that if someone has a mental illness but is not a danger to anyone, then constitutionally they cannot be committed. And so one of the elements in every commitment case is that the person must be a danger to him or herself, or someone else.
Jesse: So one concept that comes up with commitments is the idea of least restrictive alternative. Is that a component in these hearings? Does the Department of Mental Health have to demonstrate that there is no less restrictive alternative?
Jack McCullough: Yes. Under Vermont statute the person is not allowed to be committed if a less restrictive alternative is available. And so that's one of the things that we challenge sometimes and sometimes we will get a witness, one of our psychiatrists to say that knowing what I know about this person, I would be willing to treat him on an outpatient basis rather than keeping him in the hospital. I just don't think he needs to be in the hospital. So yeah, another part of the process is that in our cases the state needs to prove, has a burden of proof at two points in time. One is at the time of admission. They need to show that the person is essentially in imminent danger at the time of admission. The other point is at the time of trial. They need to show that the person is either still a present danger, a person in need of treatment, or the person may be receiving adequate treatment, but if they're discharged from the hospital without further treatment they would likely become a danger in the near future. And so the state needs to prove both of those things.
Jesse: So, if at some point during a 72 hour hold the facility submits an Application for Involuntary Treatment, then you will automatically be appointed legal representation from Vermont Legal Aid. And you should get a civil commitment hearing within 10 days, but that 10 day period can extend to 20 days if you request an independent examination.
Jim: Oh, so I could be in the hospital for 20 days before I've had any sort of hearing or anything, reviewing my detention?
Jesse: Possibly, but you do have the option of asking for a preliminary hearing at the very beginning of this process. However, the standard for that hearing is probable cause, so it's a lower standard than will be required at the commitment hearing.
Jim: Okay, and that would be my first hearing of any kind?
Jesse: Yeah, the preliminary hearing is your first opportunity for a hearing. Your next opportunity is the commitment hearing. But at every point in this process you can request to be admitted as voluntary, and agreeing to be voluntary is generally associated with being released sooner. But if you are voluntary you don't get a civil commitment hearing.
Jim: Oh, okay, got it. That makes sense.
Jesse: And if you do make it to a civil commitment hearing, and at that hearing the judge decides that you do need to be detained for involuntary treatment, then you will be detained, inpatient, for up to 90 days. And if at the end of that 90 days the facility decides you need to be detained longer they can submit an application for continued treatment. Which can result in continued detention for up to a year. But everything we've discussed so far is in relation to the civil commitment process, there is also a criminal process.
So as we bring this episode to a close, I wanted to return to the interview with Karen Barber, where I asked, in Vermont, how does the criminal commitment process interact with the civil commitment process?
Karen Barber: So I think it's important to note in the beginning, Vermont does not have a forensic system of care, so we do not have a forensic facility. We have a civil mental health system that interacts with and overlaps with the criminal justice system, but there is no forensic system. It is a tension in the state of Vermont. So basically what happens is if there's a question of competency, or sanity a QMHP would come in but go to the court and do an initial evaluation of the person. What they're determining is, do they need to have that evaluation in a hospital? Or can they do it in a community? So essentially, do they meet hospitalization level of care or do they not? If the screener says yes, they should be on an inpatient order, then the court will order an inpatient order. If the screener says no, it should be on an outpatient, then we have a psychiatrist, a DMH psychiatrist, at our state hospital do a hospital level of care assessment to say, we know what the screener said, but we're going to determine, does this person actually need to be in the hospital? And again, where a big rub comes in is in Vermont, all hospitals are CMS certified and joint commission accredited. We cannot admit anyone if they don't meet clinical criteria, and that is sometimes difficult for people to understand because people can be dangerous for lots of reasons other than mental illness. People can be mentally ill and dangerous and not mentally ill enough that they need inpatient hospitalization. So there are certainly a lot of instances where our psychiatrist is saying, I'm sorry, but they don't meet criteria, they need an outpatient order. And so then they would go back to either jail or wherever they came from. If our treating psychiatrist agrees, yes, they need to be hospitalized then they will be admitted eventually. And then they will do, um, if it's competency and sanity, they'll have a competency evaluation first. If they're found competent, then we'll do sanity. If it's just sanity, they'll do sanity. So, then it's kind of a parallel process because there's a criminal court order and 90 day hospitalization order that commits them to us. After 90 days it switches over to the family courts and it again, the same Title 18, do they meet criteria? So the person will remain in the hospital As long as they clinically need to be in the hospital and you know, we try to point out to people that's different, you could be incompetent and not need to be in a hospital, you could be insane and not need to be in a hospital and a lot of other states those folks will go to a forensic facility where they would continue to be held in a secure setting, even if they didn't meet strict hospital criteria and receive services there. In Vermont, because we don't have a forensic facility, either they're in the hospital because they need to be there clinically or they're, either they go back to corrections, or they go to maybe our locked residential, or they go back out into the community. So again, they're parallel, but they don't fit together nicely, as nice as some people would like.
Jesse: Can you briefly define competency and sanity in this context?
Karen Barber: Competency is a fluid term, or is a fluid state. So you can be not competent one day, but competent another day. And again, it's important to know these are not necessarily related to mental illness, right? So basically it's, are you able to engage in your own defense? Can you understand the court system? Can you actively engage with your attorney in a meaningful way? Do you understand what's happening? And you could not be able to do that for a variety of reasons. It could be your mental illness. It could be that you had a TBI. It could be that you have dementia. It could be that, you know, substance abuse. It could be developmental or intellectual disabilities. And you can change, you know, you could be not competent one day but competent another day. It's really a fluid concept depending on what is making you incompetent in the first instance. So, you know, if it's substance abuse ideally, once you come off substances, if it's mental illness, you know, we don't have a restoration of competency program in Vermont like some other states do, so we're not actively working towards restoring someone's competency, but sometimes it is an effect of mental health treatment.
Sanity is a point in time assessment and it doesn't change. It is at the time you committed the crime, basically, did you understand what you were doing? And so you could be competent, be found competent to stand trial, but still be found insane at the time of the offense. So basically at the time you can't be held culpable for your actions because you were incapable of understanding what you were doing was wrong. So that doesn't change. But the competency piece does and so the court system can debate both of those because you can have a couple different experts debating on whether or not a person's competent. The judge makes the final determination about whether or not someone's competent, so you could hear varying experts and then the judge decides. But sanity is a question for the jury. So really you’ll have, again, you'll probably have dueling experts presenting evidence to the jury about whether or not the person was sane at the time of the offense. You can't get to trial though until you're competent. So, competency gets you kind of in the door and then sanity is a defense, right? So you're not guilty by reason of insanity. Some States have guilty but insane, so where you admit that maybe you've committed a crime but you're saying, look, I was insane at that time. In Vermont, it's just not guilty by reason of insanity.
Jesse: Okay, so most states have one or more forensic psychiatric facilities specifically designated as the place that someone goes to when they are within the criminal system and there is a question of capacity, competency, or dangerousness related to a mental health condition. But Vermont does not have a forensic facility. They don't really have a separate criminal commitment system. Which means that if someone is in jail or prison they have to meet the civil commitment criteria in order to be admitted. And I can appreciate how this sort of forced interaction between different systems could create a lot of problems but it often seems like the argument for why the criminal commitment system needs to be separate is the need for some sort of increased security measures. But being pushed into the criminal system doesn't require any allegation that the person is dangerous. Being pushed into the civil commitment system, however, does require an allegation that there is some form of dangerousness present. So why wouldn't the civil commitment system be equipped to receive people who are alleged to have committed a crime?
Jim: I mean, like, if I steal a product from a store, I'm a shoplifter, that's not a violent crime. Or I commit some kind of property crime, or something, or I pass a bad check, or whatever, that doesn't imply violence. So, if there's a mental illness component there, why would I need to have a separate process, a separate system in place? Also, I mean, the criminal justice system, too, is dealing with a question of what a person has done. Whereas the mental health system has this predictive role of what we're afraid the person might do, right?
Jesse: Right.
Jim: It's almost as if we don't make these rules or develop these systems in response to what makes the most sense, we just sort of feel like, get away, and then we make rules to keep them away.
Jesse: It does often feel that way.
Jim: We're super fun. People are great.
Jesse: And speaking of things that are super fun, next time on Committable, we'll be talking about mental health laws in Indiana.
Jim: That means Indiana is going to be really good, right?
Jesse: Uh, well…
Jim: Wonderful.
Jesse: (laughter)
Jesse: Committable is produced by Jim McQuaid. Michelle Stockman and me, Jesse Mangan. All music is from the song Reasonable by Christopher G. Brown.