Jesse: Jim, so I really need to limit my time on social media because I keep getting into these conversations with people who are advocating for making it easier to involuntarily hospitalize someone and I just don't understand what I'm supposed to do with that.
Jim: I don't know the conversations that you've had but I imagine that they go something like this. Um, you know, if you try to talk about process, or institutions or, you know, all the things that we’ve talked about, their response, I would predict comes down to, what if the person might kill themself? And that's kind of the end of the response.
Jesse: Yeah, that concern definitely gets brought up and there is often an assumption that inpatient detention is a proven method of preserving life, which is not necessarily true. But the more frequent concerns that I hear expressed are from family members who are concerned that their loved one might end up in jail or become unhoused.
Jim: I mean, I can't imagine, so my son, if my son was unhoused I would just want him desperately to be safe and not outside in the cold and the weather and things. But we make our own choices though. I also can't comprehend, you know, smoking but we don't institutionalize people for that and that kills people all the time.
Jesse: I think you're touching on one of the key sources of conflict in these conversations. The assumption that clinicians and family members can reliably determine when someone's resistance to intervention should be discounted as having stemmed from a disorder. Because any action taken that is intended to treat that disorder, or control that person's disordered behavior can, from this perspective, be justified as necessary treatment. While from my perspective, having gone through forced hospitalizations, it felt like I was being punished because the visibility of my suffering made other people uncomfortable.
Jim: Whether or not something is a punishment or not, it's just a question of the intention of the person, you know, inflicting the consequence, right? So either way, the suffering is the same. So whether or not they're intending this as a punishment or not. For all intents and purposes, it's the same thing, right? So even if you don't call it a punishment, the experience of the person is no different than if a new punishment was being put in place, right?
Jesse: Right, and that dynamic of the intent behind the systems that are put in place versus the practical experience of the person being pushed through those systems is something that we're going to be talking about on this episode because what podcast is this?
Jim: This is Committable.
Jesse: Perfect. Now, let's talk about New Jersey.
(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 producer Jim McQuaid.
Jim: See, you say it so fast and stuff, and you could redo it later, and you're like, blah, blah, blah, blah, here's to me! And then when people, the audience hears it, they hear. I'm Jesse Mangan and it's all sultry and whatever.
Jesse: (laughter)
Jim: I'm Jim McQuaid, thanks Jesse, it's great to see you today.
Jesse: It's great to see you too, Jim.
Jim: People don't know all the secret wizard tricks you have that make you sound good.
Jesse: So much time spent on editing, way too much time. And it's speaking of a process that should be way more mindful of people's time, in this episode we are going to be talking about mental health laws in New Jersey. Particularly a recent change in New Jersey which took the 72 hour hold and extended it to allow for people to be detained for up to 144 hours. And to learn more about this change in the law, I spoke with Ami Kachalia.
Ami Kachalia: Hi, I'm Ami Kachalia. I am a campaign strategist at the ACLU of New Jersey. Our focus is on expanding and protecting the civil rights and civil liberties of all people around the state of New Jersey and specifically, my work tends to focus on drug policy and immigrants rights. And in the past, we as an organization have also done a fair bit of work on issues relating to involuntary commitment.
Jesse: So there was recently a law passed in New Jersey that expanded a section of the commitment process. Can you talk about what this bill does?
Ami Kachalia: Sure, so there was a piece of legislation introduced earlier this year in the spring that like you said, expands a specific section of the law around involuntary commitment, and that is the amount of time a person can be held within a hospital on a temporary hold. New Jersey had a law in place that allowed for people to be held for 72 hours pending their admittance to an inpatient psychiatric facility, and what this law does is allow hospitals to hold people for double that time, for 144 hours.
Jesse: What was the stated purpose? What was the problem that they were trying to solve by expanding this?
Ami Kachalia: There were some anecdotal accounts from one or two hospitals about their difficulty in placing people within inpatient beds within that 72 hour period. And so this law came out of those concerns. What I will say from the advocate perspective and from those who've been watching it, the underlying concern we have is that we don't truly know what the scope of the issue is because it is based on accounts from a couple of hospitals and a question we have is how large an issue is this? Is it regional in nature? Are there actually other issues at play? And so there's a stated problem here but really not sufficient data on the scope of that issue.
Jesse: So I was, uh, I was reading up on the New Jersey law trying to figure out how it works, and it seems like there's a screening service. So every community has this sort of screening service, and you can have someone brought to a screening service. They can go there voluntarily, they can be brought there by law enforcement, they can be brought there by a family member. From that screening service, some sort of designated mental health professional can authorize The next step, which is like you're held somewhere for 24 hours and a psychiatrist has to sign off on you being held longer. So what we're talking about when we talk about the 72 hours is a point where someone is being held, it is believed that the place they're being held isn't appropriate for giving them what they need and they need to go somewhere else, but they can't find somewhere else to send them. So instead of focusing on finding a way to give that person what they need where they are, they want to keep them in the place which they've designated is not appropriate longer. I'm struggling to understand how that makes sense.
Ami Kachalia: I think you're struggling to understand how that makes sense because It doesn't seem like it truly addresses the problem that's being brought up here, right? Because you're right what this would essentially do is hold people in places that are not considered therapeutic settings for double the amount of time. So typically what happens here in New Jersey, like you said, is there's this 24 hour period. Someone gets screened, a temporary court order is applied for, and in that time period, a person can be held for an additional 72 hours. When people are held in that time period, additional 72 hour period, it is not necessarily that they're getting the mental health services that they may need, right? Oftentimes when people are in emergency rooms, they really just serve as waiting rooms. People might be restrained, they might be sedated, but they're unlikely to be getting the care they need because those are not settings set up to provide people with the care that they need.
And so what this bill does is it actually doubles that amount of time where people are in these settings where they're not getting care. And we know that can cause additional trauma, right? Because someone's already having what is a negative experience with the healthcare system in that moment. They're involuntarily being committed. And then on top of that, they would be held for longer. If the issue here is that people are not getting access to the care they need in a timely fashion our work should really be around reducing delays to accessing care. And more importantly, also in making sure that we have robust mental health services outside within the community. because people shouldn't access mental health care services just in moments of emergency, they should always have access to them when they need them.
Jesse: So this law extends the duration of psychiatric holds from 72 hours to now, up to 144 hours. But as it currently exists, that change is only supposed to be in place for two years and during that time the bill requires that information about the process be collected and studied.
But the primary stated reason for that extension seems to have been that there are not enough available beds in psychiatric facilities. So, I asked Ami, does this new law provide any way to increase the number of beds in psychiatric facilities?
Ami Kachalia: There is a section of this law that calls on the Department of Health to temporarily approve additional inpatient beds if psychiatric facilities can show that, you know, retrospectively there were issues with getting people placed in beds. And so this sort of circumvents the usual process of approving more beds to do it on a shorter time frame, but also on a temporary timeframe, because they can get approval for these beds for up to 90 days at a time. And so theoretically that could alleviate some of the issues with there not being enough beds in place. But again, like you said, the other half of this bill, which really just delays access to care and holds people for longer presents very real other concerns because I think you also run the risk of normalizing this as a system for New Jersey. You know, this bill sunsets after 24 months, which means we have two years really to put in place changes to our mental health care system so that this change, which, you know, like I said, advocates aren't fully sure that it was truly necessary, but this change is not necessary going forward. And I think that it's important then that in that interim time period we're spending time, not only on understanding what are the gaps within the involuntary commitment space, within the voluntary commitment space, but also just what are the gaps in community supports for people? Because at the end of the day, if we don't invest across the board in improving the system, we're not really going to tackle this issue, we're just punting it down the road.
Jesse: To clarify, there's nothing that inherently requires the extension of the 72 hours in order to, uh, increase the bed capacity, or increase the application process for that, right? Those two things could exist separately?
Ami Kachalia: They can exist completely separately. So, you know, I think in reviewing this legislation and as it was evolving, there were two things that stood out as possible benefits in this bill, right? One is that study that is taking place in all of that data collection, and our hope is really that that data collection and analysis could happen before any change to the involuntary commitment law took place so that, you know, we were creating evidence based policy that was founded upon sound research, and that was in the best interest of patients. And then the second part of this, of course, is if there's a need for more beds than addressing the bed issue. And so the extension of this temporary hold period sort of exists outside both of those needs and it doesn't seem as though it truly addresses the concern that has been brought up by a couple of hospitals.
Jesse: So, let's take a step back for a moment and go over this process. So a person has been evaluated by a screener. That screener signs a screening certificate, which authorizes a 24 hour involuntary detention. Within that 24 hours, the person has to be evaluated by a psychiatrist, which doesn't have to happen in person, it can be remote, and that psychiatrist can sign a clinical certificate. That clinical certificate essentially starts the commitment process and once that process has begun, the facility where the person is being detained has 72 hours to find an available bed in some sort of psychiatric facility. If no bed is found within 72 hours, the facility where the person is being detained can initiate a process that allows them to keep that person for an additional 24 hours. If no available bed is found within that 24 hours, the facility can seek another 24 hours and they can then repeat that process once more, allowing for up to 144 hours of detention
Jim: Plus there’s 24 hours at the beginning, even before all of this, right?
Jesse: Right.
Jim: The entire law focuses on the needs of the hospitals and completely ignores the needs of the person who's experiencing all this. I guess maybe there are little aspects of it that supposedly protect the person, you know, that series of certificates and things, but that's really just gonna become a piece of paperwork that the institutions fill out, it's not protect anyone, so it just shows whose needs are prioritized here.
Jesse: Yeah, and I think you're getting to an essential question with any mental health law, which is what protections are in place for the person experiencing this. And to learn more about those rights and those protections, I spoke with Bren Pramanik.
Bren Pramanik: My name is Bren Pramanik, I use they/them pronouns and I am the Managing Attorney of the Institutional Rights Team at Disability Rights New Jersey. Disability Rights New Jersey is New Jersey's designated protection and advocacy organization, so we monitor institutional settings like psychiatric hospitals, we investigate, uh, allegations of abuse and neglect, and we also provide legal assistance to individuals with disabilities throughout the state of New Jersey.
Jesse: Generally speaking, the commitment process can be broken into three different sections. An initial detention for evaluation, some form of psychiatric hold, and then prolonged detention in a psychiatric facility. In New Jersey, what options or what rights does a person have during the initial detention for evaluation phase of the commitment process?
Bren Pramanik: I do want to also provide a caveat just at the beginning that I'm going to comment on how the process really is supposed to operate. Obviously every situation is different, so I'm not going to provide legal advice for a specific situation, but rather just general information about an individual's rights throughout this process and really how the process is supposed to work. But if you do have questions about any specific circumstances, um, you should definitely speak with a lawyer about your situation. So, if someone is involuntarily held past those first 72 hours, they must be re-evaluated by a psychiatrist at least once every 24 hours. And again, that doesn't necessarily mean that the re-evaluation by a psychiatrist takes place in person, it can also be telehealth as well. So within the 144 hours, within the completion of that first screening certificate, so three things must be completed. So first, the individual must be admitted to an outpatient treatment provider, a short term care facility, a psychiatric facility, or a special psychiatric hospital. And then second, a psychiatrist at the provider must complete a clinical certificate. So this is something different than the screening certificate and again, typically the clinical certificate should be completed by a different psychiatrist than was the person that completed the screening certificate. And then lastly, the staff at the provider agency should begin court proceedings for involuntary commitment. So that's really again what kind of triggers the right to have an attorney during this process.
So the provider has to file both the screening certificate and the clinical certificate with the court and the court will issue a temporary court order for the involuntary commitment if it has probable cause to believe that the individual is in need of this involuntary treatment. And if the psychiatric assessment indicated that an individual does not need involuntary commitment, then the individual should be referred, um, to the least restrictive treatment appropriate. And I just, you know, I do want to be clear that under both state and federal law, individuals with disabilities and in this situation, individuals with mental health disabilities, are entitled to appropriate treatment in the least restrictive environment possible. So it doesn't mean that somebody can't be involuntarily committed if it's necessary, but involuntary commitment really should be the means of last resort considering it's such a deprivation of liberty and an individual can be court ordered to attend involuntary outpatient, or involuntary inpatient treatment.
So there's that initial court order after the screening certificate and the clinical certificate are filed and a court hearing should be scheduled within 20 days of the initial commitment. And when an individual is initially, uh, is involuntarily committed, again, they have a right to an attorney at that court hearing. In New Jersey, the Office of the Public Defender, their Division of Mental Health Advocacy, are the attorneys that are typically assigned to these cases. The Public Defender's Office, they represent individuals in 15 of the state's 21 counties. So in nearly every county, somebody is entitled to a public defender. They are still also entitled to an attorney in those remaining six counties, it's just not an attorney through the Public Defender's Office. And then at the court hearing, the judge must find that the individual continues to need involuntary treatment by a clear and convincing evidence standard. And this is a legal standard which requires that the judge find the evidence presented produces a firm belief that the need, that that person is in need of the involuntary treatment. And so then, that's kind of really that sort of middle stage, and then it kind of moves on to a continued involuntary treatment stage.
Jesse: So there is a screening certificate, that's 24 hours, a clinical certificate, that's the up to 144 hours, and if you are involuntarily placed in a psych facility before the end of that 144 hour window, then you should get a hearing within 20 days. And during every step of this process you have the right to refuse treatment, including medication. If the facility wants to try and force medication, then they have to go through an additional process, which I believe involves an additional hearing in order to get approval for forced medication. So those are some of the basic due process protections that a person is supposed to have during this process.
But towards the end of the interview, there was something else that Bren mentioned which kind of caught me off guard, and that is Conditional Extension Pending Placement, or CEPP. So what is C E P P?
Bren Pramanik: New Jersey does also have this kind of unique status for people that have been involuntarily committed, so it is called Conditional Extension Pending Placement. Often it's referred to as CEPP status in New Jersey. And so this is when a court determines that an individual who was previously involuntarily committed, no longer meets that involuntary commitment status, that involuntary commitment standard, but they cannot be discharged due to the unavailability of an appropriate placement in the community. So this was created by a case called In re S.L, in New Jersey in 1983. So that is what really established the existence of the CEPP status and it's remained the law since 1983. So we're going on about 40 years now where, again, an individual no longer meets that commitment standard but they still remain at that hospital, um, because the treatment team, the hospital hasn't been able to find what they deem as an appropriate placement for them in the community.
This is something that I don't think there is as much of an awareness of, but it is kind of this oddity within New Jersey that I think is important for people to know about because, so say, you know, I'm at subsequent review hearings about my involuntary commitment, and the judge determines that I no longer meet that standard, that I'm no longer a danger to myself or others. But that doesn't necessarily mean that I'm going to immediately be discharged. Again, the treatment team determines what they think is the appropriate discharge plan for me, and if that discharge isn't possible in the community, then I can potentially remain in the hospital for months, weeks, years, potentially, waiting for that appropriate placement.
Jesse: We heard about a similar situation in Virginia, they have something called the Extraordinary Barriers List, where approximately 200 people are being kept in facilities, even though they've been cleared for discharge, but there's no placement. One of the things I continue to sort of struggle to reconcile is how that sort of process could be reconciled with federal decisions that have said, you cannot be detained past the point it's necessary. Is there some sort of legal explanation for how to reconcile these sorts of federal declarations with this state specific process?
Bren Pramanik: That's a great question and I think it is something that I think is surprising to a lot of people, even kind of in this mental health world, that people that are involved in these different systems, that this status does exist. And I think it is natural for people to question why does it exist? Like you're saying, given federal laws, federal statutes, it was something that was created by the New Jersey Supreme Court and it's something that since 1983, it has not been, there hasn't been a situation in which, um, it has been found to be illegal or against people's rights. So it is something that still remains law in New Jersey and does still happen. And currently in New Jersey a little around, I believe about 25 percent of the population of the state psychiatric hospitals are people that are on the CEPP status. And again, you know, kind of like you're saying the problem with this is obviously that, you know, there's got to be some kind of breakdown in the system, right? Where you have people who no longer meet that involuntary commitment standard, but there is not an appropriate place for them in the community. And I think that this is kind of similar to what we were talking about when it relates to the kind of holding pattern of those first 144 hours, where if you need some kind of treatment, appropriate treatment, but you're just kind of waiting, what benefit does that really serve anybody in the process? And so it is something that still remains law on the books in New Jersey and obviously affects a significant portion of the hospital populations.
Jim: So we have people who are, you know, supposedly have civil rights, who even the system itself is saying that these people are, uh, we shouldn't be holding them and yet they're being held. I wonder to what degree that 25 percent of people is being given the option of leaving or staying until a “more appropriate” placement is available versus the degree to which they're being left out of those conversations. So is it the treatment team that's making that decision? Or is the person saying, I am going to leave anyway because I'm an adult who can make decisions legally, and I'm gonna go.
Jesse: So I think a person on CEPP status might legally be an adult, but they can't just leave. Some of their rights are being restricted because the court has concluded that this person is in some way unlikely to survive on their own in the community. There are, however, supposed to be review hearings. I think the first hearing is supposed to happen within 60 days, and then subsequent hearings are supposed to happen every six months, but I don't know how meaningful the oversight provided by those reviews is. Because at this point in the process, after a judge has declared that you no longer meet criteria for a civil commitment, if the treatment team felt comfortable releasing you, then you would almost certainly just be discharged right then and there. So the very fact that someone is put on CEPP status strongly suggests that the facility argued against their immediate discharge, right? So if you think about it from the perspective of the person being detained, they may have gone through the screening certificate, and the clinical certificate, and the commitment hearing, and potentially months, or even years, of a civil commitment before somehow, despite having almost the entirety of this system stacked against them, that person and the attorney representing them are able to convince a judge that you, you no longer meet the standards. The court can no longer legally justify your continued commitment. Imagine that moment, after all of that, after you were legally declared unsafe to be free. A judge agrees with you. You don't meet criteria, but instead of being allowed to go back into the community, the court then declares that this facility, the one that doesn't want to let you go, that facility is still basically in charge of whether or not you're allowed to be free. And after an experience like that, why would you have any faith in the process?
Jim: And then there's no, there's no accountability. There's no recourse. There's no anything, the hospital can just do that and it’s fine I guess?
Jesse: So this is actually where Protection and Advocacy Organizations, like Disability Rights New Jersey, have an opportunity to step in. And sometime after we recorded that interview Bren contacted me and shared information about a lawsuit that Disability Rights New Jersey has filed against the state in relation to the CEPP process.
Jim: Wait, really?
Jesse: Yeah, really.
Jim: Wow.
Jesse: And in essence, at least as I understand it, one of the core arguments of this lawsuit is that if the state is going to detain people in this way, people with psychiatric disabilities who the court has stated don't meet the criteria for commitment but continue to be held because there are no appropriate community resources currently available. If the state is going to detain people in that way, for that reason, then the state has an obligation to make sure that the necessary community resources exist and are accessible. Because detention in a psychiatric facility is not a neutral event, it is not a guarantee of safety. A lot of harm can come from that detention. And to subject a person to that risk of harm without providing them with meaningful access to a safe and efficient discharge is, and these are my words not theirs, it's horrific and it needs to stop.
Jim: Yeah, that's horrible. How you doing?
Jesse: Covering these issues is always really rough for me, but learning about that lawsuit was genuinely uplifting. And I am really glad that there are people like Bren, and like Ami who are paying attention to these issues and speaking about them.
Jim: Yeah.
Jesse: And on that note, as we bring this episode to a close, I wanted to return to the interview with Ami Kachalia where I asked, is there anything else about these laws that is important to know?
Ami Kachalia: I think just one thing I wanted to mention is that another area of concern for us around this legislation are the racial justice implications of involuntary commitment in general. Part of the determination of whether or not someone is involuntarily committed is whether or not they're considered a danger to themselves or to other people, and research shows that there is bias that results in black and brown people more often than others being deemed a danger. And so it's really important that when we look at this legislation that on the face of it seems largely around mental health, largely around health care systems that we also recognize that there are very real racial disparities that could result of legislation like this that could harm communities that are already bearing the brunt of harsher enforcement and other carceral approaches in different civil systems and in criminal systems.
Jesse: And one of the things that I think is concerning about the New Jersey law, and this existed before this bill, which is a little bit different than a lot of other states, is it specifically says danger to self, others or property.
Ami Kachalia: Yes.
Jesse: And so I think about like a protest. If you have a protest and you think someone might damage property during a protest, a black or brown person who might be perceived as acting in a way that isn't culturally appropriate. Does this now justify, or reinforce bringing them into this process and keeping them there even longer?
Ami Kachalia: And those are exactly the kinds of questions that I think it's important to consider with legislation like this and really all legislation. You know, we have to be mindful of what is the impact of laws that we put in place and specifically on groups that are oftentimes experiencing racial disparities in other spaces as well.
Jesse: So Jim, any final thoughts on mental health laws in New Jersey?
Jim: I mean, this just doesn't address the actual issues that there are.
Jesse: Yeah, a law that allows for detaining someone for an additional 72 hours doesn't actually do anything to guarantee that the necessary resources are safe and accessible for the person being detained.
Jim: But, I mean, that's not surprising. It focuses on the issues that the institutions, which have power, are themselves facing, maybe, but we don't even know if they're actually facing them. We don't have the data for that. So it might not even be addressing something that the institutions are facing. But it's still going to impact in a very, very deep way the people being committed.
Jesse: And those are the people whose experiences should matter the most in this process.
Jim: I don't know, I think that we need a word that means shocking but not surprising and I don't know what that word would be but…
Jesse: What about Committable? Committable.
Jim: Committable, yes, which this is by the way.
Jesse: (laughter)
Jim: Committable.
Jesse: Perfect, no editing needed, just roll the music.
(outro music from Reasonable by Christopher G. Brown)
Jesse: Committable is produced by Jim McQuaid, Michelle Stockman, and me, Jesse Mangan. All music is from the song Reasonable by Christopher G. Brown.