Bonus: Your Consent is Not Required Transcript

Jesse: This is Committable, a podcast about involuntary commitments. I'm Jesse Mangan, and this episode is going to be a bit different. For this episode I interviewed Rob Wipond about his book Your Consent is Not Required: The Rise in Psychiatric Detentions, Forced Treatment and Abusive Guardianships. This book is a fantastic resource for anyone who wants to better understand these systems, it has concrete examples from court cases, firsthand accounts, federal investigations, lived experience, and structural analysis. Rob also brings a sense of insight from his own experiences after watching his father get pulled into one of these systems. And that's where our interview begins, and so, this is Rob Wipond.

Rob Wipond: So my name's Rob Wipond, I'm an investigative journalist and I've been researching and writing about civil rights in the mental health system for about 20 some years. And I now have a new book out called Your Consent is Not Required: The Rise in Psychiatric Detentions, Forced Treatment and Abusive Guardianships..

Jesse: So, in your book you described the story of your father, and you have this personal experience with someone you care about entering the system in this one way. Where they're asking a medical professional for help and that sort of gets them sucked into the system. As you began researching more into these systems, what other entry points did you discover and what other access points are there into systems of psychiatric detention? 

Rob Wipond: There's a lot of funnels into the system, that's what I call them. And it's a big one, and it should be noted that going into the system voluntarily has become one of the predominant ways that people are ending up locked up against their will. It's very counterintuitive in some ways because there's this narrative out there that, oh, it's only if you lack insight and don't realize that you need help, that's when we forcibly treat you. But in fact, lots of people fully recognize that they're struggling in some way and they reach out for help, and of course more and more people do this, and nowadays your odds of getting locked up are actually pretty high. When I say high, of course I don't know an actual number on that, but I hear this story of a lot, of people reaching out for help and getting locked up. So that's one of the biggest ones. 

The other one we've talked about before, there’s increasing media attention around it now, is calling out for help through the 988 line, the National Suicide Prevention Lifeline or other hotlines. Not all of them, but many of them do, occasionally trace calls at a disturbingly high rate and people can get taken by police to psychiatric hospitals against their will through that avenue. 

Jesse: I was sort of staggered by the amount of funnels you covered in the book. You had punitive measures where someone is protesting, or someone is a whistleblower, and it becomes a political mechanism to involuntarily hospitalize them. You had systems where there were body brokers, if I'm getting this correctly, there are body brokers that go and find people to bring into a facility?

Rob Wipond: Yeah, and that's a really important one too, because, so we have really mass scale fraud going on. There was a heyday of this back in the 1980s, and there was an attempt to get it under control. Laws were passed, lawsuits were filed, governments got involved and a lot of companies shut down. Massive, like hundreds of psychiatric hospitals got shut down in the midst of these massive like hundred million dollar, billion dollar, sorts of lawsuits going on against fraudulent use of mental health laws simply to incarcerate people and bilk insurance plans. It looks like that's coming back. So it becomes a major funnel into the system, is that there's just corrupt medical professionals and people on the street working for these medical professionals, finding vulnerable people and bringing them into hospitals. Or even in some cases we've seen just advertisements like, come in for our free mental health assessment and people show up, they do a little mental health assessment and they actually get locked up.

And what's really important about this is clearly we would say, well, those are cases of extreme abuse. And they are, but the reality is it's very difficult to tell which ones those are from “legitimate” psychiatric detentions. And this is something that I discussed with the US Department of Justice, who are prosecuting some of these cases, and they acknowledged as well that even for them, even for their auditors, even for their attorneys, sometimes they're studying a hospital and they're finding it hard to figure out whether or not this hospital is engaged in systemic abuse or simply engaged in normal responsible psychiatric detentions. Because they look for all intents and purposes the same. People get restrained. They get drugged until they're barely functional. They, you know, are abused in lots of ways, what we would call abuse. And at the same time, that's considered acceptable if you're trying to “cure” a person. So it's a major problem. 

Jesse: I think it's worth mentioning that when you talk about corrupt medical professionals, you spent a great deal of time in your book actually listing specific lawsuits that have occurred. You've spoken to, ah, an interagency task force on Medicare fraud. And this medical fraud, and this corruption, is well documented and it even occurs in places, or we see other access points in places like the military. The military seems to commonly use this threat of psychiatric hospitalization as a way of managing, I guess, dissent or managing people resisting or speaking out?

Rob Wipond: Yeah. One of the things that happened to me while I was researching this book is I was repeatedly shocked when I kind of got out of the typical people you might interview for something about psychiatric detentions, like psychiatrists and mental health agencies, and I ventured further afield to talk about psychiatric detentions. And in this case, so I started getting a hint that this was a common phenomenon. That whistleblowers were getting forced into psychiatric evaluations and sometimes locked up in psychiatric hospitals in the midst of their whistleblowing activities. But, you know, it seemed kind of crazy. I thought, oh, well maybe one, there were, you know, there are a couple cases that hit the news and I read about them and I thought, well, yeah, you assume it's rare. But then I got Tom Devine, the senior legal director with the government accountability project on the phone. And he basically told me story after story after story of whistleblowers having this happen to them. He called it a bread and butter harassment tactic. He said it's so common that when he has a new client, it's part of his standard educational first day meeting speech that he gives them. Is to tell them, look, this is something that's likely gonna happen to you, you're gonna be forced into a psychiatric evaluation. You are going to be, probably, compelled into a psychiatric hospital, potentially. Is this something that you're prepared to deal with? Because the stress of these kinds of experiences of engaging in whistleblowing, going through these very serious attempts to undermine your credibility can really wear on people.

Jesse: And you detailed how these systems are expanding, they're becoming more and more normal. They're appearing in our workplaces, they're appearing in our schools, elementary schools, universities, and it seems like these sorts of systems and mechanisms just continue to expand. What sort of justification did you find, or explanation, for the expanse of involuntary commitments? For the expanse of this tool, involuntary commitments, in all of these different ways and creating all of these different access points?

Rob Wipond: Yeah. It becomes a challenge because right now we're in the midst of this enormous expansion culturally of the notion of what mental health even i,s and what mental disorders are, and it's presumed that improving people's mental health can only be a good thing. What could possibly be wrong with me trying to help improve your mental health, right? Us trying to improve our mental health together? Yeah, we're gonna try to make everybody feel better, what's wrong with that? Everybody's gonna be a better person, what's wrong with that? Right? Well, yeah, the devil is in the details, that's the issue here. And so we have this massive expansion going on everywhere. Workplace mental health programs, school education, mental health programs, throughout our culture, in long-term care facilities. There's people that show up to help make sure everybody's mental health is okay. All these little programs and things and all that seems so good, except that who's driving it? What's their agenda? What's their notion of what it means to be mentally healthy? What's their notion of what it means to be not mentally healthy? And how aggressively do they intervene if they think you're not mentally healthy? 

The other thing that's feeding into this is there's just an assumption that these treatments are helpful. It's become very vague. A lot of people do them voluntarily, they might have a good experience, they might not, they make that decision. So they don't have an association with, say, a psychiatric drug, like an antidepressant as a threatening tool. Maybe they've never even tried an antipsychotic, so that's the mass of the culture. They don't really know what this experience is like, but when you’re caught in the clutches when someone's now aggressively trying to improve your mental health, the tools are very powerful. Antipsychotic drugs can just knock people out, right? They can debilitate you. It's not like an antidepressant at all, even though some people have quite extreme reactions to antidepressants as well. But antipsychotics are an order of magnitude more powerful. They're the most common tool used in forced treatment, and a lot of people do not like the experience. 

So we have these two things going on at once, and really what I wanted to say about that is that it's just, there's this assumption that what happens at a psychiatric hospital is good, is safe, is helpful. People get treated respectfully. They get all these options presented to them. They can pick and choose. They feel safe, they feel cared for. That is really not the experience that's happening for the vast majority of people out there, that are talking about what's happening to them at least. And in terms of the few studies we have looking at this, it also doesn't seem to bear out in the studies that that's what happens at an average psychiatric hospital. Rather, people feel pressured, they feel coerced, it's a very unpleasant environment. They quickly want to leave because they're like, I thought this was gonna be different. Then they're prevented from leaving. 

Jesse: So the focus of your book is, really, looking at systems of psychiatric detention throughout North America, so you bring a lot of examples of the US and Canada. What differences did you find between the healthcare systems? Did you find that having a universal healthcare system prevented some sort of ttragedies, or did you find that the private system had some advantages? When looking across North America, what were the similarities in these two countries and what were the differences?

Rob Wipond: They're very similar, so to me that's an important part of the story because it is easy to slip down into sort of a rabbit hole of blaming it all on money and power and profit, and if only we get that under control, it'll be fine. But in Canada, in most of these areas, there's far less profit to be made. We have some degree of privatization in the mental health system in Canada, but nowhere near the extent of the United States. Nevertheless, very much we see the same trends as are happening, both this narrative about deinstitutionalization, the narrative about underfunding, and these dramatic increases in the numbers of people who are being forcibly detained and forcibly treated. So the only difference I found, really there was a few, but one of the main ones was simply, it's worse in Canada. And one of the reasons for that is your insurance never runs out. So if they wanna come after you, if they wanna “provide you with services”, they can keep doing that. Whereas in America, I did talk with a lot of people who managed to kind of escape an involuntary commitment situation simply because their insurance would no longer pay and they got thrown out on the street, or back home, or wherever they went. In Canada they can be very aggressive and keep people under their thumb and often do, and that happens in the United States too, don't get me wrong, especially with the poorest of the poor. That's the ironic aspect of this whole thing. So you kind of get two different groups getting more often caught in the system, people with really good insurance or people with no insurance, because then the public system will pay for it.

Jesse: There was one case that you covered in your book which I found astonishing, which seemed to result in the Canadian government suing about 30 private facilities in the US for fraud after a series of, I guess, recruitment efforts? Cross-border recruitment efforts?

Rob Wipond: Yeah, the first time I heard about this, somebody called me, said, Hey, this happened to me. I was like, yeaahhh, you know? Because you're hearing such wacky stories so you can't help but come with a certain degree of skepticism, you know? As a responsible journalist you have to. And it just sounded so scary and unbelievable, you know, even though this person themselves didn't sound that way. They, you know, they presented the story in a way that seemed very credible to me, but I couldn't help but, I had to force myself to kind of doubt her and doubt it. 

Nevertheless, she then forwarded me some of the evidence and I started to look into it and discovered that yes, in fact this was a well documented heyday of fraudulent Mental health treatment back in the 1980s and early nineties where US psychiatric hospitals were paying people to either come up here, or hiring people in Canada to go to different kinds of meetings of Alcoholics Anonymous, or mental health support groups, wherever vulnerable people were meeting. Offer them free sunbelt retreats and you know, like spa-like settings down in Florida or other nice places in the US. And all this is gonna be paid for by Canadian public health insurance. It's gonna be so wonderful, and even your flight is paid, come on down. And people would, and a large percentage of them subsequently got immediately detained in psychiatric hospitals, declared to be dangerous to themselves. And then the Ontario Health Insurance Plan, in this particular case where I found lots of evidence, was being bilked for millions of dollars. Like, ultimately the Ontario government sued these 25 hospitals for about 150 million as I recall, and laid it out in these court documents. And they ultimately settled out of court. 

And then I discovered that this was just part of a much huger trend between the two countries, and also within the United States itself. 

Jesse: One thing I really appreciated was how you framed the increasing prevalence of people being given a psychiatric diagnosis. Because you framed it as, that a diagnosis is essentially the first step towards a commitment, because you have to find that the person has a mental illness in order to justify the detention. So as that rate increases so does the number of people who have met that first step in the criteria towards psychiatric detention. 

Rob Wipond: It's important for people to realize that the way civil mental health laws are written is that the first step is that you're diagnosed with a mental disorder. If you're not diagnosed with a mental disorder, mental health law does not apply to you. So this means the first step one criterion in potentially getting involuntarily committed is that you get diagnosed with having a mental disorder. Well, the latest numbers around this suggest that by the time they're 18 years old, 50% of American children will have had a clinical mental disorder. The latest numbers from a study in the Journal of the American Medical Association suggest that 86% of people at some point in their lives will meet the criteria for clinical mental disorder. So in effect, that means 86% of the population will at some point meet the step one criteria for getting involuntarily committed.

The other piece of the puzzle is that step two and step three and step four of mental health laws have all broadened out substantially. So this notion that you have to be some sort of really threatening, dangerous person, that's ancient history. Yes, if you are that you can be detained, but those are not predominantly the people that are getting detained. Most experts that I talked to said maybe 5% of people who are getting detained at psychiatric hospitals meet those criteria, the dangerousness criteria as laid out by the US Supreme Court. Most people are meeting these other criteria that are, you might be at risk of not being able to take care of your own personal needs, or you might be at risk of mental or physical deterioration. These are the actual wording, they're vague, they're amorphous. They can potentially apply to anyone in any way, just sort of judges and psychiatrists kind of make their own ad hoc decisions. And you would say, well, if all that's true, Rob, surely the consequences of that would be that the number of people getting detained would probably be going up and up and up? But we have this dominant narrative out there that they're going down, down, down. But no, they're actually going up, up, up, the problem is no one's ever really studied it in a formal way before. 

And we finally got a good national study a couple years ago out of UCLA that found that although most states hide these numbers, don't show these numbers, don't collect these numbers very well, where they could find numbers they showed that pretty consistently, across the nation as a whole, the numbers are going up and they're going up dramatically. And that's true for Canada as well. And by dramatically I mean, in many places, doubling over the course of 5 to 10 years. I think this study concluded, over one 5 year period at about three times the rate of population growth, overall. So the numbers of people detained are really going up a lot.

Jesse: One of the things that's really sort of mind blowing to me about a statistic like 86% is that, even if we take that statistic at face value, it's a complicated thing to really figure out how you can determine that, it's a serious indication, like whether or not it's exact, it's an indication that the number is rising, the number of people eligible to receive a psychiatric diagnosis. But that's also not actually the criteria. The criteria is reasonable belief that this person probably has a diagnosable mental illness. And then you see the expansion of these laws to expand to like, I'm in New York City, the Mayor just announced a policy proposal to expand the dangerousness criteria to inability to meet your basic needs for food, clothing, healthcare, or shelter. It's just expanding to include poverty. And when you look at it that way, I don't see a way to view it other than just as a mechanism for social control. 

Rob Wipond: It's very interesting because if you use that term, if you say the mental health system’s purpose is social control, it can sound to many people very, you know, inflammatory, or sensationalist, an off base conspiracy theory, that sort of thing. And yet if you ask anyone, pretty much, what is the purpose of the mental health laws? Of forced treatment? They immediately describe it in social control terms. They'll immediately say, well, the purpose is essentially we don't think this person is living their life in an appropriate way, is behaving in an appropriate way, and okay, they may not be breaking laws, but we still don't think it's appropriate and therefore we are going to lock them up, we're gonna forcibly treat 'em. That's social control. That's what it is, right? And so this is like some strange form of cognitive dissonance we as a culture live in. Where we kind of don't really want to admit what we're doing, what the purpose of this is. If the purpose was truly to heal people, to make people feel better, well, guess what? Almost nobody likes to have all their rights taken away, and they don't like it before, and they don't like it after, and they don't like it during. So that's not what's happening, and it's pretty easy to show that.

And so, yeah, I think that's the issue. We somehow cannot come to terms as a culture with what we're actually doing and as a result we're not making very reasonable decisions about how to improve the system. We're not being honest about the problems within it because we don't even wanna look at it. There's something right now where we just want to turn away from it, kind of let someone else control those people. I don't want to see, like, it's astonishing if you talk about this, how quickly people will come up with some example, like, yeah, but yesterday I was on the street and some crazy person yelled at me and, you know, kind of scared me. What are we gonna do with those people? Like that's the story they'll tell, and then they'll send you a link to an article of some person that pushed someone into a railroad tracks and they'll kind of, like,  link all this together like, that's it, that's what we're talking about. And in their minds, that's what they are talking about. And then I try to say, okay, you gotta realize that's not what we're talking about. That person who pushed somebody off the tracks, they're in the criminal system anyway. That's not what civil commitments are for, that's not what it's about, so back up now. The person that you ran into the street? Yeah, what do you want to do there? And you're just assuming you're gonna help him when you lock him up? Like is that assumption correct? Let's think this through, maybe there's another approach. And that's what we're not doing right now, right now there's some strange assumption that if we lock them up and forcibly drug them, we will have solved this. And yet there's no evidence that that solution actually works. And it also raises the question like, well, if we're gonna talk solutions, what's a good approach? What's a potentially better approach? Right now, it's the only one that's being put forth. I mean, only one being put forth often in the mainstream, but it doesn't take that long for people to at least raise the question around, well, what about more affordable housing? What about simply Housing First support? People getting voluntary support to help them stay in their homes? Well, that would be a huge solution for that segment of the population, absolutely. 

But we also need to understand that right now, involuntary commitment is affecting a much broader segment of the population than that. Those people that we're talking about on the street are almost like, they're becoming caricatured in our portrayal of them. They're really just serving a symbolic purpose in formulating an argument and not really what we should be talking about. We should be talking about more concretely, who really is being forcibly treated? What's happening to them?

Jesse: You speak to a significant number of people with personal experience having gone through some aspect of this system, having been pushed into some access point, or funnel. Do you have a sense of what people who have been traumatized by these systems are looking for? Do you have a sense of whether or not they're looking for accountability? Are they looking for change? Are they looking for acknowledgement? What sense did you have of what people need after they've been traumatized by this system? 

Rob Wipond: That's such an important question, you know, and I wish to God everybody would ask that question more and more throughout our culture. The first answer that comes from my heart around this is they want to be heard. They want people to hear their stories, hear their perspectives, hear their experiences, to be heard and validated in that really first and foremost. And then in my experience, many of these people are extremely knowledgeable, because they are experienced, and as a result of this very traumatizing, frightening experience they've had, they've done their research. They've looked into these issues and they know what's going on, and they're very articulate in proposing what kinds of changes are needed. And so that's where I would go further.

So there's a whole battery of things that get proposed, and I think really everyone in this area is struggling to figure out what might work, right? I mean, a lot of people start from the premise of, this just needs to be absolutely abolished, it should not be happening. There may be an argument made for certain people at certain times, to detain them, to control them, but that's very different than dropping biochemical drugs into their brains. Which are super toxic and can really alter your consciousness. Like, why are we doing that? What justifies that? So, a lot of people would say we need to abolish forced treatment altogether. And I think there are very strong arguments to be made there. And then there's people who just think, that's just not gonna work because look at where our culture's at right now. And so they try to figure out more practical, immediate, possible solutions that might work at their local hospital, you know? Where they say, look, you know, or within their state, you know, how can we change the law to at least make sure that there are stronger, more robust, rights protections for people? People should have appropriate legal representation because right now in many states  you can't even get decent legal representation in this kind of a situation. So there's a battery of things that people will bring to bear around changing laws, making sure people get representation, actually just following what the US Supreme Court has laid out should be laws. Most state, and provincial laws actually in Canada as well, are not in alignment with what the Supreme Courts in either country have said should be the criteria. Because those criteria were quite strict around true imminent immediate danger, and almost no one is applying that strictness of the law anywhere anymore.

Jesse: How  long have you been researching this particular field, like psychiatric commitments? 

Rob Wipond: 25 years. 

Jesse: So, from the point when you first started this 25 year journey to the point you're at now, what has changed about the way you think about involuntary commitments? 

Rob Wipond: It's just far more broadly used than I had any idea at the beginning. I knew right away it looked abusive to me, and dangerous, and then I started to have a vision of sort of the wide array of situations this very extraordinary legal tool is used in. But even in my worst imaginings, I did not imagine what I found when I looked deeper and deeper. And still today, each day, I hear a yet more shocking story. Something that I go, I should have known that, or, yeah, maybe I got a hint of that now that I think about it, but I never really followed up on it 10 years ago. Now somebody's really laying it out for me and I'm realizing, oh my God, it's happening here too. 

It's just the extent to which this tool is reshaping people's lives and reshaping our entire society like, you know, the latest for me is talking with more and more people that work in group homes. And out in communities where just the day-to-day life of a person, everything they do from the moment they get up, to the moment they go to sleep, to how long they sleep, right? And what drug they're taking before they go to sleep, all of these things are being acutely monitored. There's a level of surveillance and policing going on, of a vast sector of our society, that almost no one knows about. It's much more intense than probation for criminal offenders, which itself can be fairly aggressive. But here in the mental health world, just an average person who's been labeled with severe mental illness and has ended up in a group home because maybe they're struggling in some ways to meet some of their own daily needs, and maybe they do need some level of support. Instead of getting voluntary support, they're getting involuntary control. And it's the sheer extent of that I am still just learning about it, and to me it's quite frightening. So that's one of the big things that's changed. I just never really had a sense, I think, of the level of detail, of the control mechanisms that are taking place out there in terms of people's individual lives.

And then the other piece of it is just the sheer scope of it across the culture in all these different places in our society. Where pregnant women are getting locked up, you know, to try to control them and their fetuses, and whistleblowers are getting caught and people in workplaces, just a performance evaluation can suddenly turn into a recommendation for you to get psychiatric help, and then it turns into pressure for you to take psychiatric medications. Again, something I really didn't know the scope of that when I began.

Jesse: Well, Rob, thank you so much for the interview, thank you for the book, I really appreciate the work you're doing. 

Rob Wipond: Oh, great. 

Jesse: So, thank you. 

Rob Wipond: Okay, thanks, take care.

Jesse: Committable is produced by Jim McQuaid. Michelle Stockman and me, Jesse Mangan. All music is from the Song Reasonable by Christopher G. Brown.

S1 Episode 7: The Baker Act Transcript

JESSE: Every state in the U.S. has a law defining when and how a person perceived to be in distress can be detained for evaluation. In Florida that law is often referred to as the Baker Act. The way this law is written it doesn't seem to me to be that different from most other states. What does seem different about the Baker Act is that it is frequently being used on children.

To better understand the Baker Act and why it's being used to involuntarily detain people as young as five years old, I spoke with Bacardi Jackson from the Southern Poverty Law Center. 

BACARDI JACKSON: Hi there, I'm Bacardi Jackson, I am a managing attorney and senior supervising attorney for the Southern Poverty Law Center and I work with the children's rights practice group. Our practice group focuses on stopping the school to prison pipeline, ensuring children have mental health and other health access, as well as focusing on equity and education, which is mostly ensuring that our public funds continue to support our public schools.

JESSE: What is the Baker Act? 

BACARDI JACKSON: Baker Act is the colloquial name that is used for the Florida Mental Health Act and it authorizes a person to be committed for an involuntary psychiatric examination for up to 72 hours. It is supposed to be used only in the rare circumstance that a person is a serious threat of, serious bodily harm to themselves or others. And so there are stringent requirements that should be met. You have to have a reason to believe that the person has a mental illness and because of that mental illness the person has refused voluntary examination after they have understood its purpose, or the person is not able to determine whether an examination is necessary, or if without care or treatment the person is likely to suffer from neglect which could pose a serious threat of substantial harm to their wellbeing. And it's not clear that the harm could be avoided with the help of family members or friends or other services. And then finally, the one that typically children are Baker Acted under is the provision that says without care or treatment there's a substantial likelihood, evidenced by recent behavior, that the person will cause serious bodily harm to themselves or others in the near future. 

So it should be imminent danger and risk of harm that would trigger the Baker Act but unfortunately, as we have recently reported in our report that we've prepared with partners, that is not the case.

JESSE: When was the Baker Act formalized? 

BACARDI JACKSON: This is an act that's been on the books for quite a while. I don't have the exact date, I want to say maybe the 70s, so it's been around for a long while. We haven't seen though this surge in Baker Acting as it relates to children though, until more recently.

So it is a, it's a more recent phenomenon in the last decade where we've seen this huge spike in children being Baker Acted and it correlates with policing in our schools. 

JESSE: What safeguards are in place for what is perceived to be an emergency where someone is deciding that a child has to be sent to a psychiatric facility?

BACARDI JACKSON: Well, currently there are not very many safeguards and that is why we are in a situation where we have 37,000 children each year being Baker Acted, we believe most of them inappropriately. We currently see that the Baker Act is used routinely on children who are not a danger to themselves or others, who do not appear to have a mental illness, whose behavior is not the result of a developmental disability, and whose parents have not consented to any kind of involuntary examination. And who could have their behaviors treated in a less restrictive way. 

So this is routine for us in Florida that instead of looking for other means of interventions or figuring out ways to deal with normal adolescent behavior, or to have appropriate interventions when children express symptoms of their disabilities, we have come up with this what we consider to be another pipeline to push children out of school, often the most vulnerable children are the most marginalized children, into this Baker Act system. 

So, sadly there don't seem to be a lot of safety rails to stop that. There are some proposals currently that people are considering that we have proposed that we would like to see become law that would create greater safeguards. One of the problems that exist right now in the law is that there are a host of people who can initiate a Baker Act exam. That includes judges, police officers, and a range of mental health providers, which could include a clinical psychologist, a psychiatric nurse, mental health counselors, marriage and family therapist, or social workers.

So any of those groups of people can initiate a Baker Act, but there are only three and that is the physician, a psychiatrist, or a psychiatric nurse, who could release a child once they've been Baker Acted. So that often means the children have to spend a night in a facility until one of those three people is available to actually conduct the examination.

JESSE: There is a broad range of people who are legally authorized to initiate a Baker Act, but only a few who are legally authorized to evaluate a child once that child reaches a psychiatric facility. So it has become far too common for a child to be Baker Acted by a police officer, brought to a psychiatric facility for evaluation, and then held there in limbo because the facility has no one available to do the necessary evaluation to determine if that child actually meets the criteria to be held.

So I asked Bacardi, is there any accountability if the person who initiates the Baker Act gets it wrong? 

BACARDI JACKSON: No. And that's part of the problem is that you don't even have to have any kind of mental health professional weigh in, in the first place. And even if you bring the child to a facility and the mental health professionals, it could be a social worker or therapist who is sitting right there at the desk, who could easily see, “Oh, this child is autistic. There's nothing we can do in a mental health facility to address the symptoms of autism. This is not an appropriate Baker Act. This is not a child who should sit here.” 

They don't even have the authority to stop what has already been initiated by an officer who may or may not have any training whatsoever in mental health. It's deeply problematic that you can have people with no training initiating this Baker Act and then there's nothing that can be done until the process is followed to release the child. Even the parents who, you know, we know anecdotally many stories of parents begging people to just let them take their child home and that request is denied.

JESSE: If the initial point of contact where a police officer first encounters a child is usually a school, what responsibilities does the school have to make sure that this process is being handled appropriately? 

BACARDI JACKSON: And sadly, that's another failing of our system, there is no process or accountability for our schools. In fact, um, our schools are the ones that are usually initiating the Baker Act. In part because we have opted to Instead of resourcing our schools appropriately with mental health staff and making sure we even meet the minimum ratio that's recommended, which is 250 to one. And we're somewhere well over 400 to one for school counselors to children, we instead have decided to spend our funds and resources on policing our students.

And we have seen as a result of that policing, as a result of the law and order climate we're creating in our schools, the surveillance state we're creating in our schools. We have seen every measure of, you know, children being pushed out. Whether it's suspensions, expulsions, Baker Acting, all of those have increased as we have created this climate.

Some of it is based on the fear that came out of the tragedy at Marjory Stoneman Douglas, and all of the things that have been recommended since then. And so, as a result we have a lot of educators who are afraid not to involve the police, to not make that call, and then once the police are involved those children end up getting swept into a system that they had no business being in.

And because it's the law enforcement who is officially initiating the Baker Act, schools will even say, “Well, we don't keep any reports on it. We don't even report the data or maintain the data because it's not us. It's them.” And so even trying to get a handle on where the systemic breakdown is happening is very hard for advocates to even get sufficient and complete data.

And that's one of the other things that we would love to see changed in the policy, and in the laws, is that school should be responsible for every single child that is Baker Acted on a campus. There should be sufficient data, there should be some checkpoints, there should be someone who has checked in to see if this child has a disability, whether or not the proper interventions have been followed in order to make sure that this is an appropriate Baker Act.

JESSE: From what data is available is the problem equally prevalent at both public and private schools? 

BACARDI JACKSON: I don't have the data available as to public versus private. We do know that the implementation of the Baker Act is not evenly felt in terms of, um, students of color, Black students, students with disabilities are far more disproportionately Baker Acted than their peers. And that is problematic, but we don't have the data breakdown of public versus private schools. 

JESSE: Have you seen any evidence that use of the Baker Act is actually beneficial for the child? 

BACARDI JACKSON: From the stories that we have been told directly, and the people who have spoken to us, we’ve spoken to scores of families and children through us and through our partners on the ground who do a lot of the direct services work. And all of those families have been families that have been deeply harmed, um, whose children are still years later suffering from the trauma that they experienced being Baker Acted. So I have not personally witnessed or met anyone who has told me this has been a beneficial intervention. 

I did read one story, um, that was in a 2019 newspaper article, that highlighted some of the real problems with the Baker Act and it juxtaposed a couple of different stories. One story I think was the child was deeply traumatized, like most of the children we see, and then there was one story of a young woman, I believe out of Naples, who said it saved her life. And that was a child who was suicidal and had attempted suicide on several occasions. 

Most of the children we have seen, and the public records requests we've made, and the many, many records we've reviewed, that has not been the case. The children, you know, part of the sort of magic words that might trigger someone being Baker Acted is if they say something like they want to hurt themselves. But what we've seen is a lot of times those children have been led in leading questions to say the kinds of things that will get them Baker Acted. So the first question may be, “Are you feeling sad? Have you thought about hurting yourself? How would you go about hurting yourself?” And once the child answers those questions, and they have then demonstrated a plan, then that is sort of deemed the magic words that can get someone Baker Acted.

So, you know, we have unfortunately not seen it be helpful, it's been mostly deeply harmful, but certainly there could be some cases where it is. I would add though that the psychiatrists that we've talked to, the pediatric psychiatrists have told us that even for a child in crisis this is not the kind of intervention they would recommend. That child certainly needs mental health services but being swept up in an involuntary hold for 72 hours is not sufficient, nor necessarily effective, in terms of what that child needs to actually deal with that mental health crisis. 

So I can't say for certain as to how effective it is in terms of numbers, because we don't have enough data, and that's data that would be helpful to know. It would be helpful to know how many children once they arrive at the door of a Baker Act facility are then turned away immediately because it's very clear they don't belong there. We think that number is quite high. We've heard some facilities tell us it's clear to them that at least 25% of the children who show up there are very clearly inappropriately there. And I would imagine that might even be a very conservative estimate. 

So that's one of the reasons we would love to see more data. We'd love to see more complete data compiled and kept, but the overall message is that we hope people will understand it is not inconsequential when we inappropriately, or illegally, send a child to a psychiatric facility for involuntary examination 

JESSE: In the times where I have been involuntarily detained for evaluation, and then eventually released, the trauma of the detention is compounded by the apparent assumption that once you are released from a psychiatric facility then everything should be fine. That clash between the internal struggle of being ripped out of your life and detained in a psychiatric facility, and the external conflict of being pushed back out into society without you, or the community receiving you, being given the appropriate tools to process that experience, that clash further compounds the trauma. All but guaranteeing that it could be permanent. 

So I asked Bacardi, are there any services provided to help that child, and their family, cope with the experience of being Baker Acted?

BACARDI JACKSON:  Not only are most of the kids released without much follow-up intervention, or any kind of coordination with services they may be receiving in the community, that doesn't seem to be a complete system in place at all. But beyond that is you then have children who have learned from this experience to keep their emotions to themselves. They've learned they can't trust adults and they certainly can't trust adults when they have scary thoughts about hurting themselves or others.

And so you end up driving underground, the very information you need to be obtaining. And you have in the child's mind criminalized this child for needing any kind of emotional support. And so not only have you then kept the child from talking about it but the child is not very likely, nor is the family very likely, to seek mental health services for that child.

In addition to the actual trauma of being Baker Acted what we have in Florida is we have now threat assessment models across the state, we have databases, statewide databases, that are labeling children as threats once they've had an experience of being Baker Acted, whether or not that Baker Acting was appropriate. They're then put on, in some places like Pasco county where we have a predictive policing model, they're put on watchlists, and then they may be suffering harassment from police. So we have all of these disincentives, after you have a child go through something that's already so harmful, for them to even seek any kind of follow-up care.

So we are seeing just the opposite of what you suggest would be appropriate, and I agree with you, would be follow-up services, would be encouragement to get additional mental health services. But that's the exact opposite of what would be happening once somebody has this experience.

JESSE: Just to clarify, are you saying that there are counties where a child can be involuntarily detained for evaluation and then put on a list where they are, uh, monitored or I don't know “watched” for years?

BACARDI JACKSON: Right, so right now, one of the recommendations that have come out of the MSD commission was to have information shared between schools and police departments, so to the extent that is a school record, they want that information to be shared. That child may be put on a list, they may be deemed a threat under the threat assessment models. In Pasco county in particular we know there is this happening, there are 450 unnamed children who, or about 450 who they won't release the names for, who are on some sort of list. And children and families are being monitored and harassed in Pasco county, we believe as a result of this list, which is another issue we've been delving into with a number of community partners. 

And so, yeah, you can have a police officer make a decision to initiate a Baker Act and then use that Baker Act against the child to keep harassing them. So we have created a really precarious system that can traumatize and harm children for many years.

JESSE: Most of the facilities that kids are being sent to, I assume, are private, so they're for profit. So there are people being held in facilities and the facility is billing every day that the person is held there. Is it possible that these facilities are profiting off of the overuse of the Baker Act?

BACARDI JACKSON: That is the sad truth of it. Yes, there are a number of facilities that profit off of this and some of them are public. So all of the facilities are not at all built the same and they're not all equally good or bad, they are very differently situated, as you mentioned some may be private, some are public. There have been exposes done that have shown that there was some facilities, in particular I think in the Orlando area, that were taking advantage of the system and holding children as long as possible, which was beyond the 72 hours, then they would file that petition I mentioned that would tell the court they wanted to keep the child longer. And then right before the hearing they would just withdraw their petition. And so that meant they got to keep the child up to five days, past the 72 hours, so they've kept them for a full week and they're billing all of that time.

And so, you know, those are the most unscrupulous facilities we've seen. And as I mentioned, they're not all the same, there are also some good facilities that would send a child who shouldn't be there home right away. 

But certainly it is an industry that cries for some regulation and accountability which we are not currently seeing. 

JESSE: So a child is being held for 72 hours, someone in that facility decides to hold them longer, so the child automatically gets a hearing scheduled and the facility holds that child for about another five days and then releases the child just before the hearing? I could understand if that happens once, or twice, maybe three times something like that, but this is a pattern. Is there any possible explanation for that pattern other than profit?

BACARDI JACKSON: I can think of no other explanation. You can't tell me there's one county where all the children are just so seriously disturbed and that they need to be held, and then all of a sudden there's a realization that, oh, no, they don't. I can think of no other motivation other than profit for that. 

JESSE: What else should people be looking at to try and stop what is clearly a concerning problem?

BACARDI JACKSON: I think there are some really easy fixes that we could change in the law if we have the will and the encouragement of people getting involved, contacting their legislators.

And one of those is this that with every initiation of a Baker Act there should be a mental health professional making that call. It should not be someone without training who can subject a child to overnight stays in a facility, that's just inappropriate. We can easily either require a police officer, or whoever is trying to initiate a Baker Act, to contact a mental health provider.

We've got a lot of remote services right now as a result of COVID, that could be done remotely. It could be done when the child is taken to a facility, that there could be a mental health professional, and ironically, what you will find in the actual law that exists, is there currently is a higher standard for any mental health professional who wants to initiate a Baker Act.

They actually have to observe behaviors that show that the child meets the criteria. For a police officer they don't have that same criteria, they could just Baker Act a child based on hearsay. And so we have people with less training, with less strict requirements, who could subject a child to this.

And so that I think would be an easy fix to say, maybe even if a police officer showed up with a child that officer should not have the authority to initiate the exam. That should still be left, just like it would be in an emergency room in any other situation, for the professional at that facility to make that call. A professional would decide if a person needed to come in an ER room, not the police officer who brought them here.

The other issue is around the transportation of children. Right now under the law children are handcuffed and taken in the back of police cars. That in and of itself is deeply traumatizing. Imagine if you're having a childhood meltdown and the next thing that happens to you is you're handcuffed, at five and six years old, and then put in the back of a cop car.

You don't distinguish that experience from being arrested. And in fact, we've had clients who've told us my child doesn't want to go back to school because they don't want to go to jail again. And so for them there is no distinction between arrest and jail and what they've just experienced, we could change that.

We could say parents should be given the right to pick up their children. Parents should be given the right to consent to this in the first place. A parent will know better if their child is, if this is normal behavior, they have interventions that they know work. They should be given that right to do that before someone else takes that decision from them.

So those are some real basic things that could be done. We think currently the statute is written the same for children and adults and that's a mistake. There should be a complete separate section legally that codifies something different for children who have different circumstances and needs. That is something we would love to see legislators take a look at.

And the other thing is that any proposed solution should have at its center the most impacted people. It should not be that the facilities who may make money off of this, or that judges who sit and see the worst cases of people who need the greatest services, those shouldn't be the people constructing the new laws or changing them. They can have input but the most critical people to have centered at the table are the people who have experienced this. The children and the families who have survived it, or not quite so survived it. Those should be the ones consulted first and foremost in the formulation of any statutory corrections and creations.

JESSE: In a report titled “Costly and Cruel” released by the Southern Poverty Law Center, it states that in the 2018 to 2019 fiscal year the Baker Act was used to involuntarily detain children, children as young as 5 years old, 37,882 times. 

I was 19 the first time I was detained for evaluation and I still struggle with the trauma that caused. 

If I had been younger; 12, or 10, or 5, if I had been that young when I was involuntarily detained? I don't think I would've survived.

37,882. 

Those are the voices that need to be heard.

S1 Episode 6: Outpatient Commitments Transcript

JESSE: When we started this podcast we were focused on learning as much as we could about involuntary in-patient commitments. It became quickly apparent however, that there is another type of commitment that we should also be talking about. 

Involuntary outpatient commitments.

Outpatient commitment laws vary from state to state, but for the sake of this conversation we are going to broadly describe them as a court order requiring someone to engage in treatment outside of an inpatient hospital setting. Outpatient commitment laws also come with different terminology. In some states, they are called outpatient commitments. In some states,

they are called mandatory outpatient treatment. And in other states, like New York state, they are called assisted outpatient treatment.

To learn more about assisted outpatient treatment. 

BRIAN STETTIN: Sorry about my barking dog, I’m sure that’s ruining your recording. 

JESSE: I spoke to Brian Stettin.

BRIAN STETTIN: My name is Brian Stettin, I'm the policy director for an organization called the Treatment Advocacy Center. We're a national nonprofit group that works to remove barriers to the treatment of severe mental illness. 

JESSE: I started by asking Brian, what is assisted outpatient treatment? 

BRIAN STETTIN: Assisted outpatient treatment, or AOT, is the practice of providing a person with severe mental illness who has a history of disengaging with community-based treatment for that illness, uh, with an opportunity to receive care in the community under a court order.

And we use the court order as a means of helping a person understand their need for treatment and have a period of receiving treatment under controlled conditions to the point where they can, uh, hopefully recognize that being engaged in treatment is something that makes their lives better. 

JESSE: A court order can sound intimidating, can you walk through the basic process of reaching that point where a court order is issued? 

BRIAN STETTIN: Sure, and let me say even before I do that, that any sense of intimidation a person might have about the idea that we're placing someone under a court order I think comes from differences in the way we apply this court order, then the way it ordinarily works in other legal contexts, right?

So, he reason people tend to be intimidated by the concept of a court order is we think about the person being held in contempt of court. That is under normal circumstances if you don't obey a court order, a court can hold you in contempt and you could wind up in jail, or fines could pile up. In most states, we have provisions in the law that say the person can not be held in contempt of court for violating this particular order.

We're not trying to create a new way to get somebody into a jail cell, just the opposite. So, uh, that's not how this is enforced. Nor would we say a person gets automatically recommitted to the hospital because they haven't obeyed the order, if you don't meet criteria for hospitalization that can’t happen. Nor do we go into the community and involuntarily administer medications to people who are not taking them as directed by the court.

You know, that kind of involuntary medication through restraint is something that only happens in a hospital setting, and only under certain conditions that just aren't part of what AOT is about. So the kind of traditional teeth you might associate with being under court order are just not part of how this works.

There is no punishment associated with not doing what the court said, so every state has a set of criteria that have to be met for the court to find that this is appropriate. This is not for everybody with severe mental illness. It's only for people with severe mental illness who have demonstrated historically that they have difficulty engaging with treatment on a voluntary basis.

So there are legal criteria that a hospital, or a doctor, or a county mental health system has to allege and then prove in court before the court can be satisfied that, yes, this is someone who is stuck in the revolving door of the mental health system, who has a demonstrated need for this kind of assistance in order to survive safely in the community. Uh, and so all that through due process must be established in court before we can put this order in place. 

JESSE: My understanding was with the court order, you are not automatically sent inpatient if you stop engaging in treatment, but it does trigger an evaluation, is that correct? 

BRIAN STETTIN: Yeah, that's right, so it would trigger a short-term hold in a hospital for a person to be evaluated. I don't wanna give the impression that it's not going to interfere with the person's liberty at all. It will, to some extent under most state laws, again, these vary from state to state, and it's all determined by what's in the law of a particular state.

But the typical process is that if the treatment provider determines the person is not adherent to the treatment the court has ordered, and has made good faith efforts to solicit that adherence and it just isn't working, that gives that provider authority to go to the court and ask for an order directing the person be held for up to 48, or 72 hours, again, varying by state, so that the person can be evaluated to determine whether it's necessary to move them up to a more restrictive level of care.

We think this person might need to be hospitalized at this point. We won't know unless we bring them in for an evaluation, so that gives the court the authority to have the person held for a short time to be evaluated, and then we'd come back for another hearing. And if during that evaluation it's found the person doesn't meet inpatient criteria that person has a right to be released back to the community. Hopefully we'll get them back before the judge to have just a, kind of a sit down with the treatment team where we say, “Hey, Right now we can't hold you any longer but we all kind of know where this is headed because, let's just look at the history that got you into this program, you've been in the hospital eight times in the last two years, because you have had trouble engaging with treatment, and we know you don't like to go to the hospital. So let's all work together to make this court order effective.” And that's really all the teeth we have and it's all the teeth we need to make these programs worthwhile.

JESSE: Do you think it would be theoretically possible to restructure healthcare, or maybe reform it in the U S in a way where AOTs were no longer necessary? 

BRIAN STETTIN: I don't, and I'll tell you why because, you know, AOT is designed to address a problem that isn't going away, which is lack of insight, right? Clinical term for that is anosognosia. The inability of some folks to recognize their own need for treatment.

And, you know, I am ready to lock arms with anybody who feels that we don't do enough to provide treatment for people who are desperately wanting it. And I absolutely think there are lots of people doing poorly today who don't need AOT, who would do much better if we simply built up a better system of community-based care.

But I think we also have to recognize there is a population for whom that is not enough because they don't believe they have an illness. It's a corollary of their illness that they can't see, no matter how desperately obvious it is to the people who love them, they can't see they have an illness and have a need for treatment.

And it's just kind of common sense that no wonderful system of community-based care is going to be attractive to someone who doesn't believe they have the issue that that system is designed to address. And so that is why I do believe we're always going to need this kind of involuntary mechanism. It's not something with most people it needs to stay in place for very long, about a year seems to be the sweet spot for most people to get to a point where they, even if they don't come to recognize they have an illness, cause that's just not possible for some people, but they do recognize that their lives are a whole lot better now that they are engaged with treatment and they develop habits of treatment engagement.

I think we're always going to need that mechanism for people who have that particular deficit. 

JESSE: Anosognosia is typically simplified as being “lack of insight,”. Essentially, that someone believed to be displaying symptoms of a diagnosis isn't aware, or refuses to accept, that they are displaying symptoms and that the diagnosis is accurate. 

But it's more complex than that.

In part, because this term is primarily associated with conditions that involve identifiable damage to the brain. But in these conversations it's being used in reference to S.M.I., or, Serious Mental Illness. To clarify this term, a serious mental illness is not determined by the type of diagnosis, it is determined by the severity of the diagnosis.

Years ago I was more than once given a diagnosis of severe anorexia and I remember being in a hospital while a physician suggested that I lacked insight into my illness. I remember being told that and knowing that it wasn't true. In that situation I did not deny that I had severe anorexia. I did not deny, or refuse to accept, that I had a serious mental illness. In that situation

I was emotional, I was scared, and I was trying to communicate that I disagreed with the treatment. 

But the physician either wasn't aware of, or refused to accept, what I was trying to say. 

When it comes to mental illness, lack of insight is not determined by objective information about a person's state of mind. It is determined by a clinician’s interpretation of the symptoms that they believe to be present. Lack of insight is an opinion. And anosognosia is a complicated diagnosis, primarily attributed to people with an underlying physical condition, that can only responsibly be given to a person who does not want to engage in treatment after every other reasonable explanation for why that person might not want to engage in treatment has been ruled out.

But AOT is designed to help reduce in-patient commitments. 

All of the commitments I experienced were in Massachusetts, one of only three states in the US that does not have some form of outpatient commitments. To better understand why some people in Massachusetts continue to be passionate and active advocates against outpatient commitment laws I spoke to Sera Davidow from the Western Mass Recovery Learning Community 

SERA DAVIDOW: My name is Sera Davidow, and I'm the director of the Western Mass Recovery Learning Community. 

JESSE: What is assisted outpatient treatment? 

SERA DAVIDOW: Assisted outpatient treatment is a euphemism, we'll start there. It is a euphemism for involuntary outpatient commitment.

The reason I say it’s a euphemism is because it's a phrase designed to make it all sound really nice and helpful. You know, we're just going to assist you with your treatment.  So I hesitate to use either the word assisted or the word treatment because assisted, you know, if I'm looking for assistance that's a voluntary sounding sort of thing, a supportive sounding thing.

And in fact this is forced that we're talking about, um, treatments. 

You know, we're trained to hear treatment as generally a good thing and desirable thing and in fact many of the things that so-called assisted outpatient treatments forces ends up being quite harmful and really designed to protect society, or people's idea of what's right rather than actually supporting someone. In its essence though, assisted outpatient treatment, which you'll also hear referred to as AOT or what I would refer to it is again, involuntary outpatient commitment. What it is is a court order against a person that is perceived as being at risk of, sometimes of potentially harming others but sometimes it's just of harming or not taking care of themselves in the way that society or a particular treatment team believes that someone should. It's a court order that allows for the forcing of particular psychiatric drugs. 

It can also, however, you know, I think a lot of people understand it to be around psych drugs, but it's not just, it can also be used to force someone to go to a day program, or to live in a particular area, or any number of other things that influence their day to day life. What providers they should be seeing, that they should be seeing particular providers at all. All of that can become a part of these involuntary outpatient commitment orders.

JESSE: What is it about a court order that might make this problematic? 

SERA DAVIDOW: So many things about it being a court order make it problematic. In pretty much every other part of the way our society and our legal system is designed you have to have committed a crime to be forced by the court to do something that you don't otherwise want to do.

And so this is a strange sort of way of putting someone essentially on legal probation when they haven't committed a crime. In many instances it's simply based on the idea that some group of people is worried you might commit a crime, or that you might not take care of yourself, or you might try to kill yourself, what have you. And that's a lot of projection and a lot of fears that need to be owned by the people who have them and not necessarily forced on someone else. 

There are many other situations in our society where we would be reasonable in having fears that something is going to go wrong and yet there's no other part of society, that I can think of any way, where you can go say, “Hey, I'm really afraid that over her  there's going to be violence that happens, or this bad thing will happen.”

And that you can actually force something on someone. There's just so many situations where, in my world, I could be reasonably based in reality to have worries that something might go wrong but I don't have that power. So, why do we have that power over people when it comes to psychiatric diagnosis? For me, that is based in discrimination and psychiatric oppression and we need to take a look at why we've given our legal system that power. It's a power that has existed in many ways in the past, in more obvious ways that we've gotten rid of. For instance, you used to as a man in this society be able to commit your wife simply because you disagree with how she was raising your children, or her religious beliefs, or what have you.

But we got rid of that, so why are we still stuck here in general with psychiatric diagnoses?

JESSE: In mental health care there's something referred to as the revolving door where someone is committed, then discharged, committed again, discharged again and again, again. What other than involuntary outpatient commitments would you recommend someone try to get out of that revolving door?

SERA DAVIDOW: So I think there's two answers to this question. So, one is how have we defined, how have we decided as a society, what is too many times in the hospital? And is that always bad? 

i really was impressed with there's a psychiatrist, Sandy Steingard who works out of Vermont, who at some point in her writing said something about, you know, when did we decide that the ultimate goal is to keep people out of the hospital forever?

Now I don't want to go in the hospital and I'm not saying like, “Hey, it's a cool place to be.” I too would like to support people to stay out of the hospital. However, the way she lined it up and with the example that I've carried with me for a long time, is that, would it be better to say for someone to avoid being in the hospital once, a couple of times, even a few times in a year, but otherwise be living a full life, versus being drugged so much that all they can really do is kind of sit on their couch and drink coffee, eat a lot, smoke cigarettes and not really be able to do much with their life. Like which of those is actually better?

So how did we as a society get to the absolute belief that number one goal is keeping people out of the hospital? A lot of it's about money, you know, who has the power to drive what is right, what is needed. So, there's that assumption that I don't think we should be operating off of as a starting point, but then let's assume that many people do want to stay out of the hospital and that it is disruptive to people's lives, and not particularly helpful when you're in there.

Then I think we need to look at what is our voluntary system looking like, you know, how do we put money into a voluntary system that actually hears what people want and what they find helpful and offers that? 

I can tell you right now that I generally steer clear of the mental health system for myself but I do have a child who I think would benefit from talking to a therapist at the moment because there's been a disruption in her life and the people that she trusts and I've been looking for a therapist for her. I cannot find one. The best I can find is like maybe in a month or two someone might have an opening for my nine year old daughter who's struggling right now.

So there is my effort to enter voluntarily into this system that I generally avoid and I can't. So, perhaps if we focused on choice and making those sorts of supports readily available, so that we don't push people into such states of desperation and mistrust of the system that we then have to force them to enter it when we suddenly decide that they should, we’d be in a better place. 

And I think we also need to look at the reality that we're operating in a system where it's extremely hard to find a therapist or a psychiatrist who's not white. And so why would people who aren't white trust the system? And there's so many problems that we should be looking to address in a voluntary system that supports real peer support, real alternatives, more peer respites, more living rooms, all of these different things that we could be offering.

And instead we get so wrapped up in psychiatric drugs, hospital, therapists, that's it, and people if they don't want them well at some point we might try and force them. It's just not a functional way of being. 

So . I’ll tell you most, most people who enter these systems have experienced some degree of loss of power and control in their lives that have put them into these places of distress.

So continuing to strip away more power and control isn't generally any sort of answer.

JESSE: In outpatient commitments if someone chooses not to comply with the court ordered treatment plan then legally speaking the worst thing that should happen to them is that they are detained inpatient for evaluation. Are there any risks with mental health care professionals, and judges, just trying an outpatient commitment and detaining the person for evaluation if it doesn't work?

SERA DAVIDOW: If someone decided, “Hey, Sarah is not following through with her therapy and psychiatric treatments, we're going to send her to the hospital.” They’re not thinking about what happens to my child. They're not thinking about what happens to my job. Who's paying my bills? What happens to the place I'm living? People lose their homes, they lose their children, they lose jobs, they lose relationships that are meaningful to them. And on top of that sometimes what we're seeing is that people are on some of these types of orders and they're suffering neurological damage. So, they're being ordered to take psychiatric drugs that are causing them to twitch, and fall, and experience things like tardive dyskinesia that can become permanent if not addressed quickly.

And some other person has decided, “Hey, whatever risk we perceive of them not being on the psychiatric drug is a greater risk than this neurological damage they're experiencing. So let's keep going.” More than once I've seen people who are having those kinds of symptoms, those medical symptoms that can be really devastating and long term, and are just kept on these orders.

JESSE: I asked Sera if there is anything else about involuntary outpatient commitments that is important to know. 

SERA DAVIDOW: I think one thing that's really important for us to pay attention to with outpatient commitments is how it is reflected in terms of racism and other forms of systemic oppression. So, we have tons of research at this point that says you are more likely to get a more severe diagnosis if you are a black or brown person. And then in turn you are more likely to be subjected to orders of force. Once those orders of force are in place, you're also more likely to see them enforced. We have seen that repeatedly through all these systems and so how we can get to a place where we think that something like an involuntary outpatient commitment order could ever be applied fairly, I don't know how we could hang on to that belief because all the evidence says it's just not possible. 

Even if it were something that we believe was somehow helpful, which I don't, then I still don't know how we could get to the point where we as a society are ready to implement it fairly in a way that's not rooted in racism.

JESSE: In 2009, Marvin Swartz and Jeff Swanson led an independent evaluation of assisted outpatient treatment in New York.

A section of that evaluation attempted to address questions about racial disparities in AOT. Here is Committable contributor Brian Patrick Williams reading an excerpt from that 2009 independent evaluation.

BRIAN: Since 1999, about 34% of AOT recipients have been African-Americans, who make up only 17% of the state's population. While 34% of the people on AOT have been whites, who make up 61% of the population. We find that the over-representation of African-Americans in the AOT program is a function of African-Americans higher likelihood of being poor, higher likelihood of being uninsured, higher likelihood of being treated by the public mental health system, rather than by private mental health professions, and higher likelihood of having a history of psychiatric hospitalization. The underlying reasons for these differences in the status of African-Americans are beyond the scope of this report. We find no evidence that the AOT program is disproportionately selecting African-Americans for court orders. Nor is there evidence of a disproportionate effect on other minority populations.

JESSE: If you are aware that systemic racism has horrific impacts on the lives of African-Americans, making it more likely that African Americans will struggle with poverty, more likely that African Americans will be uninsured, and more likely that African-Americans will have a history of psychiatric hospitalizations.

If you are aware of all of that and then design that law, can you really claim that you are separate from the broader system? Can you really claim that your law has no part in the continuation of systemic discrimination? 

While making this episode I was more than once asked, “Why does this matter to you?”

I struggled to answer that.

I have never been court ordered to treatment and I don't currently meet the criteria for an outpatient commitment, so why?

When I was first committed I was a 19 year old college student committed for anorexia and then released with a few conditions. I was not allowed to attend classes, I had to move back into my parents' house, and I could not leave that house without permission. 

And every week I had to go to three appointments; a therapist, a physician, and a nutritionist.

The therapist actively tried to convince my parents to have me committed again.

The physician told me to go to my parents' house and do nothing but think about food and gaining weight. 

And the nutritionist decided that it would be too much work for her to create meal plans or calculate the calories of what I was eating, so she taught me how to count calories and insisted that I keep a detailed record of everything that I ate. 

And if I resisted this treatment? It was strongly implied by the treatment team that if I resisted treatment I could be sent back to the hospital for evaluation. 

So, I did what I was told. 

Within a few weeks the direction that I stay at home thinking about nothing other than food and gaining weight drove a manageable eating disorder into a disabling obsession.

And the detailed records that the nutritionist insisted I make were later used in court as proof that I deserved to be committed. The thing that the treatment team insisted I do after my commitment was used in court to justify that commitment. 

So why does this matter to me? 

Because I know what it's like to be coerced into treatment, I know what it's like to be harmed by treatment. and when treatment causes harm, and disagreeing with the treatment team is dismissed as lack of insight, and lack of insight further empowers that team to exercise their authority, what then? How do you navigate society after an experience like that knowing that the argument that persuades legislators to make new laws is not that those legally authorized to force treatment need to be held accountable for their mistakes. Instead, the argument that compels legislators to act is that treatment teams need more ways of forcing people into treatment.

So when asked, “Why does this matter to you?” Perhaps what I should say is, “Why doesn't this matter more to everyone else?”

S1 Episode 5: Origin of An Idea Transcript

JESSE: The first time I was involuntarily placed in a psych ward I was in shock. I hadn't even begun to comprehend what was happening to me. But by the third time I was confined for treatment a question began to form, where did this idea come from? Why is it socially acceptable to encounter people in distress and conclude that locking them in a psychiatric facility is the appropriate response? Who benefits from that?

To better understand the origin and evolution of psychiatry I spoke to David Cohen. 

DAVID COHEN: My name is David Cohen and I'm a professor of social welfare, or social work, at the university of California in Los Angeles. I research a number of aspects, I guess, of the mental health system, both practices like the use of medications or the use of involuntary confinement.

And also ideas, the history of ideas in the mental health system, the history of the treatments, interventions, and how professions come and go.

JESSE: In order to trace the origins of involuntary commitment laws I asked David, when did psychiatry first appear in the United States?

DAVID COHEN: In the Western world Psychiatry grew out of what's called the trade in lunacy, or private madhouses. Private madhouses existed in England from about the late 1600s and what they did is they took care of inconvenient, troublesome relatives for wealthy clients. 

Let's say you wanted to take your dad's fortune, but your dad was in the way. So you could have a private madhouse take your dad and care for them involuntarily. You paid them and it was acceptable. 

And who owned these madhouses, these private small madhouses? They were entrepreneurs, commercial entrepreneurs. Sometimes they could be church officials, they could be just business people, they could be some of them physicians. Bit by bit these small establishment, private, began to go public. They began to turn themselves as States, generally in Western Europe and so forth, kept themselves a bit more busy with social welfare, if you will. They began to fund some of these madhouses, which turn into small public kinds of hospices and hospitals, which had a different connotation than the hospital as we take care of it today. Sort of places of hospitality for increasingly poor people, but still paying clients. Small establishments, five to 30 to 40 people. And the first such institution appeared in the United States, Williamsburg, Virginia, 1770. But at that time you still couldn't talk of Psychiatry as a distinct discipline, not even of mental medicine, you know, late 1700s, it's still madness. Insanity was still some kind of, not an acceptable condition, but something not necessarily thought of as having to do with medicine. Kind of an affliction of the soul, possibly even some sort of blessing, but not really the concern of physicians, just quite yet. 

Now, the people who ran these institutions, they were called alienists because they concerned themselves with the management of alienation, madness and sanity. And they began to formalize their management principles. The most famous of those people is Philippe Pinel. He was a French physician, late 1700s, 1790s around right after the French revolution, he begins to popularize what's been called since then moral treatment, which was basically a daily regime of work instruction, exercise to change the behavior of the residents of these institutions. You know, according to the norms of the day.

That is what is happening in the U S around that time too. A few others, Quakers, open an institution too. And in 1844, 13 of those alienists, they form an association. They call it the Association of Medical Superintendents of Institutions for the Insane. 50 years later, that association renames itself, 1893 if you want a date, the American Medical Legal Association. In 1921, it calls itself the American Psychiatric Association. 

JESSE: What was the goal of psychiatry when it was formed in the U.S.? 

DAVID COHEN: Every person you ask who might know something about that is going to have a different answer, so that's the only preface I can give you to that.

But the way I answer that is, well, the goal was like any nascent profession, it wanted to grow and develop and become prosperous. But what did it need to do in order to do that? You know, mid 1800s, medical men are beginning increasingly to get involved with managing people called mad. Well, first it needed to convince society, or the decision makers, that that issue, madness, that phenomenon, whatever it was was a medical matter. First thing. It had to relabel, redefine madness eventually, or as we call it today, mental illness. Wasn't called mental illness necessarily, but it had to define madness as a disease. Secondly, based on that, it had to convince people that as medical men, they were able to devise the treatments to solve this disease. And then it had to offer to treat this disease by running the asylums. 

So if you will, if you consider the early 1900s is the time when psychiatry had to be doing this convincing. That's really when it happens a lot. Is redefining problems, considered moral problems, criminal problems, legal problems, how to live problems, had to redefine them as disease.

In the 1920s, the situation of the population of the insane is different than in the late 1700s. By then you've got large walled asylums, usually on the outskirts of almost every major city in almost every state in the United States. These are housing hundreds of people, no longer 30, 40, homogeneous population. Now you've got a lot of immigration. You've got the industrial revolution that has gone through already Western Europe. It's going through the United States. It's changing norms of conduct and families. It's creating these underclasses in the large cities. There's a lot of stuff that's going on. And so the asylums are now turning slowly into some sort of warehouses. By now they're just, you know, you could be a criminal, you could be abandoned by your family, you could just be senile, you end up in the asylum and you're under lock and key. And you're there for a long time under some supervision. And remember at that time, 1920s, 1930s even, very few individual practitioners. Because there's no voluntary psychiatry. You can't hire professional help to deal with your difficulties in living the way you do it now. This is a different ballgame altogether, very few private practitioners. 

But that begins to grow around World War One, 1914, 1920, the men are out, they're gone to war. There were child guidance clinics happening to guide the children. Psychiatry begins to take a more public health approach because first it was not quite distinguished. Neurology people were saying, you know, If you were a private practitioner of neurology, you know, putting people to sleep in these prolonged sleep cures with barbiturates, you were just like throwing water on them, you were playing with their nerves with electrical apparatus because everything was called nerves. So a psychiatrist was barely distinguished from that. So with World War One, they took a more public health approach. It was called at the time mental hygiene. They begin to be more confident because medicine was now a very important profession. It was growing, you know, advances in bacteriology, infectious diseases were being made. So Psychiatry said, Hey, we're part of that too. So we can solve the problems, you know, related to poverty, to alcoholism, to the deteriorating urban life. We're going to take more of a role in that, and [it] helped them to grow as private practitioners.

That's my short answer to what Psychiatry needed to do, or what was its goal. 

JESSE: At what point did psychiatry start to focus on a psychoanalytic approach? 

DAVID COHEN: Psychoanalysis formally encounters America when Freud, Sigmund Freud, the founder, the inventor of psychoanalysis visits America. Visits Massachusetts. He's invited by Clark University in 1909 and he says, very famous words at the time speaking to his biographer I believe, I've come to bring them the plague. Like they don't know it. They're very excited for me to be there, but they don't know that I am bringing them the plague. He said that himself, you know, it's been interpreted many ways. 

He comes in 1909 but the approach really doesn't become prominent until the mid thirties when many Jewish physicians fleeing Austria and Germany are finding haven in the United States in England, mainly in Argentina, for example, many Jewish physicians, including many psychiatrists who were into the psychoanalytic approach and from Germany, which was the leading scientific center of the world. So they were looked at as having some sort of authority and knowledge. They're ambitious people, and that begins to help the spread of psychoanalysis in America. 

But the important thing to mention is that while this was happening, the 1930s, that's the biggest growth period of the asylums in America. It's precisely when psychoanalysis starts to get prominent, it's the Great Depression, the asylums are cracking in terms of people being sent there. That's the biggest growth period, is like, 1930 to 1945. Their populations are growing to reach in about 1955, half a million people. So psychoanalysis gets dominant after the war, that's Second World War. You could say 1950 psychoanalysis is at its peak. Everything is psychoanalytic. You know, if you're called on the radio as an expert, you’re into psychoanalysis, if the press is discussing difficulties, it's discussing what your mother did with you or whatever. In other words, that's the school of thought in mental health at that time.

But what I want to say is that all of this existed alongside this huge network of involuntary psychiatry with these half a million people. So psychiatry was a bit like, to use a different expression, a house divided. Meaning separate but equal kind of parts of involuntary and voluntary psychiatry existing in completely separate ways, little connection with each other, and that constituted psychiatry. 

JESSE: When did psychiatry start to adopt more of a pharmacological approach? 

DAVID COHEN: Some historians are going to see that there's this continuity, that there was always an important pharmacological approach in psychiatry since the 1800s. They talk about the use of hashish, they talk about opium, bromides, and barbiturates in the late 1800s. That's always been there, but everyone kind of agrees that 1952, with the arrival of the neuroleptics, Thorazine was the famous brand name, early 1950s in France, spreads to the U.S. in 1954, 1955. That marks the beginning of what you would call the modern, you know, pharmacological era in psychiatry.

Early fifties, people quibble on that. There's other dates, like when LSD was discovered in 1938 by Albert Hoffman. People bring that date as that's when it really began. Other people talk of the discovery of lithium to calm agitated people, 1949 or so. But almost everyone says, whatever else happened, early fifties with the arrival of the antipsychotic neuroleptics in the psychiatric hospital, that kind of changed the whole game. 

And by the sixties you have valium, the benzodiazepines, the tranquilizers, and the stimulants, the amphetamine, like Benzedrine. Those are prescribed enormously to the adult population in the United States. That's the sixties, 10 years later. By the late eighties with the arrival of Prozac and the promotion of the chemical imbalance metaphor widely by the drug companies and everything, then you could say the pharmacological approach is now super dominant. That means whatever the problem, whatever the age group, whatever the situation, prescribe a drug first. Psychoanalysis used to be dominant in the fifties. By the late eighties, the pharmacological approach is totally dominant. By the nineties, expanding with Ritalin, you know, confirming that the market has now expanded completely to include children, which was, that's a new thing. I guess you could say, that's the height of the pharmacological approach in world psychiatry. 

JESSE: What legal or social mechanisms separate the pharmaceutical industry from the institution of psychiatry?

DAVID COHEN: Let me first outline what does not separate psychiatry from the pharmaceutical industry. Because about 10 years ago I called psychiatry a satellite branch of the pharmaceutical industry to indicate that virtually every line of thinking and practice in that profession, in psychiatry, came from the industry.

I mean, the industry spends billions of dollars every year to educate psychiatry, their key opinion leaders. It funds much psychiatric research. It visits as many individual psychiatrists as it can and gives them new drugs to persuade them, to give those to their patients, to prescribe them later on for as long as they can. And it draws in psychiatrists by paying them good money to become consultants. And that's just some of what it does. This occurs in all medical disciplines, by the way, not just psychiatry. So that tells you that, my God, there's a lot of common shared stuff. 

So what separates them? Well, some codes enacted by some universities or hospitals to identify whether a researcher is getting rewarded by a drug manufacturer while, you know, at the same time that that researcher is supposed to objectively evaluate the manufacturer's drugs, let's say. So are you getting money from the manufacturer? Like, are you double dipping here? You know, you're supposed to represent objectively what is the matter with that product or not, and then the manufacturer is paying you? So there's some codes of ethics and stuff in some institutions. That's one mechanism. 

There is a federal law. There's something called a Physician Sunshine Act that was enacted during the Obama administration, 2010, 2011. It mandates any physician to report any gift over a hundred dollars annually that goes into a database and every quarter or so the database publishes the names of these physicians and how much they're getting from which industry.

And then also you've got things like rules in most medical journals today that require the authors of the articles to identify any, you know, disclose any commercial relationships that might conflict with their, you know, expected role as a truth teller or a scientist. I've mentioned three things here that I can think of, you know, easily, there may be more. But none of the ones I've mentioned is considered very effective.

It all depends on the willingness of journalists or academics to study the databases and analyze and report the findings. There's no, you know, law or super-duper mechanism that is really keeping a distinction or a separation, a firewall, between the professions and not just psychiatry. Psychology may have been more stricter in quickly identifying some of the problems and erecting firewalls. Other professions, all the so-called medical and allied professions, are vulnerable, very vulnerable.

And certainly the public is, with direct to consumer ads of drugs and other products. Everyone's very vulnerable because a lot of money goes in every year to persuade us to like the pharmaceutical industry and appreciate what it does for us. 

JESSE: So there's a lot of influences affecting psychiatrists, even how they learn to practice. Is there anything that can stop the opinion of a professional from detaining someone for evaluation? 

DAVID COHEN: Okay. So you're bringing up, when you mentioned detaining, you're bringing up the issue of involuntary care, or involuntary treatment, or interventions, or as I call it in, in a study that I have recently been working on, involuntary psychiatric detention.

So that's a particular procedure run or regulated if you will, by state laws. So each state has its own law to say, you could do that to someone, if you consider them dangerous as a result of mental illness. So it calls upon physicians or mental health professionals to evaluate the person, say, and to pronounce a judgment. Do you think they're likely to harm themselves or others as a result of mental illness? Are they dangerous as a result of mental illness? 

I keep repeating that because it's important, because a lot of people are dangerous. A lot of people are extremely dangerous, but if it's not as a result of mental illness, as determined by a professional, then they, no one really cares about it. They could be a spectacle, but if it's as a result of mental illness, we could detain you and see what we could do about it. And that's commitment. It's called involuntary civil commitment. 

And you're asking me if someone's in that situation, what can, you know, go against the opinion, if you will, what can limit the opinion of a professional from detaining you?

I would say that the presence of a friend or a relative who says that, you, if you're the person who's possibly subject to this detention, if the say that you got a place to go where you're going to be safe for a couple of days. That in my view would be decisive. That might make the professional change their mind.

Why? Because involuntary psychiatric detention is supposed to be allowable only if no less restrictive alternative is available. No less restrictive alternative. Now how the professional looks for such an alternative or evaluates whether it's even available or exists or appropriate, is unknown. We don't know.

We just know that in the jurisprudence, the courts, if you will, when people have contested or tried to reject these sorts of orders. The courts say it's gotta be a kind of, really a last recourse. You've got to make sure that there's no other place where the person could go, that's less restrictive than being held in a hospital, in a locked room, being stripped searched and all this stuff that goes with that.

So that if a trusted, I would say that a sensible friend saying you got a place to go, you'll be calmer and fairly safe there for a couple of days. That would be very compelling. A hospital would really have to find a darn good argument to hold you if that situation occurs. That's what I would say.

JESSE: In episode one I discussed the experience of being involuntarily committed to a psych ward for evaluation. I have spent years obsessing over this, trying to see it from every possible perspective. Trying to figure out what could I have done differently? How could I have stopped that from happening? I was privileged enough to eventually get to face Dr. Bynum, the psychologist who committed me, in court. It took eight years, 13 hours of deposition, and two rounds of approval from a state tribunal but I got a chance to seek answers through a civil trial. On day one of the trial, the judge acknowledged that he was employed part-time by the same university where I was section 12’d and that he would never allow a verdict in my favor. When Dr. Bynum took the stand, he acknowledged that he didn't think I was suicidal. He acknowledged that he had spoken to both of my parents and was aware that my brother Tom was there at health services waiting to give me a ride to a hospital. Dr. Bynum said that at some point in the day he saw me laughing, and that was such a contrast from earlier in the day when he had seen me crying that I was determined to have a labile mood. And that behavior, one brother using really bad jokes to try and comfort the other during a moment of distress, that behavior meant that we couldn't be trusted.

So instead, Dr. Bynum had me strapped into a gurney by EMTs and wheeled into a locked psychiatric facility for evaluation. 

When David says that in the U S a person can only be committed if there's no less restrictive alternative. Legally he's right. But sometimes, no matter how many family members are involved in the process, the opinion of someone with a few letters after their name is all it takes to physically restrain and detain a person in distress.

To better understand this type of authority and why we as a culture don't talk about it more, I asked David what the proposed or assumed social benefits of involuntary care might be?

DAVID COHEN: Let me give you first my answer, and then tell you what might be the assumed answer, the more mainstream answer. My answer may be a little different, but involuntary psychiatric commitment lets people know that there's a system that's going to deal with people who will break down in families and schools and workplaces, or even in some of the extreme environments where people can live, like the street.

In other words, it's a signal. It’s a strong signal but it's a quiet signal because it's not discussed that often, that the society will try to preserve the integrity of the social institutions that it prizes, that it considers basic, like the family. And it's going to do that by seizing and holding away the individual who, without breaking the law, remember civil commitment is for people who do not break the law by definition, they break the law, you arrest them, you charge them with a crime. 

So we're talking about presumably innocent people. So they're going to be held. They're going to be kept away. Because they appear to threaten that prized institution and they're not easily persuaded to stop. So I would guess that most people, even without thinking about it too explicitly, are very grateful to know that psychiatry, aided, sanctioned by the state, exists to do that. That's a huge benefit, which I don't often hear discussed. Just knowing that these people over there will come, they'll take that person away and they have a set of institutions where they will do what they need to do. 

Now it's justified by us saying, or many of us believing that well, I guess that's because the person is ill and we're going to give it to them because they'll treat that, they'll treat the illness. That's another story altogether, but that’s to me the main social benefit. It's a glue that keeps the social groups together by coercing when persuasion and, you know, bribery, seduction, leverage, fail.

JESSE: Uhhh…

DAVID COHEN: Yeah, there are other things you could say. I mean, you can say, Oh, well it might save some lives. But that itself is not known overall because there's evidence that it might not save lives really. Or you could say, the benefit is that we have more order. There's more order in the society, if you will.

Those, I'm just taking for granted, that people might think that, assume that. So I'm not getting into that, but you could say that, you know, the state is exercising its power to keep order in the streets, for example. So commitment might, you know, indirectly contribute to that. It will just make people have some solution to what is going on in their family with either their father, or mother, or their child.

That's very tough. How do you expulse a child from your home? An adult child. How do you do that? It's almost impossible because they're your child. This is not a business, it's a family. So these problems that occur in families are extremely difficult, but there are some people who will come and take this away so you don't have to feel or be pointed like you expulsed your children because they threatened you, or they broke the window. It's illness that's being taken care of.

JESSE: One of the things I'm still trying to comprehend is that, uh, if you're going in for surgery, you can often be told the risks of mortality, that you need to sign this waiver. You need to understand, here are the risks, but we're doing this because we have evidence that you need it and this surgery will help you get better. I can't, or haven't been able to, find anyone providing evidence that involuntary care is proven to help people get better. I've heard some stories. I've heard stories where people believe they got better. I've heard stories where people got through it and it wasn't a big deal. And I've heard stories where it was pervasively traumatic, but I can't find any evidence to back this up. 

DAVID COHEN: So, to back this up, we need to study what happens to people. You know, maybe, what are the pathways that lead them into involuntary care let's say, as you might call it, and what happens to them during? And then what happens after they leave? 

That is not studied a lot. 

It's just not studied very much for different reasons. If on the one hand, I can tell you authoritatively, because I've just completed a large study on what is publicly available as data on commitment in the United States, every state we went through. And I can just tell you, if there's not even some seriously, or somewhat accurate estimates of just the number of people that are committed, then just imagine, you think we're going to have very detailed study on exactly what happens to them when they're committed and afterwards? Not really. 

But we do have studies that follow up people after they're released from hospitalization in psychiatry without too much attention to legal status, that is, just people who are hospitalized. And exactly what is the proportion of people who are in a psychiatric hospital who would consider that they were forced there by other people? It's hard to estimate really. Some people make the argument that most psychiatric hospitalizations are involuntary, and not just like in an existential sense that, Oh, you don't really have a choice, it was the last place to go, but that there's a lot of pressure to enter in and to stay without it ever being formally registered. It might even break the law. But it just happens because we tolerate it. 

And so there are studies that follow what happens to people when they are hospitalized and leave. And one of the constants of this is the rate of suicide is really highest in the entire population for people who leave hospital. That is, for people within the month and the year after a psychiatric hospitalization, the rate of suicide is hundreds of times higher than it is in the general population. 

So some people say, well, maybe the people were very suicidal to begin with, that's why they're committing suicide after they leave hospital. But one thing you can say is, well, possibly that could be true, but something else that's probably true is, it doesn't look like the stay in the hospital made any difference.

That's a troubling conclusion, but I haven't seen that seriously studied with attention to legal status, with a good confirmation that the hospitalization was involuntary and then a follow-up. I haven't seen that studied. There are pieces of that data in a few larger studies, but I haven't seen any researcher look at that single-mindedly. It's a very important issue because commitment is the major form of a response to a person's kind of, you know, breakdown, if you will. And if we don't really know what it does, and in fact if it exacerbates, let's say suicide, the threat of danger to yourself, main reason why people get committed from a few States that release data on that.

We know that possibly two thirds of people get committed because they make threats of killing themselves. So what exactly happens when we respond by committing them, if we do? It's really important to know. It is very important to know, but we don't have much data on that. 

JESSE: In order to better understand what research on inpatient psychiatric hospitalizations does exist, I asked David about his recently published research into rates of psychiatric detention in the U S.

DAVID COHEN: What we did in the study with my doctoral student Gi Lee and myself, we just tried to look for counts released by States. It is the lowest level scientific task you could say, it's just to count, how much, how many, but it was the most complicated study that I've ever done in my entire 35 year career as a researcher. This was the hardest study I've ever done. Just to count how many people are committed. 

I was familiar with counts that Florida releases annually over the last several years, California releases those counts. I was familiar with those and they tell you, in this year, this fiscal year or calendar year, that many people got admitted for involuntary psychiatric detention, or involuntary psychiatric evaluation, or so, and California gives you a bit of a time period, they say, you know, we have these under 14 days and then those over 14 days and maybe lasting up to a year or so. They give you some just aggregate counts, breaking down a bit by counties. 

Florida does the same just for the emergency ones, they don't tell you for anything longer than three days. But I was familiar with those and we undertook to look see every other state in the union, what were their accounts? 

And to make a long story short, we found 25 States with usable counts, but only about six States that had fairly detailed counts. Like how many people, their ages and genders or sexes. Were they held for a short time? No state, not one state gave the duration of the commitment, not a single state, except Vermont gave some average duration of longer-term stays, which were about 35 to 48 days on average.

But no other state gave you any sense of, are people held for emergency, who are held under three days? Is it two hours or is it 72 hours? You have no idea. Which is baffling when you consider the electronic monitoring today in electronic medical records that no one even gives you the duration. You just can't tell. 

So we counted that. And it's the first study in about 40 years, that actually has such a large sample of States and is able to come up with some reasonable estimate, but not a valid estimate because the counts were incomplete. They were not well-defined. 

Some States clearly defined what they released, and then when you asked them a little later, they said, by the way, we didn't count these other 75 institutions, which had another 18,000 people that are not in the total that we released. You know, so in other words, it's almost like anything goes. You can't quite tell. Most States, it's just, the counts are embedded in the general court statistics, just like some numbers, some column or so that doesn't give too much definition, no commentary. But a few States; Massachusetts, Colorado, Florida, California, Virginia, Vermont, released detailed reports with lots of data.

JESSE: In episode one, we discussed Massachusetts general hospital versus CR, a case that attempted to address an undefined section in commitment law that allowed for a person to potentially be held for an indefinite period of time in an ER, before they ever even reached a psychiatric facility. I asked David, if he had found any data that might indicate how long people in situations like this are held in ERs?

DAVID COHEN: You’d never see that case, it would never stand out. Never. There's no way that you could see that level of detail, like I said, no state, zero, indicates in any way that is publicly available how long a person is held. Some have something they call, Virginia, temporary detention orders I believe, or temporary custody orders. They're defined as being two hours in the law, but you have no clue what it means because they sound exactly like the other sort of detention that they also give you a graph about, that's for 48 hours, and the graphs look almost identical. So you can't tell, you can't tell if they move from one to the other or they just count one because it's shorter but the one that really lasts is the longer one. There's no way to tell. 

And you know what it reflects? As I think about it like this, society is somewhat ambivalent about doing this. In other words, we're ambivalent about forcing care. We do it, but it doesn't mean we enjoy doing it, or we like it. And people have mixed feelings on this. Even opponents, people who strongly oppose involuntary commitment, have mixed feelings on the subject. And proponents too. And I believe that that ambivalence is reflected in the data. The data is so vague. It's almost like they don't want to tell you, you know. The data speaks and tells us no one wants to know about this, 'cause it's painful. It's almost, like, taboo.  

JESSE: As we look further into involuntary care are there any areas that often get overlooked that we should pay attention to?

DAVID COHEN: Every single area. Every step of the process. What is the decision made and why? When Police decide to bring someone to the emergency room. During the assessment, how is that decided? How are less restrictive alternatives searched for looked for, or evaluated if done? What are area level factors? What are neighborhood factors that might contribute to the rate of involuntary detention in two States that are neighbors or something, or in one state and different counties?

I could go on for hours and just identify, every single aspect of the involuntary detention and commitment process requires light. Just shed at least a little light on it. Every single area. 

JESSE: I spent the first 19 years of my life, never giving a thought to involuntary commitment. I never wondered why this practice is socially acceptable.

I never questioned who these laws are designed to help. I never thought about any of that until it happened to me. And now, no matter how much research I do, no matter how many people I interview, my voice will always be overcast by a shadow of doubt, because I am one of the people that it is socially acceptable to lock away.

S1 Episode 4: Perspectives Transcript

EPISODE TRANSCRIPT

JESSE: I have spent decades of my life trying to navigate society with a deeply ingrained, prescribed identity as a patient, that identity cultivated a belief that I was powerless. To try and better understand what that experience might be like for others I spoke to Marya Hornbacher.

MARYA HORNBACHER: I'm Marya Hornbacher, I’m the New York Times bestselling author of five books, four of which are on aspects of mental health and to some extent, mental health recovery. I've talked about eating disorders, bipolar disorder, addiction, and what I'm working on now is kind of a manifesto on mental health recovery and how it can be reframed and how psychiatry can work toward recovery for people who deal with mental health disorders rather than working toward continued dependence.

JESSE: I asked Marya about some of her previous experiences being voluntarily admitted to an inpatient unit for bipolar disorder. Specifically, I asked if she was aware about alternatives to an inpatient stay at the time when she was admitted.

MARYA HORNBACHER: I was not aware, uh, until I had, I mean, my last hospitalization for bipolar disorder was 2007, so I've not been hospitalized since 2007. At that time in 2007 and for the 10 or so years prior, I was in and out of the hospital, roughly every couple of months. And the expectation I had at that time was that I would skate along at kind of a sub par existence level and then I'd get sick again and I'd have an episode of mania or depression, and then I'd be walloped back into so, yes, voluntarily admitting myself, but also there were no mobile crisis psych units, there were no temporary housing options for temporary psych acute care. None of that existed yet, or if it did, nobody told me. And that's interesting to me now, because as I look back on it, historically, of course, those things existed. But if you report to triage and knock on the window and say, I have bipolar and they buzz you in and you'd go right on upstairs. I mean, you've got a straight shot up to the psych ward. If that is their expectation and they don't, you know, approach you with any alternatives and you're not aware of any alternatives yourself. I mean, when you're dealing with acute mania, or depression, or psychosis, you aren't Googling, how do I get better? You know, you're Googling, get me down off this, you know, I mean, just like, just get me out of here. And so that acute, that crisis model, I think really becomes a problem. 

JESSE: So that's almost two decades of inpatient experiences. How does that shape your ability to form an identity?

MARYA HORNBACHER: That becomes trauma. You know, I didn't have a diagnosis of PTSD, but now I do. And I'm afraid of hospitals, I'm afraid of doctors, you know? So over time, my ability to form an identity I think was shaped in part by, I am ill, this is who I am, and I've heard people talk in, um, like NAMI support groups or, you know, support groups for people who deal with mental illness. People talk about, they're like, I am my schizophrenia. I am depression. I am bipolar. It's so sad to me because I'm like, I am a teacher and a writer and a friend and an Ace and a daughter, you know, I mean, those are my identities now, but that is after a lot of work at reframing identity for myself, you know, really a lot of work to see myself as functional outside of an institutional setting. To see myself as a viable, like a viable life form outside of who's medicating me and what you know, control, and who's running my power of attorney right now. It became very, very repetitive and very sad to me. And eventually it stopped seeming acceptable to me that that was what I was going to settle for. 

JESSE: Was there a specific catalyst to this sort of reclaiming of your identity? 

MARYA HORNBACHER: I think there was, you know, it was interesting. I started doing research on a book on mental health right around the time the DSM-V was being formalized and critiqued, heavily critiqued by some very, you know, Interesting arguments that were saying, you know, there's no science under this. That's not strictly true, but there wasn't a lot of science under the diagnostic categorizations, right? So I started going, well, what if bipolar does have 17 subtypes? What distinguishes that? And I started going, what do I have? You know, if I haven't been in the hospital in a long time, what do I have? And I started looking at my charts and going, okay, they've diagnosed me with everything under the sun and I don't have any of these symptoms and haven't for a long time, what do I have? And I started going well, the science. You know? I remember, uh, there was a line in the New York times where somebody said the golden age of neuroscience is right around the bend. And I started doing the research on the neuroscience, I mean, my training is as a reporter and there isn't a golden age of neuroscience right around the bed. And there isn't any science underneath the diagnoses. They're entirely phenomenological. I mean, they are based on symptoms. So philosophically speaking, if I don't have the symptoms of bipolar, I am no longer bipolar. But bipolar is chronic. So shouldn't I still be medicated and I'll become bipolar again if I don't take my meds? Well, I don't take meds now, and I haven't had an episode of mania or depression in years, so was I never bipolar? 

I mean, that's the thing it's like, if we don't know the answers to those questions, there's a lot we don't know about who we're locking up and why.

JESSE: Marya’s experiences really resonate with me. I continue to struggle with how to claim an identity that I can be proud of after being told multiple times, by multiple professionals, that I am sick and an involuntary commitment was the appropriate action for someone like me. To try and better understand the perspective of someone tasked with evaluating the mental health of others, Committable producer Jim McQuaid spoke to psychologist Sasheen Hazel. 

SASHEEN HAZEL: My name is Sasheen Hazel, I am a clinical psychologist, I like to say forensically trained. Here in Massachusetts you're only a forensic psychologist if you're working in a certain place, so it's like a live status right now. I'm the clinical director at an outpatient psychiatric practice. I also work in a trauma clinic, we call it the forensic team doing essentially parenting evals, trauma evals, usually DCF or sometimes the attorneys involved in these cases. My place on the forensic team that I'm on, my specialty is sort of, I've evaluated a lot of mothers immigrating from somewhere in the Caribbean, which is my ethnic background, or somewhere in Africa.

And so I'm often having to explain through my report to DCF the layers of issues around just culture, coming from a collectivist culture, and parenting practices, and the community that person has here. What was their ability to continue those practices? Do they understand the more individualistic practices around parenting here in the U S? And what's expected? And then you throw in mental health.

And so I am often, as a black psychologist, more able to state that yes, there are cultural issues, but there's still a mental illness.

JIM: Really excited to hear a lot of what you said, because a lot of the conversations I've had with, I'm a sociologist, and one of the things that jumps out at me is how some clinicians focus really a ton on just the individual patient and a lot of times don’t think about the broader context, and in the course of your description you talked about the individual culture, the system and the community, and all these different layers that you're taking into account. 

SASHEEN HAZEL: I think that's why I like evaluation and not therapy, to be honest. And I came to this work, not because, you know, I don't have any long history of therapy or I don't have a dysfunctional, well, I mean, not necessarily a dysfunctional family, but more of a social justice, like, the reason I got interested, my parents were correction officers in the Bronx. And I remember take your daughter to work day. And I would go with my mom to work, she worked in the women's jail and you know, you have these stereotypes and conceptions of people in jail and what they’re like, what they're supposed to look like and act like. And so I thought I was going to be seeing these, like, you know, I was like maybe eight. I thought I was going to see these like negative people. And I mean, I was fascinated, but I was the total opposite. They were regular people. It just was a very humanizing experience. And I thought, I wonder how these people got here. I just became curious about that. And so that's kind of the line that I pursued. And so I've landed, luckily, fortunately, where I wanted to. I'm doing the work that I wanted to, but it hasn't been about therapy.

It's been more about making sense of people. And the reason forensic was an option is because I knew it would put me in a place to work with disenfranchised people who I felt had been possibly misunderstood, or maybe not fully understood. And so I do a lot, even when I do testing, just regular neuropsych testing, I often do long feedback sessions because I'm doing a lot of educating. Like self-education. I always tell people I could be wrong, but I just want you to understand how I came to this conclusion so that you can correctly and adequately describe that to the next person or, you know, so that you're informed because I cannot tell you how many people are misdiagnosed with like a bipolar disorder and really they've had a complex trauma history, early trauma history, or even some of the stuff around ADHD and, you know, people don't always take these things into context. 

On the flip side of that though, having worked in hospital settings, you have to make a judgment. You've got to put that first diagnosis down based upon maybe a 15 minute interaction. I did about a year of working on the Riverside crisis team right after I graduated and you have to decide, do they need a higher level of care? And what level of care is that? Is that inpatient hospitalization?

And there's a lot of insurance stuff, insurance authorizations, and finding a bed like there's a lot of red tape there. So you really have to have your reasons. 

JESSE: The red tape that people involved in these systems have to navigate is created by policy. Policy that is informed by research. But who is that research designed to speak to? And what voice is given to those who have to create their own path to recovery? Here's author Marya Hornbacher again, talking about the process of redefining recovery. 

MARYA HORNBACHER: I have really, for myself redefined recovery. So like, as I was doing that research into the science, or lack thereof, underneath it. I started finding myself way more swayed and interested in the oral histories given by people who dealt with mental health diagnoses. Many of whom started saying this is a very, very gross and blunt way of framing this, but psychiatry didn't do me any favors. What has done me favors is figuring out how to live, not how to stay safe. The kind of default to the least possible risk approach of psychiatry is problematic for anyone who's an artist, anyone who's creative, anyone who has a different approach to mental health recovery.

And so reframing recovery for me started being like, okay, you've had me on these meds that prevent me from finding words for 15 years, I'm a writer, I really fricking need my words. Like, I really do. And so going off those meds, suddenly I'm writing again, suddenly I'm creative again, and it doesn't mean meds are by definition bad by any means. But I kept saying to my doctor, when I was at my most acutely medicated, I kept saying, you know, I can't think, drive, or see anymore. And he's like, but you're not in the hospital. I'm like, no, butI can't leave my house, man. You know, I'm definitely not in the hospital, can't find the stairs. And so like that debilitating nature of that approach was what I eventually began to, as I started taking oral histories from people, they were like, what I found worked was clubhouse model. What I found worked was recovery oriented psychiatry. What I found worked was all of these models of meditation and mindfulness, the psychosocial approaches.

And I, you know, once I started looking at the numbers in that too, they just have better outcomes. They just do. I mean, the rates of people who recover or do better, who have positive outcomes in psychosocial treatments as compared to the people who are succeeding on one med. Like, it's not even comparable.

And so like, if we're looking at a model of biological psychiatry that assumes there's a biological origin, there's a biological treatment, we will continue to fail in this epic way.

JESSE: Did these oral histories change your perspective on the system as a whole?

MARYA HORNBACHER: The system as a whole, of course, that implies an integratedness or continuum of care that does not exist.

We would love it too, right? We'd love there to be like, you're in the hospital and then they hand you off to the social worker who hooks you up with clubhouse. We know that's not how it's happening. You know, you can't even get your meds at CVS when you leave the hospital half the time. So like the system is a term that is, I think, ambitious for what we actually have in terms of mental health care in this country. We have lots of intersecting systems, all of which are for-profit, and that's a problem. And so what I saw people doing was gravitating in their recovery toward places that would help them get jobs, find community centers, volunteer, get housing, get creative again. And so engaging in life in a really different way, rather than stepping back and being like I'm fragile, I'm broken, I'm inherently diseased and flawed like that. Mentally you will stay there. You know, you will stay there, but if people are like, okay, you may have this diagnosis, what do you want to do for a job though? And when people started going, Oh, I have all these skills. I was, you know, in a former life before I was living in hospital full-time I was an accountant, you know, I was a teacher, I was a stay at home mom, I was a yoga maniac, you know, whatever. So like, when I saw these oral histories with people who had returned to a sense of self that had been really blurred, if not erased, by the system of mental health, you know, care. 

JESSE: So it sounds like there's a really subtle but important shift there, which is that treatment is activity. It is doing something. 

MARYA HORNBACHER: Yeah. To me it's engagement. I mean, how many fricking pairs of moccasins are you going to make in OT? You know, I don't know how many pairs of moccasins I've made in my lifetime, but I assure you, I have way more fun teaching college. I really do. And that's what I do for a living. Right? So like, why wasn't anybody saying, you know, do you want to go back to work? Do you want to finish this degree? Do you want to do some research while you're here? You know, that's not what's happening. They're in there literally making me color.

I remember a great conversation I had with a doctor. This was so classic. This was practically One Flew Over the Cuckoo's Nest. I'd broken my arm and gone into the hospital on the same day. They send up an orthopedist to look at my arm. And I say to him, when am I going to be able to type again? And he's like, what do you need to type for? I said, well, I'm a reporter, that's what I do for a living. He goes, what do you mean you're a reporter? I said, I write books. I write non-fiction books. It's what I do. He goes, you don't write books. And the nurses like in the corner going uh, sir, uh, before you go any further here. And at that point I had four books out. Like three New York times bestsellers and the guy's telling me you don't write books. And then he goes, well, it's not like you have a book contract. I'm like, we're done here, sir. 

But I couldn't leave. Like, where am I going to go? Storm off down the hall in my hospital gown and hospital footies? The lack of dignity that is imposed upon patients and that patient identity that is so devaluing and so humiliated that we lose a sense of what is my core self? What do I love? What am I good at? What is my value? You know, how many times do you have to hear NAMI say the “burden of mental illness” before you're like, are you actually talking to mentally ill people? Are you talking to their families? Like, who are you trying to help? 

JESSE: How do you engage in a conversation where you can advocate for yourself when you do need to go to the doctor?

MARYA HORNBACHER: The trauma around hospitals and doctors for me is pretty stark, and I don't want to pretend that that's the case for everybody, but it is true for me. So like, how do I advocate for myself? I had a lot of really kafkaesque conversations with physicians going in and saying, okay, you have nine diagnoses, several of which are contra-indicated and you're giving me a med that's going to make me die. Can we not do that? 

Like, that's a stupid conversation to have. Like, how do I advocate for myself? It really becomes, I have to be so much more educated than the physician I'm talking too to prevent myself from being given meds that have literally put me in the ICU before. So like, what do we do? We retrain doctors. We retrain PAs. We retrain people maybe a little bit, but beyond that, I'm not really sure.

JESSE: In this conversation about identity, recovery, and navigating systems of care, I asked Marya if there is one thing. One thing that could click into place and get everyone involved in these systems on the same page.

MARYA HORNBACHER: To me there is the one thing, and that is recognizing that people with mental illness aren't crazy. They aren't. They may or may not have an organic illness, but they are dealing with distress, not delusion, half the time. One categorical diagnosis deals with delusions, one, the rest of the people are dealing with strong emotions, regulation of mood, impulsivity, like delusion is quite uncommon, actually.

And so like, when I'm dealing with an EMT, who's like “There there little lady” and I deck him. It's not because I'm out of control, it's because he called me little lady. This sort of, the paternalistic attitude. And so yes, understanding the law is important because I've had to explain to Occifers before that you can't arrest me for being mad at the way you're talking to me, that is not a crime, nor can you put me under a hold if I am not a danger to myself or others, that's a super basic law. So I've had amazing, I think, you know, I'll tell you, I think EMS and firefighters should win the award of awesome people of the year, because they are the only people who are dealing with you face to face. Like as a fellow human being, once you get into law enforcement, hospitals, doctors, the paternalism becomes so profound that it is intolerable, and it is unfair and laws get broken.

JESSE: To try and better understand the perspective of those who have just been given the “awesome people of the year award”, I spoke to Joshua Yeager.

JOSHUA YEAGER: I'm Joshua, I'm a physician assistant in Massachusetts working in cardiac surgery. Before I went to physician assistant school, I was an emergency medical technician and an ER tech, meaning I helped out doing vital signs and other tasks around the emergency department for four years.

JESSE: In episode one, I described the experience of being section 12, an experience where the opinion of one psychologist led to me being strapped into a gurney by EMTs and wheeled onto a locked psych ward. The memory of being escorted, with a smile, into a hallway where people in uniform are waiting to physically restrain me. That memory haunts me. So in order to better understand what those EMTs may have been experiencing. I asked Joshua about his experiences navigating section twelves as an EMT. Starting with the question, what is a section 12?

JOSHUA YEAGER: To me, what a section 12 is, is a “72 hour hold” or an involuntary psychiatric hold. So, uh, what we were taught was when we were responding to someone, or a patient who is section twelved, was brought to the emergency department. It was an involuntary psychiatric hold usually brought on by concerns from family or other physicians or friends.

JESSE: Did you receive any training to handle or approach a section 12?

JOSHUA YEAGER: If I remember from EMT school, we had a section about what section 12 meant. It was mostly focused on what our role was, not necessarily what the law was. So, what to do when you respond to someone with, uh, who was section 12’d and what the limits of how you can safely transport that person to the emergency department, you know, and basically how to navigate that scenario such that you could do so safely and kind of make sure to de escalate. EMT programs are pretty short. Mine was over a summer during school. So you can imagine how short the training was for. Uh, section 12 patient was.

JESSE: When you interacted with the community around someone who's been section 12’d, what was that experience like?

JOSHUA YEAGER: A lot of anxiety I think, especially when it was family members. A lot of guilt and, you know, there's an overwhelming desire to do what's right but whenever you take away someone's rights in this kind of fashion, it's very dramatic and scarring and it's, you know, I think no one ever wanted to invoke a section 12 on someone because it just felt unnatural. I mean, it always felt unnatural to me, the idea that I would forcibly restrain someone was always very disturbing to me. I don't think I ever really had to do anything that forcible, but knowing that that was something that could happen was certainly distressing to me. And I got that sense from a lot of families and of people I interacted with there too, that no one wanted to do this, but you just wanted to make sure someone stayed safe.

JESSE: Were you ever given any sort of techniques to, uh, prevent burnout? 

JOSHUA YEAGER: When I was an EMT, I don't think burnout was something that was talked about quite as widely as. You know, now it’s a bit more of a recognized phenomenon within medicine, especially within emergency medicine. I don't think it was this talked about it quite as much. And I got the impression from older emergency department technicians that I talked to, you just sort of did this until you literally couldn't anymore. The job in general, not necessarily just this specific type of patient.

JESSE: After your time as an EMT, did those experiences expand your awareness of mental illness in general?

JOSHUA YEAGER: Oh, for sure being an emergency department technician, you know, and being on the front lines of patients that would come to us with all variety of psychiatric illnesses really opened my eyes. I actually became quite friendly with a psychiatrist who I later worked with in one of the hospitals, we didn't work together, but I knew him.

So I got to know him pretty well. And I got exposed to a wide variety of mental illnesses that I, you know, previously had no exposure to. And it was really eye opening for me, especially, like I said, seeing how all the onus of treating these patients, a lot of times came to an emergency department that was not necessarily built to do that.

And I thought, you know, it really became apparent that I don't know why all this has to be done by the emergency department. There must be a better way to do this. And there must be a better way to either train emergency departments to do this better, staff them better, or do this some other way, because you know, someone trying to treat four different heart attacks at the same time, just can't possibly give the appropriate treatment to someone with, uh, you know, acute psychosis or any number of acute psychiatric illnesses. 

JESSE: Is there anything about this experience that you want to share? Any insight? Any awareness? 

JOSHUA YEAGER: I think in my emergency department days, I think seeing how the emergency department had to become the frontline for patients with acute psychiatric illness really didn't serve anyone. It certainly didn't serve the emergency department and first and foremost, it didn't really serve the patients in a very helpful way. I felt, you know, a lot of the times they would come to the emergency department because there was no acute facility for them to go. They would end up having to stay in a room in an emergency department, which I can only imagine to a patient probably felt a bit like jail, which I felt is probably the worst possible way to go about this. So I think from all my experience, treating patients with acute psychiatric illness that sticks out the most is that the system that has now just kind of come down on an emergency department, I don't think is providing the best possible care. And I think emergency departments have always tried to adapt to the needs of their patients because that's what everyone in the medical field does. They adapt to the needs of their patients. But I don't know if this is the best way to help patients. That was my takeaway experience when I left the emergency department tech. 

JESSE: The experiences that Joshua shared seemed to me to impart to some degree, the sense of being caught in a system, a system that can disempower not only those identified as patients, but also those designated to care for those patients.

I have spent two decades feeling like the road to recovery is a stealth mission, and the only way I can survive is to never get caught in that system again. Here's one last segment from the conversation with Marya Hornbacher about what resources she would recommend for someone trying to find their own path towards recovery.

MARYA HORNBACHER: Recovery research, uh, there are a couple of great centers. Like the psychiatric rehabilitation center at Boston university has a huge library of recovery oriented research. Not just like how to manage your mental health, but really looks at like, what are alternative strategies? What are psychosocial services and strategies that are effective for people with your particular diagnosis? 

Clubhouse. For me like the fountain house clubhouse model, the clubhouse international model to me is the one and only straight up effective approach to mental health care that exists. You know, I do think most folks need therapy, I do. Beyond that it is so individual, it is so cobbled together, we do need some coordination of that, but really, to me, a lot of it is reframing your identity and re-engaging with your community in some way. Those are the things that keep us well, not just people with diagnoses, but everybody else too.

JESSE: And the clubhouse model, that's a peer support type of model, right? 

MARYA HORNBACHER: It is, and it has nothing to do with mental health care. There's no therapy, there's no support groups. There's yoga, there's job training, there's data entry, there's a library, there's housing supports. You can clean the coffee maker. I mean, what it does is engages you in a community and gives you the option of figuring out where your skills are.

For people who deal with life skill issues, there's that. And for people who deal with like job re-entry issues, there's that. There's no kind of stratification of like high functioning/low functioning. You're all there and you're making the clubhouse work and that's it.

JESSE: In all of my experiences with commitments, both involuntary and voluntary, I felt constrained. Powerless to advocate for what I believed was the right thing to do. Hearing these conversations helps give humanity to all of the different perspectives of people trying to navigate these systems. And there seems to be at least one thing that we all agree on. 

There has got to be a better way to help people in distress.

S1 Episode 3: 5 Weeks Transcript

EPISODE TRANSCRIPT

JESSE: About two years after I was first committed, things had gotten worse, much worse. I had lost more weight and developed massive edema, which basically means that my body was producing a lot of excess fluid that accumulated in my head while I slept and then flowed down to my legs as I moved about during the day.

At one point, I ended up in the ER because my legs were so swollen with edema that I couldn't bend my knees and fell down the stairs of a bus. I went to my physician, Dr. Weitzman, to get blood drawn for tests. Primarily to try and figure out what to do about the edema. When Dr. Weitzman spoke with me about the results of those tests, he said that I needed to be admitted to a hospital immediately.

So I admitted myself to Cooley Dickinson hospital. Not long after arriving at the hospital, I was transferred to an intensive care unit because my potassium levels had dropped to 2.1. I don't have a lot of context to really comprehend what that number means, but from what I understand a potassium level indicates a significant risk of heart failure.

Here's my brother Tom, talking about what he remembers from seeing me at Cooley Dickinson.

TOM:  I remember at the time that you were in there, I had never seen you looking worse. I had never been more scared of how frail you looked, not just thin, but frail. Pretty much every time we visited while you admitted that things were rough, you always tried to play it like, you were like, 

“I'm okay, you know, I'm sure It'll all be sorted out soon. It's not that bad.”

There was like a mountain of denial. Whether you yourself were convinced of it or were trying to convince yourself by saying it, I'm not sure. 

JESSE: I admitted myself to the hospital on a Friday. I was transferred to the ICU by Saturday. By Sunday, my potassium levels stabilized and I was transferred out of the ICU and placed on another floor for medical observation. And on Monday morning, I awoke with a horribly fluid-filled face and looked up to see Dr. Weitzman sitting next to my bed, looking down at me.

Weitzman essentially communicated that he was worried that I might die and that he no longer wanted to be responsible for my treatment. So he had coordinated to have a psychiatrist come and commit me. He began communicating all of this literally within seconds of me waking up. And then he left.

Not long after Weitzman left psychiatrist Killian O'Connell arrived in my room holding up two forms; a conditional voluntary in his right hand and a section 12 in the left.

After a brief introduction, Killian held up the conditional voluntary and said, 

“Either you sign this one.”

He then held up the section 12, 

“Or I sign this.”

Killian then said that he didn't have time to wait for my answer, so he handed both forms to someone who had entered the room with him and said, 

“If he doesn't sign the conditional voluntary, then you sign the section 12.”

At the time I didn't really understand how a conditional voluntary worked, but I knew for certain that I never wanted to be section 12’d again. So I signed the conditional voluntary...and I have always wondered. I have always wondered, how is that allowed? How is it acceptable to walk into a hospital room, threaten someone with involuntary confinement and then leave before the ultimatum is even answered?

How is that okay? How is that legal? 

LAUREN ROY: Well I think it's misleading, it's coercive, but if they were to say, 

“If you don't say the conditional voluntary we could commit you.”

That statement would be true. 

JESSE: To try and better understand situations like this Committable producer Jim McQuaid spoke to Lauren Roy from the Mental Health Legal Advisors Committee.

LAUREN ROY: My name is Lauren Roy. I'm a staff attorney at Mental Health Legal Advisors Committee in Boston, Massachusetts. I have been working with the committee for a little over 17 years. 

JIM: Could you give a little bit of background about mental health legal advisors? 

LAUREN ROY: Sure. So, Mental Health Legal Advisors Committee is a state agency organized under the Supreme judicial court of Massachusetts. It's the only state agency of its kind. And our mission is to represent indigent clients in the Commonwealth that have mental health concerns and/or are perceived to have mental health concerns. So our phone number for our office is posted on inpatient psychiatric units. So we get calls from clients wanting to know about their discharge rights, their admission rights, their privileges, you know, all kinds of questions. 

JIM: So when people first reach out to you, I'm curious about the degree to which they understand the situation that they find themselves in, as well as their state of mind. 

LAUREN ROY: So, I don't think people are commonly aware that when you go into a psych unit, the doors are locked, that you're not free to leave, right?

This is why due process rights trigger. This is why you have a right to an attorney. You know? So, clients used to say when we would bring them up to the unit when I worked in hospitals and clients still say this now, some are shocked by that. They're shocked that the doors are locked. They thought it would be just like any other hospital unit. And they get initially very, very scared. And it is scary, right? I think it's not like going to a medical floor cause you broke your ankle. You're not able to just get up and leave if you wanted to. You know, that's why we get a lot of calls. We get a lot of calls on that initial admission process because a lot of the papers that the clients sign, they don't really understand what they're signing for the most part. The papers are thrown at them and even if they're explained to them, even if they're witnessed by people, which they all have to be, the clients, you know, they're overwhelmed at the time. And in some of their mental status may be off anyway. So it's just a really hard time for them to understand. And they have several papers to sign, not just the legal papers. It's, you know, the regular hospital admission, it's like a stack of papers at once that they need to look through. And our frequent call is about, 

“I don't know what I signed. I don't know what status I’m on. I don't know if I'm here voluntarily or not.”

And a lot of people think they're there against their will, even when they're there on a conditional voluntary because they felt like they didn't want to be there. So you'll frequently hear people who say, 

“Oh, I signed conditional voluntary but I don't want to be here. They told me that if I didn't sign this they would commit me.”

JIM: So when people reach out to you, they're reporting that they're sitting in this room with all these papers. They're scared, they're overwhelmed and someone on the staff tells them, 

“Either sign this or we're going to commit you.”

LAUREN ROY: Pretty much, or we'll hold you under section 12, which will follow the process of committing you.

JIM: So that just really jumps out at me is, is that legal? 

LAUREN ROY: We're not there during that time, right? But that's what people have reported sort of goes on and you know, I've seen it go on that way. Cause you can't be on a hospital unit without being on one or the other. Right? So you're either on a section 12, or a seven and eight if you've been committed, or you're on a conditional voluntary. Okay. So it's either/or and I think it's presented to clients that way. Is it legal? No, but I think it's somewhat true if they say it that way, but it's not giving them the full picture, 

JIM: But it is illegal to present things that way?

LAUREN ROY: Well, I think it's misleading. It's coercive, but if they were to say,

“If you don't sign the conditional voluntary, we could commit you.”

That statement would be true. 

JIM: I'm just curious what the implications are for using the term “voluntary” at that point. 

LAUREN ROY: I know, I think that that's hard and it's called a conditional voluntary for that reason because it's conditioned.

JIM: But does the person in the situation where they're confronted with commitment, is there somebody there that sits down and explains things to them? 

LAUREN ROY: Whoever's signing the paperwork is the person who should be reviewing all that.

JIM: Should be?

LAUREN ROY: Yeah, and when you ask people, our clients will say that they never heard that, or they didn't really explain that. You know, we get complaints about that all the time. 

JIM: So in theory, there is supposed to be a person who's explaining all of these rights to them, but that doesn't happen all the time?

LAUREN ROY: Right. And that's very hard to monitor, right? And even harder to prove. Because the psychiatrist is signing off saying that they've done it but we know from the outcomes and from what clients tell us that whatever was said, it wasn't said in a way that they understood it, which is why people call us. Right?  And then you have the human rights that trigger once you get on the unit, which we have six fundamental rights now in Massachusetts. 

JESSE: Here is Committable Contributor Michelle Stockman with the six fundamental rights of persons receiving services at inpatient mental health facilities in Massachusetts.

MICHELLE STOCKMAN:  Six fundamental rights of persons receiving services at inpatient mental health facilities in Massachusetts. Prepared by the Mental Health Legal Advisors Committee.

The right to reasonable access to a telephone to make and receive confidential calls the right to send and receive sealed unopened uncensored mail. 

The right to receive visitors of your own choosing daily and in private, at reasonable times. 

The right to a humane environment, including living space, which ensures privacy and security in resting, sleeping, dressing, bathing, and personal hygiene, reading and writing, and in toileting. 

The right to access legal representation. 

The right to reasonable daily access to the outdoors.

JESSE: After I signed the conditional voluntary I was confined to a wheelchair and wheeled into a psych ward with the distinct, and now familiar, “click” of magnetically locked doors shutting behind me. My mother found me on that psych ward, not long after I was wheeled in. Here's what she remembers. 

JEAN: I remember going to the psych ward. I've thought a lot about that day and that image. Walking into that locked ward and seeing you sitting there in a wheelchair on the side and the tears are streaming down your face. And I know there's nothing I can do. I want like hell to grab you and run out that door. And I know they're not going to let me, and then trying to figure it out and trying to talk to Kilian, fucking asshole. I'm trying to explain to him some of the stuff we were already doing and this and that and he's just looking at me like, 

“Yeah, little girl.”

And he totally ignored everything I had to say. And I couldn't do anything. 

JESSE: Those tears that she saw were from fear, from feeling helpless, and from confusion, because I didn't understand. I didn't understand, why did this happen again? 

I went to Dr. Weitzman because something was wrong and I wanted to work on it. I asked for help. And when he said that I needed to go to the hospital, that's what I did. I admitted myself. I complied with treatment. So what happened? At what point in all of that did involuntary commitment become necessary?

Here is Committable Contributor Brian Patrick Williams, reading an excerpt from medical records written by Dr. Weitzman on the day that he told me that I needed to admit myself to the hospital.

BRIAN: History and physical, Robert Weitzman MD, January 11th, 2002. Assessment, severe anorexia nervosa with hyperkalemia, hypernatremia. Plan, will admit. Will recheck labs. EKG. Psychiatric consult will be obtained. I do think that once his electrolytes are normalized, psychiatric admission is appropriate. 

JESSE: Dr. Weitzman asked me to admit myself to the hospital and began coordinating to have me committed before I ever got there. I was on that psych ward for five weeks. As part of my treatment I was confined to a wheelchair. I saw violence between patients. During mealtimes I was forced to sit alone, in a hallway, in front of the nurse’s station. I was committed for anorexia but multiple times logistical errors resulted in me sitting alone in that hallway without being given any food while every other patient could be heard eating behind me.

And when meals did arrive Kilian and the dietician had decided that, 

“The patient was put on a restrictive plan to decrease his use of calories, to help him gain weight.”

I don't really know what that means, but I do know that they intentionally restricted my caloric intake and then threatened to strap me into a stationary chair and insert a food tube when I didn't gain weight on their plan. I spent five weeks on that psych ward, and when they finally let me go  I was given a bill saying that I owed the hospital thousands of dollars for involuntary treatment. 

I understand that there were legitimate, serious medical concerns when I admitted myself to that hospital. I can understand that Dr. Weitzman probably felt somewhat powerless to really help his patient. I can understand that Kilian probably perceived what he was doing as ultimately being in my best interest. But what I don't understand, what I have never understood. Is if you see a patient who voluntarily asks for lab work, voluntarily admits themselves into a hospital, agrees that they need help, agrees that they need to gain weight.

How do you see that patient and conclude that manipulation, coercion and an involuntary commitment are the appropriate response? How do you do all of that and actually believe that you're helping?

To try and better understand this type of situation, Committable producer Jim McQuaid spoke to psychiatrist Paul Puri. 

PAUL PURI: My name is Paul Puri, I'm a psychiatrist in private practice in Los Angeles where I do medication management and various kinds of talk therapy. I have an assistant clinical professor position at UCLA where I teach residents how to do therapy. I write for TV. I have a mental health tech startup company called “Ootify”, which is trying to sort of create a centralized, supportive mental health-like space where people can connect to resources wherever they are in the mental health spectrum. So, a lot of stuff that we're doing. 

JESSE: Jim asked Paul about what it is like to be a psychiatrist, someone who has to decide whether or not to authorize an involuntary commitment. 

PAUL PURI: It's a mixed bag and most psychiatrists acknowledge it's a mixed bag. You know, we all go to medical school, some people specialize in surgery and we specialize in the brain and mental health.

And most people didn't go into that with the plan or desire to, you know, involuntarily commit people. Most people are very patient aligned and had intention from an early point in life. But then when you get into training and you work in hospitals, the state has sort of handed this responsibility to the hospitals and the psychiatrist on staff to make these decisions.

And so it becomes an individual versus States' rights kind of thing. Where the States and the psychiatrist as a proxy is deciding that this person can't make decisions for themselves, or that at least they're justified to hold them to decide on that point for a little bit and have a period of observation.

JIM: So, the responsibility comes from the state? 

PAUL PURI: Yeah, state laws are a little different, you know, I'm here in California and we have a 72 hour civil commitment called a 5150. And then there's a 14 day follow up, if you apply for it, which, um, the 5150 basically is kind of a free pass. There's no hearing. A 5152, there's a hearing that has to happen where the hearing officer and the patient gets an advocate, their own kind of lawyer. And then that's a 14 day hold in addition to the three. 

JIM: So when you say, 

“If you fill out the 14 day.” 

That means the psychiatrist?

PAUL PURI: Yeah, though, actually, um, sometimes it'll be filled out by other people. So like, you can actually have the applications filled out by police officers and then in California Park Rangers can actually do it.

Emergency physicians sometimes do it because they're the first pass in terms of evaluating people, but then typically the psychiatrist has to sign off on it because they're the ones bringing them into a psychiatric hospital. 

JIM: When you say the state has handed this responsibility, is this an imposed responsibility? Is this something that the field would rather not have on its plate Do you think?

PAUL PURI: It depends on who you talk to. There are some psychiatrists who I know, who are friends, who are much more libertarian and they sort of take the view of like, the comparison I'll make is if people have the presence of mind to want to kill themselves and complete a suicide, then they should have the freedom to do that.

And, you know, there's others who sort of take the stance that basically we're dealing with brain disorders, is the alternative sort of point of view. And that these brain disorders can distort people's judgment because it distorts their thinking. It distorts their emotions and distorts their impulsivity, or impulse control. And so when you put those kinds of things together, you can get people who do things that they might regret. As well as with people with what we call thought disorders, psychotic disorders, it can distort sort of their, their senses. So they may be hearing things that are very detached from reality and maybe acting on those misperceptions or hallucinations.

And so those kinds of things, for lack of a better term at this moment, put someone not in their right mind. And so they need a sort of a substituted decision-maker. And so that sort of is put on the shoulders of a psychiatrist temporarily, and then generally, if there are people who have much more persistent problems they may end up being in a position of what's called a conservatorship here in California. Where someone, you know, might be committed for up to a year, or have the rights taken away for a year, a judge takes that away. And then the judge makes other decisions such as whether they can own a handgun. They can actually have their voting rights removed, which is kind of extreme I think. So there's a lot of stuff that goes kind of, the more someone is thought to not be able to take care of themselves. 

JIM: So, if you're in a position where ultimately you're the one who signs off on a form, whether it's you or some other theoretical psychiatrists out there. It is a massive decision in the sense that to commit someone is to take their rights away on the one hand. But on the other hand, you know, you could be facing someone potentially killing themselves or committing other sorts of acts of harm. So, it's a very high stakes decision no matter which way you go. What is, just for you, that experience like? Not how you make the decision, but just, what does it feel like to be in that position?

PAUL PURI: In the beginning it's really uncomfortable in various ways. One of which is like, I never really wanted to be in that position and not just because of the stakes and like the fear of making the wrong decision. But it's sort of the degree to which it becomes a paternalistic system in terms of you as a proxy or an agent of the state, sort of making this decision to take away someone's rights temporarily. That's not something that I particularly identify with. But then as you get to see the degree of what we sometimes call psychopathology, which is, you know, the different ways that people can manifest a mental illness. You really see that some people do need the help, and they do need the protection.

When someone is really in the throws of a serious psychotic episode, letting them stay on the street is really, it's kind of neglectful. And they need more help unfortunately, then they may be able to accept at that point. If you get into more of the sort of theories around psychosis, there's things like the kindling theory, which is that the longer you let psychosis go untreated, the worse it can get there's variations and counter opinions to that. But there is some serious evidence to support basically like intervening earlier with people in that situation. 

JIM: So that seems like it would make the process even more difficult because the idea is that rather than just intervening when a person is at the point where they're at this crisis, there is this pressure to intervene before that point.

PAUL PURI: It's all going to vary by state, in terms of the room you have to intervene as things are getting worse. But generally, at least in California, we side much more on patients' rights. The courts and, and in my own experience with hearings and dealing with this, you generally really have to have someone who's relatively in the throws of an illness. That threshold is pretty high to hospitalize someone. For example, if someone has a plan to complete suicide in a month from now, you can't actually hospitalize them or you're not supposed to be able to, I'm sure there's people who circumvent the law or, or press the boundaries of that, you know, or they'll say, 

“You know, I'm going to do it five years from now, or I'm going to do it if these jobs don't work out.”

Or whatever the thing is, you can't actually preemptively hospitalize someone because what are you going to do? Keep them locked up for years on the possibility that something happens? The system isn't designed that way. I mean, it's hard enough to get insurance to pay for someone to stay in the hospital a week, let alone a month or longer. So, the threshold is pretty high. 

JIM: Is there an official threshold in California? Is there a standard? 

PAUL PURI: The criteria on the forms is basically danger to self, danger to others, or what we call grave disability, which is inability to manage; food, shelter, clothing due to a mental illness. And so the threshold in terms of danger to self is generally considered to be sort of an acute threat in both of these, an acute threat to self or an acute threat to others.

Again, Is there some room for interpretation with that? Generally it's in the situation. So, if someone has written a suicide note that's considered acute enough. If someone is saying they may do something in the future, that's generally not. And so it's kind of in the present situation is sort of the threshold.

I'm sure there's a proper, I'm not an attorney, let me see how to put this as a non-attorney from my understanding, I took a forensics course once, in terms of forensic psychiatry, and basically there is, there are decisions that can be made in different types of courts based on like reasonable doubt is a comparison. And basically these things end up breaking down to sort of percentages actually of evidence. And so I think that the threshold gets higher in terms of proof. As you get further along within the mental health system. So the degree of proof that has to be made to conserve somebody and put someone on a conservatorship is much higher than it is to say, do a 72 hour hold. And especially because the 72 hour hold is much harder to sort of challenge by the time you get into the courts, like a day or two could have passed. And so if a patient has a lawyer, for example, they could do like a writ of habeas Corpus or something to try to challenge and get themselves out immediately.

JESSE: The relationship between psychiatrist and patient is sometimes viewed as oppositional as individual versus States' rights. I think this perspective can be applied to both sides of the relationship. The psychiatrist as an individual with a very focused type of training is interacting with the legal authority given to them by the state and the patient who is not necessarily a type of person, but as better defined as a person in a particular type of situation.

The patient experiences, the legal authority exercised by a psychiatrist through the buffer of legal protections, granted to patients by the state. So in theory, there is a balance legal authority and legal protection. Unfortunately, in my experience, it doesn't really matter what legal protections I have.

If the psychiatrist attempting to commit me, isn't aware of those protections. Here is Steve Schwartz from the center for public representation, discussing some of the complications that can arise when people involved with involuntary commitments have different understandings of the law. I think what you often see is.

STEVE SCHWARTZ: And this is a common problem in all mental health legal interactions, whether it be around drugs and involuntary treatment or hospitalization or anything else, is that all go conceptually, there are three separate findings that have to be made and each finding is. Independent and distinct. Does the person have a serious mental illness?

Is the person a serious risk to themselves or to others or unable to take care of themselves? And three, is there a less restrictive alternative? What you often see is that. Instead of being three independent findings that they become intertwined and interdependent. You see lots of situations where what's really happening is they're starting at the back issue.

The person has no place to live. They're homeless. Uh, they're not willing to go to a certain shelter or something else like that. So there's a concern that there's no alternative, meaning no safe place for them to even sleep. So that shows that the person's not able to take care of themselves. So you, you meet the third standard and you meet the second standard cause you can't take care of yourself.

And if you can't take care of yourself enough to even know like where to sleep or where to eat, that must mean you have a mental illness. Cause you must be confused and disoriented. So although the law reads, you go in the opposite order. So if you don't find the person has a serious mental illness, you don't ask the next question, because if they don't have a serious mental illness, even if they were dangerous to themselves, you know, because they had a terminal illness and they were not willing to continue to you don't take cancer treatment.

But they were quite mentally capable, but they said, you know, I just kinda had it. I'm going to in my life or not take this or not do that. That person should never get committed because they don't have a mental illness. They may be dangerous to themselves. They may be in that sense, in fact, articulating an intention to take their life, but they're not mentally ill.

They wouldn't get, shouldn't be committed. 

JESSE: The law is often viewed as separate from the relationship between patient and psychiatrist. But when it comes to involuntary commitments, the law is not separate from the conversation, the law is the conversation. Because without the law, I simply say, 

“No, thank you.”

And get to go home. 

Here is committable producer, Jim McQuaid speaking with psychiatrist, Paul Puri again. 

JIM: And so when you are in the position where you are in the presence of someone who may fit into one of these three categories; danger to self, danger to others, or grave disability, what's that decision making process like? How do you go about assessing a person in a situation?

PAUL PURI: Those are pretty different situations, and it depends on the context. So I've worked in private hospitals, academic, VA, as well as some County facilities, County emergency rooms, County urgent cares. And basically those sort of end up creating situations on how someone is presented to you.

So one version, let's say I was when I was working in a County ER, is pretty common. Is the police bring someone in and so they'll bring someone in they'll fill out the basic paperwork and their situation might be a person was running in traffic, screaming at traffic without any clothes on, and then shouting about God.

And so, you know, they're not mental health professionals, but they say this person seems “crazy” to me. And so we're going to bring them into a psych facility for evaluation. What our job then is to do an assessment of the degree to which the person can communicate and degree to which we can get information about them to understand what's going on.

And so that might mean that this person is intoxicated. They could be on meth, or cocaine, or something that can cause hallucinations. So we're going to get a toxicology. I'm going to talk to them to the degree to which they'll talk back to us and answer questions. And then if we have collateral sources, we'll try to get those.

So we’ll see if we can get ID on them, and if we can talk to family members or friends, we'll get that information so we can get a fuller picture and then sort of decide. Based on all this information, is this a problem that is actually impairing their ability to take care of themselves?

So, you know, you could make an argument in that case for danger to self, because they're running in traffic. That's dangerous behavior. Was it intentionally to hurt themselves? We'd be trying to determine that. And then inability to manage food shelter, clothing would be made as an argument that they're not dressing themselves in public, that they're running around naked.

So that would be an argument for that aspect of grave disability. So was that based on a psychotic process? Such as, I had a patient who used to run around naked because he thought he could escape the devil faster. That way you'd be faster without clothes on. That was his thought process which had an internal logic.

JIM: Yeah, it makes sense, there's a logic to it. 

PAUL PURI: Exactly, and that's true with most psychotic disorders, there is an internally consistent logic. So basically, is this something that is temporary and that can be treated, you know, immediately, or that will abate as their intoxication goes away? Or is this more of a persistent problem such as schizophrenia, where we have concerns that they're going to need a longer period of hospitalization or at least a longer period of observation.

So sometimes we're in a position of not knowing, you know, we're acting on incomplete information. They're clearly psychotic. They won't answer any questions. Their urine toxicology was negative. We can't get any other information on them. Okay. We're going to need to hold them for a few days to try to figure out what's going on.

Give them maybe a little bit of an anti-psychotic if they'll accept it, and then see what happens. So that's sort of a process for that danger to self and danger to others are their own unique situations because danger to self is like, who decided that they are there? Did a family member have concern about them?

Did they bring themselves in? We get people all the time, and I don't work in the hospital full-time anymore I just consult or teach, but people will come to check themselves in and they'll do it on these very loose terms. Such as,

“I'm worried I'm going to do something.”

And so it's very sort of incomplete. And generally, if those people are hospitalized at all because there's usually bed shortages at hospitals all over the country, then they'll get admitted voluntarily, not on a hold involuntarily. But then, you know, sometimes people will get brought in because they are planning something, but they're denying it.

And so, you know, you get all these variations and situations. And so if you don't quite know, so let's say somebody got brought in with an overdose, but they denied that they actually tried to kill themselves. They said, 

“Oh, I only wanted to go to sleep, but I did take 20 sleeping pills.”

Now we're in a situation of saying, okay, That doesn't quite seem plausible. It's concerning. I probably need to hold this person to evaluate longer and maybe to medically stabilize them too. So I'm going to hold them to try to get more information and see if they'll open up about what happened. But there's enough evidence here that they took 20 pills and not two or three that I can say, okay, this is worth hospitalizing, someone for a few days, for further observation to see, are they going to try to do something else to hurt themselves?

And can we try to get to, is there underlying depression and things like that. 

JIM: When you are in the position to make these kinds of assessments, do you feel self-doubt sometimes? Do you feel relentlessly confident? I mean, what's the experience like  just for you? 

PAUL PURI: I'd say it varies.

So sometimes, you know, you say like, this is what the law was written for. This is a slam dunk sort of situation. It's very clear that they need to be held. And sometimes, you know, the patient will challenge that. And they'll get a hearing and you'll lose. Even though you think it's a slam dunk, like it's so obvious that this person isn't together. You know, they're paranoid and they've been building, you know, a shelter inside of their apartment to shield themselves from microwaves and aliens and whatever else, but they're really articulate.

And so they're able to convince like a judge or a court advocate that they shouldn't be held and they win. So sometimes feeling that you’re right doesn't really matter. And sometimes there's situations where you say, I really am not certain, but I think there's a danger here. If I let this person out right away, there's too much uncertainty.

And so I'm going to hold, in California the 72 hour hold is intended to be an observation period. It's intended to sort of gather more data to really see is this person ill enough that they need more help from the system? And where they can't take care of themselves, or that they're a danger. There's a lot of uncertainty that can happen with this.

And sometimes you talk it out with colleagues and sort of get their perspective on it and try and get also like, are other people on board with this? So sometimes the family is really in support of it. That can sort of help your case. And sometimes the family really wants to take them home and sometimes that'll soften the decision and say, okay, you know what? I think I'm okay sending them home because there's 15 people that are going to be watching them. So if they need to be brought back in, they will. And sometimes the family is very encouraging to bring them home, except they're very naive and they don't really understand what they're dealing with. Those cases could go either way.

JIM: Seems like the role of the 72 hour period and the potential 14 day periods are a combination of crisis management, observation and preparing the person to reenter life. It sounds less like there is a focus on, god, I hate to use this term but for healing the patient or it's, you know... 

PAUL PURI: Yeah, the system is most definitely not designed for really creating a healing environment.

I mean, there are exceptions to that and you know, if people are in sort of private pay situations, if they can pay out of pocket and they go to, you know, Sierra Tucson or one of these very prestigious places, then they can go for months at a time. And then basically you are able to sort of address like deeper issues and really manage it.

But the larger psychiatric hospital system isn't really designed for that anymore, which is a really lamentable thing. I have a mentor who, he said, 

“You know, back in the day…”

This is like the sixties.

“...you know, we could put someone in the hospital and insurance would just pay for it for months and you could really get somebody better and we wouldn't have to worry about how long we can keep them and all of these other issues.”

It's not really designed to deal with the deeper problems and really heal the person or get them all the way back to whatever we want to call normal. I don't even use the term normal, but... 

JESSE: To understand where we are in this conversation about involuntary commitments, it can be really important to understand how we got here. Here is Steve Schwartz again, discussing some of his experiences working as an attorney focused on mental health law in Massachusetts. 

STEVE SCHWARTZ: So it's important Jesse, when we started our work, which was in the early seventies, many States had no provision at all for what was called emergency detention. In fact, they even had no serious protections for long-term commitment. But as a result of some civil rights cases that were brought in the late sixties and the early seventies, that you could not deprive a person with psychiatric disabilities of their liberty without a hearing, without a good reason, without the right to a lawyer.

States began to reform their laws. Massachusetts was one of the first to do so and when it did it, it actually required a fairly in-depth process and a pretty rigorous standard for long-term commitment. Long-term commitment was for six months or a year or longer, which was novel across the country because there were no protections in many, many States.

So Massachusetts was one of the States that set up these more rigorous standards and procedures to safeguard the inappropriate deprivation of freedom. 

JESSE: When Paul recounts a perspective from his mentor, that in the sixties and seventies  psychiatrists could keep people in hospital for long periods of time and really focus on getting that person better. From a certain perspective, that could be true. 

But from another perspective, In the sixties and seventies people could be held in hospital for psychiatric treatment for potentially indefinite periods of time, because there were virtually no laws protecting them. This perspective could also be true.

But when it comes to a difference of perspective, this is not a debate. 

This is not a simple disagreement. 

Because when it comes to involuntary commitments one side of the conversation has virtually unchecked legal authority to detain the other. 

Here's one last segment from the conversation between Jim McQuaid and Paul Puri. 

JIM: This is the fascinating, but also it seems like an impossible challenge, that you guys face is that you are making decisions based not on what's actually occurring in the person's head, but what signals are they presenting? Right? So, somebody is composed. Then they have that social skill cause they know how to navigate the situation. They know how to hide their symptoms versus someone who isn't composed and doesn't have those capacities. And so to see past the mask, or to just the parce out the signals that you're dealing with…

PAUL PURI: in some ways it seems very subjective, I would imagine, to other people. And there is a degree of subjectivity to it, absolutely. But I think, you know, we aren't mind readers, but the more sort of skilled you get you can get better at sort of pattern recognition and understanding what certain patterns mean.

I have seen psychiatrists who get a little too cavalier with that in terms of assuming that something means something about someone's internal state when there are alternative explanations. But generally what we do is something called the mental status exam. Which is sort of what we call the psychiatric equivalent of a physical, and that looks at various domains of someone just on an interview.

So there's; appearance, behavior, attitude, speech patterns, thought process, thought content, insight, judgment and cognitive functioning. And so you're looking at all of these different domains for signals about, you know, based on the clinical picture and everything else to sort of be suggestive of something.

And so what we're looking for is sort of inconsistencies, or consistencies, with the story. What supports it and what goes against it, based on the observations and certain things fit into certain patterns. So someone's saying that they, you know, have a million dollars in the bank and that they live in a big mansion, but they're like in totally disheveled clothes. And apparently haven't bathed or showered in like two weeks and are rambling periodically. There's an inconsistency there with their story. And so we're looking at how things fit or don't fit together to try to make sense of it. 

JIM: And what about the environment itself that the patient finds themselves in?

PAUL PURI: So, they enter into this situation and they are confronted with all these other people who are committed as well. It's an unfamiliar environment. I'll give different perspectives on it. Hospitals do what they can in terms of trying to create a relatively comfortable environment. So, whatever, like pleasant lighting and painting and all of that stuff.

But from the patient experience, yeah, it's terrible. Because they're going into an environment typically they don't want to be in. They're being held against their will. They can't leave. Generally most psychiatric hospitals that I've seen, and bigger ones are different, they're a mixed population.

And so you have a mix of all of these different psychiatric populations together. So you have people who are depressed, next to people who are hallucinating, next to people who might be having alcohol withdrawal or various other issues, or be potentially, and we generally don't try to, but they could be psychopathic. Which could be people who are dangerous in that way. 

And generally we shouldn't be hospitalizing people who are psychopathic, but that in the acute sense of someone who is threatening other people, sometimes they do end up in hospitals for various reasons. 

So, basically, if you're a depressed person that's really scary. Like, it's incredibly scary to go into that environment. If you are psychotic and paranoid, you're already scared. Generally people are, you know, in that state of mind, that's a scared state of going into the world and you're going into this environment that's unfamiliar. So no, there's nothing necessarily conducive about it, but there's a mix of constraints here. And I assume you're going to get into the deinstitutionalization and, you know, starting from Reagan, because there's sort of a sociological component to that in terms of defunding hospitals and that had a big impact where as there's less and less funding the systems have only room for basically this crisis management and it's not really in any way designed to accommodate the individual patient's experience and what's best for them.

JIM: I guess my last question is just, is there anything that we haven't talked about that you think I should know? Or that we should know? 

PAUL PURI: I appreciate that Jesse's had like a difficult experience, and I don't know his particular background or reasons for it, and I'm sure I'll hear it on the podcast. But I've had to do work with people who were willing to come into therapy to sort of repair their relationship to mental health afterwards. And sometimes it's really sort of tiptoeing because I mean, I had a patient who had very severe bipolar disorder and he was traumatized by being hospitalized against his will and had so much anger at the system because of it and very understandable, like, it felt horrible for him, but he was also doing incredibly dangerous things.

He put himself into situations where he actually got very physically hurt because he was manic, you know, he was driving recklessly and, you know, his family was very concerned about him and he only got hospitalized once. And then we found ways to work around it without him having to be hospitalized, but it was pretty understandable, his perspective, and yet still necessary for his own protection.

And that sort of quandary that even though we are sentient, aware beings that seemingly should be able to make all decisions for ourselves, that our own brain can betray us. Our own senses can betray us. That we can't know and see everything the way that we think we can and that sometimes other people might see better than us. That we all have blind spots basically, is a tough thing for, I think, all of us to reconcile. 

JIM: The way you phrase that I think applies, he is pretty suspicious of things like therapists and getting treatment and things. Whereas I have encouraged him to. I see a therapist and all that. But yeah, I know that kind of lingering effect is there. And I think some of what you said, I think he could find heartening. 

PAUL PURI: I think it's just a matter of, hopefully he can find someone that he can trust and if you can build that relationship, then it can go from there. 

JIM: Right. Right. Exactly. 

JESSE: The last part of this interview has stuck with me.

If you have asked for help and been harmed by the treatment you received, how do you repair that relationship? How do you feel safe asking for help again? 

What options do you have when you know, for certain, that you are committable? 

S1 Episode 2: Going Home Transcript

EPISODE TRANSCRIPT

JESSE: I have spent the past year sifting through medical records to try and understand what happened on the day I was section 12’d. While I have found several pages of records and results from other hospitalizations, I've only found one paragraph from that day. Here's committable contributor Brian Patrick Williams reading the only medical record I have from the day I was section 12’d.

BRIAN:  Psychiatric admission note, October 13th, 1999, Paul Hayley MD. A 19 year old male referred by UMass for treatment of anorexia nervosa and adjustment disorder with mixed emotional features. The patient presented to M-5 and then immediately refused to sign into the hospital. He was therefore not formally admitted.

I spoke with the father at length and he would not agree to have his son in the hospital and the son was requesting discharge and did not meet criteria to be held in the hospital against his will. Technically the nursing staff never received admission orders regarding this patient and he did not consent to the admission although he was brought onto the psychiatric floor. He was evaluated by the crisis service extensively and then discharged and those notes are available from the crisis service. 

JESSE: When Dr. Bynum initiated the section 12 process, there was some aspect of that process that was mishandled or left incomplete but to the staff that received me at the psych ward, all they saw was a new patient. A new patient that they assumed was at risk of serious self harm.

I was only there for a few hours and how I got out was not due to any brilliant legal action, it wasn't because I was brave, or because I made a compelling argument. I got out because my father showed up and he understood the law well enough to make it very clear that he knew they were violating my rights.

Sometimes simply having someone present, someone who isn't a patient but can witness how the patient is being treated? Sometimes that is all it takes for patient's rights to be respected. 

So in some ways I got lucky. This could be seen as a good result. 

So why have I been trapped in a cycle reliving these experiences every day for over 20 years?

What happened when I left that psych ward? 

Here's my mother Jean talking about what she remembers from that day. 

JEAN: Okay. Before you went to the UMass health services, I mean, I was aware of mental illness, but I honestly didn't see you as mentally ill. I saw you as somebody who knew you had some issues with, um, eating and that you were paying attention to those and that you were trying to do the best you could do.

You would exercise but you also ate. And we were talking a lot, the two of us, and then that day happened and that all changed. 

When you came home, when dad got you out and brought you home, it was like a different person walked in the house. You were suddenly rigid. It wasn't okay to really hug you and touch you. Forever after your behavior in my mind was changed because it was such a shock and it was such a shock to me too. I mean, the whole thing didn't make any Fu...didn't make any fucking sense. Okay. Sorry. 

JESSE: You can swear.

JEAN: That call that day and you were crying and I'm trying to figure out what's going on. You had told me you were making this appointment to go in and ask for help.

So what's going on with this? Why aren't they giving you the help you need? 

JESSE: So when Bynum called you, what happened? 

JEAN: What happened was, um, basically I was in shock and I tried to ask questions because then I think he put you on and you were crying. There was some point at which you were crying and I'm like, I just didn't understand what was going on.

You'd gone in to ask for help. Yet, they didn't seem to be helping. And there was some point I think I actually knew at some point during the day, Tom said to me,

“But they haven't given him anything to eat except for a juice box.”

And it was like, well, why aren't they giving him something to eat then? I mean, if they're so concerned, why aren't they feeding him? And I never got an answer for that. 

JESSE: I may actually have an answer for that. I was diagnosed with anorexia, told them my weight was so low that if I moved too much, I might die. Then kept at health services for over eight hours without ever being given food. Dr. Weber and Dr. Bynum have both stated that I was offered food and refused it.

What I remember is being offered food and responding by asking to speak with the nutritionist to hear what she recommended I eat because clearly I wasn't making the right choices on my own. 

My response was met by an awkward smile and some comment about going to see if the nutritionist was still around.

My older brother, Tom was there with me that day. Here's what he remembers. 

TOM: I remember the physician coming in and you basically saying,

“Should we consult a nutritionist first?” 

You know, what's your opinion, asking for input. And that stuck with me because later when they were like, 

“Oh, you demanded this.”

And I'm like, 

“No, the fuck he didn't.”

But I remember you asking and him just being very strange. I don't even remember what words he used when he answered, but he seemed to, he wanted you to decide for him. He wanted you to make a decision on it, and it was consistent to me that your decision was, 

“I'll take whatever you advise.”

JESSE: Here's my mother, Jean, again, talking about what she remembers from later that night. 

JEAN: So when the whole thing fell apart and they strapped into that ambulance and took you off to a locked place to find that out afterwards, after you'd gone in asking for help, after both parents are there going, 

“Yes, we want him to go to a hospital, let's do this. Let's find out what's going on.” Because that was, you were asking for help. 

So for them to take that and lock you up and basically turn you...change your behavior, they changed your behavior. I know that. You came in that house that night and you were rigid. I couldn't, I didn't know what to do.

I just really didn't know what to do. 

JESSE: When I arrived at health services that day I was fragile. Vulnerable. It took every bit of willpower that I had left just to get there, to accept that I needed help and to trust the people who said they were going to help me. 

So when that trust was met with deception and manipulation, that resulted in me being strapped into a gurney and wheeled into a locked psychiatric facility, that clash from the world as I thought it was and the reality of what Dr. Bynum had chosen to do, that clash drove down into the fragile internal structures that I relied upon and broke me. And my mother wasn't the only person to witness the effects of that. My younger sister Susan, who was 13 at the time, also saw me that night. 

Here's what she remembers.

SUSAN: My memories are of you coming home after being committed and just like, that you were crying on the floor for so long.

And I just remember like, seeing that and just feeling like you were so broken and I didn't know what to do, and the parents clearly didn't know what to do. So I remember when you came home from that, and then I remember that you went away, it was horrible. 

I mean, I guess for context too, you know, you're not just my brother and especially at that time, I worshiped you.

So I think it was watching my brother cry but it was also watching my hero cry. 

And I think when your heroes fall like that, it's a real life lesson. It's a lesson that like, if you're crying, what does that mean? Like, is anything safe? Is anything sacred? So I just felt like, helpless. 

I wish there was more I could do.

I wish there was some amount of love I could give to you. I mean, it was very clear. I remember, um, trying to hug you or seeing like mom try to hug you and you just, like, it just seemed like none of that could reach you or touch you. And that was so scary. Cause I also feel like we had always kind of had an understanding, even though I was much younger and sort of to look at you and feel like I couldn't reach that part of you or connect with you was just really hard.

And um, and I just wanted you to feel better. 

JESSE: I have spent a lot of time contemplating whether or not I really should have been given a diagnosis that day. Maybe things weren't really that bad? Maybe I didn't really need help?

Here is Committable producer, Jim McQuaid speaking with Steve Brown. 

Steve, Jim and I have all been friends for almost 30 years.

Here's what Steve remembers about the last time he saw me before I was committed. 

STEVE: I have a very vivid memory of the last time I saw him before he was committed. So I was at Lowell, Jesse had, I think, taken the first year off. And so he had just started at Amherst and I'd seen him over the summer at some point.

And everything was, you know, as it always was with Jess, he was eating healthy, he was doing the situps, he was doing other exercises. 

And so I hadn't seen him for a few months and I saw him at King Richards fair, which we would go to like every autumn. And he was just so thin, you know, this was a guy who like, for the past four or five years had been like fit, fit like an athlete.

And so in a few months he went from that to, you know, like if you've seen The Machinist, the Christian bale movie, that's where he was headed. 

If he wasn't already there.

I was completely freaked out. I didn't know if he had cancer or something and he didn't tell me?  I'd talked to him and I didn't know what was going on.

So I, uh, I went to his mom and I was just like, 

“What's up with Jesse? Is he okay?”

And his mom said, 

“He's fine. We're watching him.” 

And I didn't say anything to him probably because I was afraid. I didn't know what to do. I was also like 18 or something, 19, whatever, you know, like you don't really know.

JIM: So this wasn't just a matter of, he seemed fit and muscled and now he was thin.

STEVE: Yeah, he looked ill. The muscle was gone, his face was almost skeletal, and this was in a period of a few months. And it was like, I don't know what to do. And I guess I wasn't alone. Like his parents clearly didn't know what to do either.

I have the excuse of, having been a very young person who didn't have the experience to make a better choice, but I also regret that I did not have a conversation with him at the time. 

JIM: When you say you have the excuse of being younger, I mean, what is it that you're excusing?

STEVE: That I didn't talk to him. He probably wouldn't have listened to anything I said anyway, but like, clearly something was wrong, something, and you know, it was only like, not very far after that when he was committed at Amherst, but I just kept thinking, like, why did I not say something to him?

Like, you've lost too much weight. I don't know what you're doing, but you're not doing it right. You know, but again, would it have helped him? Probably not. But you know, the hard thing about mental illness is like, it makes the people around you feel as helpless as it probably makes you feel.

JIM: when you found out that he had been hospitalized, were you surprised? I mean, what was your reaction to that? 

STEVE: I don't remember specifically. I feel like that whole time period, just like it was nervous, it was...I was pretty lucky that I didn't really have a young experience where I lost any friends and when this happened, I felt like I might. I guess there was a lot of nervousness and fear that he wasn't gonna make it through this.

And I just didn't want my friend to get worse. I didn't want to cause him any harm. And so I was a little bit scared to be around him. 

Not scared to be around him, but like scared to do the wrong thing around him or say the wrong thing, you know, just like knowing that I didn't know.

And knowing that he had been hospitalized, I didn't know what would send him back in. What would help him move forward or what would not? There's a lot of not knowing how to deal wit someone you care about having mental illness and being nervous that you're going to make the wrong move. You're going to say the wrong thing.

JESSE: This is what Dr. Weber and Dr. Bynum saw when I walked into health services at UMass. An emaciated young man in tears asking for help. 

Agreeing that he needed to go to a hospital. 

Agreeing that he should gain weight. 

But what they also saw was a diagnosis, anorexia, and that diagnosis comes with a lot of preconceptions; lack of insight, deception manipulation.

So, when faced with what is perceived to be a crisis, do you trust the person? Or do you trust the diagnosis?

To try and better understand this complicated web connecting the person diagnosed, the community around them, and the professionals interpreting that diagnosis. 

To try and better understand all of that, I contacted Pat Corrigan. 

PAT CORRIGAN: My name is Pat Corrigan. I'm a psychology professor at the Illinois Institute of Technology. I have a 30 year career of looking at services for people with serious mental illness. Part of that is looking at how the stigma of mental illness impedes people in achieving their goals. 

JESSE: For someone living with a diagnosed mental health condition they're experiencing stigma from a lot of different places. How do you categorize those different types of stigma? 

PAT CORRIGAN: I think there's different types. I think the two obvious types are public stigma, what the public does to people with a labeled diagnosis when they buy into the stereotypes and discriminate against them.

And then I think there's self stigma, what you do to yourself. 

If you're a person with mental illness and internalize stigma leading to low self-esteem, low self-efficacy, something we call the “Why try effect.” Why should I even try to seek out my goals, I’m not worth it. 

A third group is called label avoidance. Stigma is a Mark. So, if I'm with a group of people and they have a different colored skin, which is a mark, and I'm racist I could act against them accordingly. Or different body type and I'm sexist, or gray hair and I’m ageist.

The mark of mental illnesses is fundamentally hidden. One way you get the mark is you're seeing coming out of a psychiatrist's office.

So, there's “Crazy Joe” coming out of the psychiatrist's office. Joe doesn't want to be labeled crazy, so he won't go. He'll avoid the label. 

So, we know there's pretty clear evidence that maybe a third of all people with serious mental illness won’t seek out care. One big reason is to avoid the stigma.

JESSE: Because mental illness is something that could go on being invisible, you could have someone who's within a family or within a community who is experiencing stigma that the rest of the people in the community might not comprehend or know. Have you been able to research the effects of a community? Is it sort of a ripple effect? Do you see stigma on the individual ripple outwards?

PAT CORRIGAN: Erving Goffman is the Sigmund Freud of stigma research and he would kind of call this courtesy stigma, the fact that stigma of one person is extended to other people by association. 

So, in mental illness one group to which the stigma of an individual with mental illness is extended is to family members. And so they must have caused it, or they must be nuts themselves to want to associate with this person.

And another it tends to be affiliated with is mental health providers, especially psychiatrists.

I mean, if you're a real doctor, why wouldn't you be an internal medicine doctor? Why do you want to hang out with these crazy people? 

So it does get extended to the community and can in its own way, lead to prejudice and discrimination against those other folks. 

JESSE: When Steve asked my mother if I was okay and she said I was fine, even though I really wasn't, on some level it may have been a fear of courtesy stigma that drove her answer.

But Pat also mentioned that there can be stigma directed at mental health professionals. If psychiatrists and psychologists are experiencing some form of stigma because of their profession, how does that affect their ability to connect with the people they treat? 

PAT CORRIGAN: Our research has consistently shown the most stigmatizing group of professions amongst lawyers, and plumbers, and carpenters, the most stigmatizing group are psychiatrists. 

And the second highest group are clinical psychologists. I'm a clinical psychologist. That might partly represent the stigma that I'm the butt of. It probably also represents the fact that a lot of times, psychiatrists in particular only see people when they're really, really sick.

And so they have a hard time understanding recovery is the norm. It'd sort of be like if you were in a diabetes clinic only for people who are going into comas all the time, then you're gonna think diabetes is a deadly illness. And in fact, that's not the case. 

JESSE: Is there a specific type of stigma associated with people who have been through an involuntary commitment? Or an inpatient stay in a psych ward?

PAT CORRIGAN: So, in our research we would suggest that because the stigma of mental illness is hidden you need to qualify for it. Because if I were to say,

“I have a mental illness.”

You’d go,

“No way, you don't have a mental illness, you don't really qualify for that one kind of guy.”

So what makes you qualify as a true psycho worthy of stigma?

One is have you been hospitalized.

Two is if you’re on meds.

Three is if you see a psychiatrist. 

We've never tested for whether you've been involuntarily hospitalized. I got to think that would make it even worse. There's clearly this interaction between having a mental illness in the criminal justice system. So I would imagine much of the population would think involuntary commitment would be some sort of legal issue.

Well, it is a civil issue but people might think it is a criminal issue. 

So it seems quite likely that involuntary hospitalization would worsen public stigma and self-stigma.

JESSE:  Is this a common association between mental illness and criminality? 

PAT CORRIGAN: There is a common association between mental illness and dangerousness.

Clearly the single biggest stereotype of concern is that people with mental illness are all dangerous. I don't care whether you have schizophrenia or something more benign, like a grief reaction to a loss of a loved one, all mentally ill people are the same. And so if I think you're dangerous, I'm not going to want to hire you, or rent to you, or be your classmate.

It's a big problem. 

JESSE: How would you approach trying to break that stereotype? 

PAT CORRIGAN: How do we beat stigma? That's really what our research has looked at over 20 years. We've kind of simplified it, reduced it to two issues. 

One is education, teach people the facts of mental illness that are contrary to the myths. And the other is contact, have interactions with people that have lived experience. 

For adults the summary of our research pretty clearly shows education has no real benefits. I don't care what you tell me by the time I'm an adult I know they're mentally ill. I know they're dangerous. It's not gonna make a difference. What really makes a difference is contact. Is interactions between the people that have lived experience and the rest of the population.

And you want an example, and it makes a lot of sense to your listeners, a good example is how we've made great strides in the LGBTQ community. 

You know, over my lifetime, we've gone from it being a very dangerous identity you'd never admit, to people out with wonderful multicolored rainbow flags. That's not because we told students it's genetic or hormonal, it's because back in my time very brave, LGBT men and women came out and we could look check for ourselves.

That those persons are not dangerous or evil or whatever. So it's the same thing. The degree to which people with mental illness come out and tell their stories is the degree to which the rest of the population knows they're not dangerous. They can get jobs, they can be successful, like everyone else.

JESSE: Is there anything I haven't asked about, that you think people should know, about stigma related to mental illness? 

PAT CORRIGAN: So one other important thing that is interesting is that there are different agenda for why you'd want to change stigma, and those agenda conflict with each other. The one agenda is we know there are evidence-based treatments that will help people with their depression, schizophrenia, and the like. And we know they won't go get treatment unless we decrease stigma. And so the practitioners agenda is to try to decrease stigma to get people into care. That can be different than the advocates, the activist agenda, which is much similar to Martin Luther King and black rights.

Namely the stigma of mental illness is unjust. It robs me of opportunities. I want you to stop discriminating against me. That tends to be the grassroots advocates agenda. Those two agendas compete. 

For example, there have been anti-stigma programs across the world. For example, one in Australia is called Beyond Blue, where they try to represent depression as a treatable mental illness, which it is, but the way people hear that is when you go with treatable brain disorder, you think people with mental illness are different than we are.

And again, anything that pushes the difference can actually worsen public stigma and lead to greater support of the prejudice. 

So, people need to be aware of those competing agenda.

I’m not necessarily saying one's better than the other, it's just that messages are not always so simple. 

JESSE: So should people be looking at not only the research they're seeing but where that research is coming from? Or should they be trying to ask that question of who's pushing for this legislation and what is their agenda? 

PAT CORRIGAN: I would suggest the latter. I mean the nature of research, unfortunately, is research comes from people like me because it comes from researchers. And that's what I do is sit around all day, collect data, analyze it and put it in journals.

Its value is the degree to which advocates take it and try and change the dialogue. And so who the advocates are matters a lot. 

JESSE: Stigma is a mark. And the mark of mental illness is fundamentally invisible but anorexia is fundamentally visible. 

For me anorexia was the only way I knew how to clearly show that something was wrong. Physicality was deeply woven into my identity and on some level I knew that if I tore that physicality down, maybe then others would start to notice that things weren't okay. 

Here's committable producer Jim McQuaid and Steve Brown again.

STEVE BROWN: I would certainly say that up until King Richard's Faire, Jesse was Jesse. These were things Jesse did, you know it wasn't what everyone else was doing, but Jess always kinda did his own thing, you know?

So until it was very visual, until it was very obvious visually that something's wrong, he does not look healthy, I don't think anything was like jumping out at me. After that it was like, something's definitely wrong. And then at that point I was worried up until I found out what had happened at Amherst. And then it was, you're worried in a whole different way.

Suddenly it's got a name and stuff's real. 

And that was scary because like, you're going from a person who I always viewed very strong. Like he was physically strong, he was mentally strong. And then suddenly he seemed very fragile physically, and conceivably mentally too in terms of his condition.

So we didn't really know any of us.

If that had happened to somebody else it would have probably been a similar experience, but Jesse was a bit of a sucker punch. Cause you're like, you don't expect it from him. 

JIM MCQUAID: How does it feel right now to reflect back on that time and those feelings?

STEVE BROWN: When you start retreading that stuff and remembering that stuff, it's like a bit scary, it's a bit sad, you know, it's...what the hell? You know, this doesn't line up with my version of reality. Um…

JIM MCQUAID: What do you mean “...this doesn't line up with my version of reality”? 

STEVE BROWN: Well, because you know, you have a reality and this is who your friend is, and then you show up a place and that person is someone completely different.

And, you don't want that, like, you're denying that. And I often wondered if the whole family was kind of denying that in the moment. I don't know.

JIM MCQUAID:  There was a reaction that I had, and this is my emotional reaction, and I'm wondering if anybody shares it. So for me looking back on that I, you know, I very much had that superhero image and once all this stuff started playing out I felt really guilty and really bad about carrying that image in my head and kind of putting that…

STEVE BROWN: Putting it on him. 

JIM MCQUAID: Yeah. And it was almost like I was kind of celebrating this thing that was leading him to suffer and I was blind to it because I had constructed this image in my head. I don't know. I'm just curious if, I've always wondered if I'm alone with that or if anyone else…

STEVE BROWN: I don't think so. I think that I did the same thing, you know, you’d brag about Jesse to people like, 

“Oh, my friend Jesse can walk up the stairs on his hands.”

JIM MCQUAID: I've said that to people, I don't know how many, yeah.

STEVE BROWN: I felt like, you know, I would just talk Jesse up to people. Like he didn't really even know so it's not really necessarily on him, although, I don't know... 

JIM MCQUAID: I actually, I never, I didn't ask him that. I wonder how much he was aware that we saw him that way. I think he must've been.

JESSE: I was not.

STEVE BROWN: I think he and I have probably talked about this before…

JESSE: We have not. 

JIM MCQUAID: So just, this really reminded me of that and I think I'm gonna ask him.

STEVE BROWN: You should ask him.

JESSE: He never did. Unless you count giving me the recording of that interview, in which case, well played McQuaid. Well played.

Several years ago I had no job and no home. Steve took me in and got me employed. I worked that job for as long as I could until...I couldn't. 

And then when I was desperate and spiraling Jim called me, showed me compassion, and in that conversation Committable was born. 

I love them.

And I will never know how much of our interactions are driven by guilt, and by the perception that I might break...again.

Mental illness doesn't just affect the individual diagnosed. It can affect the community around them.

And involuntary commitments don't just remove an individual from the community. Commitments can ripple out into the community as well. 

Next time on committable.

S1 Episode 1: Section 12 Transcript

EPISODE TRANSCRIPT

KAREN OWEN TALLEY: Section 12 can happen to anybody. 

BOB FLEISCHNER: Ultimately the authority to sign these pink slips is absolute.

KAREN OWEN TALLEY: Most people who are not familiar with it are quite honestly shocked at what kind of liberties can be taken from somebody.

STEVE SCHWARTZ: But when it comes down to, 

“I wasn't really dangerous, I wasn't really mentally ill, they thought I was.”

You're going to lose.

JESSE: This is Committable.

JESSE: this is Committable, a podcast about involuntary commitments. I'm Jesse Mangan. 

For over 20 years, I've been trying to process a series of events that began with me making an appointment with a nutritionist and spiraled into three years in and out of psych wards.

When all of this began, I had just started as a student at the University of Massachusetts at Amherst and I knew something was wrong. I was constantly cold and exhausted, having trouble sleeping, having trouble concentrating, and I was losing weight that I did not intend to lose. So I made an appointment with a nutritionist at UMass health services. 

The appointment started at 9:00 AM on a Wednesday and within 15 minutes, I was crying.

I was crying because I felt just overwhelmed with...everything. Seeing my reaction, the nutritionist went to get a physician, Dr. Webber. Dr. Webber weighed me, ran some tests and diagnosed me with anorexia. 

At the time, I didn't really know what anorexia was. All I knew was that I had just been told that my weight was so low that if I moved too much I might have a heart attack. If I moved too much, I might die. 

I was frightened. 

After that Dr. Weber referred me to a psychologist, Dr. Bynum. Dr. Bynum brought me into an office and he asked if I was willing to gain weight. 

I was. 

He asked if I was willing to go to a hospital. 

I was. 

He asked if I was willing to speak to a psychiatrist at the hospital. 

I told him that as long as he got me to a place where the, “if you move too much you might die” thing was being taken care of, I would speak to whoever he wanted me to. 

He asked if I wanted my parents involved. 

I did. 

Bynum called my parents and we all agreed that I should wait at health services until a hospital bed opened up.

My parents asked Tom, my older brother, to come wait with me. Here's what Tom remembers from that day.

TOM: I remember sitting there with you for a long time. I remember seeing a nurse once, maybe twice tops. You had asked for apple juice or something and I remember asking her myself, 

“Hey, what happened to that request?”

Because you had said you weren't sure they were listening to you, but I remember coming out of that room and being greeted by a gurney with two not frail looking fellas. As well as Bynum, Bynum was there saying, 

“Okay, we're ready to take you to the hospital.”

And us going, 

“Okay, well, the car's out here.”

And then proceeded this very odd conversation that at the time I had no basis for comparison. So I didn't, I certainly didn't put two and two together for what was happening, but them insisting that we had to take the gurney and we were like, 

“I've got a car.”

Well, even before, cause they asked before we went out there, there had been some conversation about something and I said, 

“Yeah, I'll just drive him over.”

And they were like, 

“Well, let us check into that.”

And “...check into that.” turned into us walking out into this gurney and them insisting that for insurance purposes they had to have you on gurney. You had to go in the ambulance. We had some more conversation because that seemed shifty. And they're like, 

“No, you have to go on the gurney to get to the hospital.”

I was like,

“What are you talking about?”

And then they basically just kind of steamrolled us into, 

“No, this is the way it has to be for insurance purposes. This is the only way we can get you into that bed to have them, you know, take a look at you. The only way this works is if you get in this gurney and sign this piece of paper.”

There was no request, it was do this or...it was do this or and it was bad.”

JESSE: Strapped into a gurney I was brought by ambulance to a hospital. EMTs switched the gurney to a vertical position to get me onto an elevator. I was then wheeled directly out of that elevator and onto a psych ward where I heard the distinct “click” of magnetically locked doors shutting behind me.

A nurse approached and asked for my belt and anything else that might be unsafe.

“What? Like my shoelaces?” I joked.

After my shoelaces were taken I was escorted to a simple room with a bed, a locked bathroom, a camera, and a door kept open so that every 15 minutes a staff member could look in to see if I had attempted suicide. 

I started that day as a student with health concerns speaking to a nutritionist. I ended that day on suicide watch in a locked psychiatric facility because of a form that Dr. Bynum had signed something called a Section 12.

 So what is a Section 12?

STEVE SCHWARTZ: Bob, you want to answer? 

BOB FLEISCHNER: Yeah, sure. 

JESSE: This is Steve Schwartz and Bob Fleischner from the Center for Public Representation.

STEVE SCHWARTZ: Hi, I'm Steve Schwartz, I'm the legal director of the Center for Public Representation. The Center is a national and local training and technical assistance center, providing representation to people with disabilities all across the United States. And we particularly focused on people who are in facilities like state hospitals, or jails, juvenile justice facilities, nursing facilities, and our mission is to try to bring them home. Bring them back to the community and give them the supports that they would need to live fully productive lives.

BOB FLEISCHNER: Hi, I’m Bob. I worked at the Center for about 40 something years and retired a couple of years ago. Currently, I’m doing special projects for the Center and I'm doing work internationally on access to justice issues for people with disabilities and in Massachusetts on solitary confinement in prisons.

JESSE: So, specifically I wanted to ask what is a Section 12? 

BOB FLEISCHNER: A Section 12 is not a simple question. It's not a one sentence answer. There are different kinds of Section 12s. There's several subsections. 

Most generally a Section 12 is an order of emergency commitment signed by someone and it could be a doctor, it could be a police officer, it could be some other mental health clinician, or it could be a judge, that finds that there's reason to believe that if the person's not hospitalized they'll be dangerous to themselves or others. And it authorizes transportation to a hospital or authorized facility for three days for evaluation to see whether the person needs to stay longer.

STEVE SCHWARTZ: Just to make sure, there is a three day time period, during that three day time period you can request a lawyer and your lawyer can request an immediate hearing. The court will do their best to schedule the hearing within 24 hours. So, if you really know how to work the system. which people who are sometimes confused might not know how to do.

In fact, there aren't many lawyers besides Bob and I who know how to work the system. But if you know how to work the system the minute you're thrown into a place you get a name of a lawyer. You call that lawyer and say, 

“Get me out of here as quickly as possible.”

The best they'll be able to do for you, short of convincing the doctor to release you voluntarily, the best they can do for you is get a hearing in 24 hours. That's the best you can do.

JESSE: Do you need to have a diagnosis in order to keep someone beyond that 72 hours?

STEVE SCHWARTZ: You need to have a diagnosis to get the person in in the first place. The standards in this whole process are relatively the same, although they are interpreted a little more loosely on the front end because people have less information on the front end, but the standards are the same.

The standards are; 

You must have a serious mental illness, that is someone must believe you have a serious mental illness. They must believe that you would present a danger to yourself or someone else if you were not hospitalized and they must have exhausted alternatives to hospitalization. Now, whether they really do, it's really some of the information that happens at the hearing.

Sometimes clinicians and police officers will do this with some real fidelity. Sometimes they say, 

“I don't know where else the person goes. They look kind of crazy to me. I feel real bad for them to be on the street. They might do something. So if they did something (whatever that is) somebody could get hurt.”

Maybe themselves, maybe somebody else let's not take a chance, whisk them off.

JESSE: Is there a specific reason why it's three days and not one day or two days?

BOB FLEISCHNER: There's a balance. There is a substantial loss of liberty that's involved for the person who's being put into the hospital or being held for the three days.

So it should be on the short end in order not to interfere with the person's liberty. On the other hand, it has to be long enough for the psychiatrist at the hospital to make an evaluation of whether the person needs to be held for a longer period of time, which takes a court order. So there's a balancing of the practical application and the Liberty interest that's involved.

JESSE: Steve emphasized how important it is to understand the history of commitment laws as we start to look at ways in which those laws are still being challenged today. 

STEVE SCHWARTZ: So it's important Jesse, when we started our work, which was in the early seventies, many States had no provision at all for what’s called emergency detention.

In fact, they even had no serious protections for long-term commitment. But as a result of some civil rights cases that were brought in the late sixties and the early seventies that held that you could not deprive a person with psychiatric disabilities of their Liberty without a hearing, without a good reason, without the right to a lawyer, States began to reform their laws.

Massachusetts was one of the first to do so and when it did it, it actually required a fairly in-depth process and a pretty rigorous standard for long-term commitment. Long-term commitment was for six months or a year, or longer, which was novel across the country, because there were no protections in many, many States.

So Massachusetts was one of the States that set up these more rigorous standards and procedures to safeguard the inappropriate deprivation of freedom. At the same time, it allowed a wide exception. What's often known as the front door and allowed someone to be held for 10 days, as Bob said, under a provision called emergency detention.

And at that time, when this statute was first enacted in the early seventies, the emergency detention provisions, section 12, had no requirement for a hearing. And in fact, the hearing would happen sometime after the 10 days expired because of court delays and so on. So if you were brought to a state hospital in let's say 1975, You could have been brought to the hospital for 10 days with no hearing, no safeguards, no lawyers, no due process.

And by the time you got that, it could have been been another 10 days. So you could be there really 20 days before anything began to happen gradually over time. CPR led by much bogs work began both litigating and trying to legislate improvements or more safe guards to this emergency detention process.

And at some point the 10 days became five days and the five days became, I think four days and the four days became three days. And then people ran out of steam. And so that's what it is now. And recently there became a question that went to the Supreme Judicial Court in a case that Bob and I wrote a friend of the court brief of whether the emergency detention timelines, the three-day time period, could be circumvented.

If you were sent to an emergency room, like at Mass General Hospital, and kept in the emergency room for a week before you were sent to the mental health facility, because you could only stay there three days. And so this issue of length of time, your question, has changed very dramatically from no days, from a hundred thousand days in 1960 to 10 days to five days, to four days, to three days.

But even then those days only begin to count, you only start the three-day period, once you arrive at a mental health facility. And if you are first brought by a police officer to an emergency room and kept there for a week, you're three days don't start until the emergency room sends you to the psych facility.

JESSE: This case that Steve was referring to is called Massachusetts General Hospital vs. CR. 

KAREN OWEN TALLEY: It's Massachusetts General Hospital vs. CR, which was decided in April, which was a case I did both in the BMC appellate division, where we prevailed, and then in the SJC where we did not prevail. They thought that the legislature should address this issue of what happens under 12a.

JESSE: this is Karen Owen Talley from the Committee for Public Counsel Services. 

KAREN OWEN TALLEY: I’m Karen Owen Tally, I've been an attorney for around 25 years now, a little over 25 years, and for all that time have been practicing exclusively in the area of mental health law on the side of respondents or people who are in institutions.

It's been about the last 11 years in total I've worked for CPCS, which is the state public defender organization. And that's where I work currently. My current position is as the Director of Mental Health Appeals, so I'm responsible for either assigning counsel and handling a small number of appeals myself that arise out of mental health cases. Which is generally commitments and also some guardianship cases.

And when I say commitments that also often includes an order for forced medication that's part of the commitment order. 

JESSE: This case, Massachusetts General Hospital vs. CR, focuses on the space between two parts of a section 12; a 12a and a 12b. I asked Karen to help me understand exactly what...that...means...

KAREN OWEN TALLEY: So the person is initially under 12 as a clinician, or in emergencies it can be a police officer, has reason to believe that the person might have a mental illness that may create a likelihood of serious harm to self or others. That authorizes them to physically restrain the person or take them into custody for lack of a better word.

It's usually an ambulance and then the way the statute is written my interpretation, most other people that you've already spoken to; Steven Schwartz, Bob Fleischner, people who have been around doing this for a long time, would argue that the way the statute was originally drafted the intent was the ambulance picks them up and drives them directly to the door of a psychiatric hospital.

Those days it was probably a state psychiatric hospital. Now they're mostly privately run psychiatric hospitals. So that initial 12a period was supposed to be a very brief period of restraint just for the purposes of getting them to the psychiatric facility, where they would then be evaluated by a designated physician under 12b, to see if they actually met the test of posing an actual likelihood of serious harm.

Also at that psychiatric facility, that's where they're given the opportunity to sign in on a conditional voluntary. So hopefully to avoid the need for an involuntary commitment. So the period under 12a  has grown into this situation where most people are brought to an emergency department and sort of parked there while they look for an available psychiatric bed.

The issue in CR was there's no time limit on that 12a portion of the statute. And yet the person is being held and restrained and deprived of their liberty without counsel, without judicial review, for a potentially indefinite period of time. That was the issue that we tried to litigate to say that, you know, this can't be what the legislature intended.

The court agreed with us that that cannot be what the legislature intended, but thought that the legislature should address this issue of what happens under 12a. To try and figure out what's an appropriate time limit on that 12a detention. So, 12a is involuntary but it's meant to be a very brief period of just, kind of assessing the person to get them to the psychiatric facility involuntarily. But number one, there’s supposed to be an actual determination by a designated physician who is now personally examining the person that they meet the criteria of presenting a likelihood of serious harm by reason of mental illness.

And they have declined or refused to sign themselves in voluntarily. So, in a typical scenario, you have someone picked up and restrained under 12a, brought to the emergency room most likely, instead of being brought directly to a psychiatric facility, and then the 12b period, if they don't sign themselves in voluntarily, is a three business day time period. At the end of that 12b time period the hospital has to either discharge them or file a petition for their commitment.

Or what we would argue should happen is that the person declines to sign a conditional voluntary at the door of the psych hospital, they could do it later on as well when they do have an opportunity to consult with counsel, but setting that aside, if the person doesn't sign a conditional voluntary the 12b psychiatric hospitalization for three business days is involuntary.

That three business day limit is intended to prevent somebody from being housed involuntarily without a court hearing. Because at that point it's really just the say so of a designated physician. There hasn't been a court review.

JESSE: when Dr. Bynum ordered that I be strapped into a gurney and wheeled onto a psych ward.

That was a 12a. 

Then when I arrived at that psych ward, the law provided them two hours to accomplish two things. One, to evaluate whether or not I needed to be held for up to three business days under a 12b. And to offer me a chance to sign myself in under a conditional voluntary. 

Okay. So one, I was told there was no one there who could evaluate me for a 12b. That everyone qualified to do so had already left and gone home. 

And two, I entered that psych ward on a Wednesday and was told that my best chance for getting out some time on Monday would be to sign myself in under a conditional voluntary. 

How does something referred to as voluntary keep a person confined for five days? 

What is a conditional voluntary? 

KAREN OWEN TALLEY: A conditional voluntary, when I say you are waiving legal rights, it's not often perceived in that way or described in that way, but it is a waiver of legal rights. Because if you sign in on a conditional voluntary you're no longer there on voluntary status. So you lose your right to appointed counsel. Okay. Because now you're considered to be there voluntarily.

And there's no right to counsel if you are just voluntarily in the hospital. So that's the first right that is waived. The second right that is waived is if you're in the hospital on an involuntary three day admission under section 12b, you have a right to counsel. 

You have to request it though. It's not something that is automatic, but you have a right to be informed that you can request the council through CPCS. You have a right to have that council appointed to come and meet with you. And you have a right to what's called a 12b emergency hearing to see if there has been some abuse or misuse of the section 12 process.

So there are some legal protections that are available to you in that sort of emergency, three day section 12, temporary commitment or admission. However you want to term it. But number one, you waive all those rights if you sign a conditional voluntary and number two, it's not entirely clear what the scope of relief is that can be afforded at that 12b hearing. Abuse or misuse of the section 12 process is still sort of in the process of being defined. 

JESSE: Is there an advantage to the patient if they sign a voluntary versus an involuntary? 

KAREN OWEN TALLEY: Important thing to note before I answer that is that they are supposed to have an opportunity to consult with a lawyer, or a paralegal working under the supervision of a lawyer, about the legal effects of signing themselves in voluntarily before they sign it.

That's a huge issue in Massachusetts and it's an area where there needs to be some reform because the reality is when people get to the door of the psych facility they may be presented with this paperwork and not informed, by whoever is giving it to them, about the rights that they're giving up by signing in voluntarily, or that they have a right to consult with counsel, or they may understand it completely differently.

And they may be given inaccurate information about the advantages, or disadvantages, or implications, of signing that. And there sometimes can be what appears to be a fairly high level of coercion because it's easier for the psychiatric facilities to admit somebody on a conditional voluntary. 

JESSE: In the years, since my initial diagnosis, I've been faced with a conditional voluntary three times. And I don't remember ever being told that I had the right to speak to an attorney before I signed it. Here's Karen again.

 KAREN OWEN TALLEY: So to get back to your initial question, which is a good one, you know, are there advantages? Are there disadvantages? The legislature provides that people are required to be given the opportunity to sign in voluntarily because there's a preference for voluntary treatment.

And I think. You know, I'm not a clinician, but my understanding is that in the clinical literature as well, there's just a preference for people to get treatment voluntarily. It forges, you know, in theory, a better alliance between the person and the doctor or treatment staff. It gives the individual a greater sense of agency. Then, you know, having something done to them involuntarily. There is a sort of societal, legislative and clinical preference for voluntary treatment. The main sort of, you know, rubber meets the road difference to an individual is if they sign in on a conditional voluntary, remain as a conditional voluntary, the hospital cannot get an order for forcible medication because the order for forcible medication is only considered if the person is committed.

So, from a very practical what are the advantages/disadvantages to an individual, if they remain on a conditional voluntary, and they’re competent to remain on a conditional voluntary, and stay on that legal status, the hospital can't get an order for forced medication.

JESSE: So, you mentioned “...if they're competent to remain on a conditional voluntary…” Is there a legal definition of competency that has to be established?

 KAREN OWEN TALLEY: Yeah. And it's found in the statute and in the regulations and it's meant to be a very low standard. So, the person basically just has to understand that, you know, they're at a facility, it's a facility for psychiatric treatment, they desire to get treatment, and then they also have to understand that if they want to leave, they have to execute what's called a three-day notice. And that's the conditional part of conditional voluntary. If it was a true voluntary, you could leave against medical advice without giving three-day written notice. The conditional part is that if you sign yourself in you’re acknowledging that if you want to leave you have to, in writing, give the hospital three days notice of your intention to leave.

And that gives the hospital three days to decide whether to discharge you or whether they're going to petition for your involuntary commitment.

JESSE: Okay. So a 12a can involuntarily confine someone for transport to a place where they will, at some point, be evaluated for a 12b. 

A 12b can commit someone to a psychiatric facility for up to 72 hours, or more specifically three business days, of observation.

And the conditional voluntary seems to be a form of self commitment which far too often includes elements of coercion and confusion, which can result in it being voluntary in name only. But this is all intended to help someone who has been diagnosed with a mental illness. And every time I have been diagnosed with something the criteria used to reach that diagnosis was listed in the DSM.

The Diagnostic and Statistical Manual of mental disorders. 

So, if the DSM is what psychiatrists and psychologists are using to diagnose people, and that diagnosis can be used to confine someone against their will, then the criteria in the DSM must be legally binding in some way.

STEVE SCHWARTZ: I mean, the DSM has criteria.

And one of the things Bob and I used to do many years ago was when we did these civil commitment hearings, we would cross examine the doctor and we would cross examine them on all three of these points; mental illness, dangerousness, alternatives, and they had a little more, you know, professional knowledge about the mental illness than they had about the alternatives.

But if they diagnose the person with a certain type of mental illness that has a certain classification in the DSM-V, and the person didn't have symptoms that matched what the DSM-V said, we would try to convince the judge that the doctor doesn’t know what he's talking about.

BOB FLEISCHNER: The legal standard is not the DSM.

The legal standard is the definition of mental illness that is written by the Department of Mental Health and appears in their regulation. 

JESSE: Here is committable contributor Michelle Stockman with the Section 12 criteria for mental illness.

MICHELLE STOCKMAN: For purposes of admission to an inpatient facility under Section 12;

Mental illness means a substantial disorder of thought, mood, perception, orientation or memory, which grossly impairs judgment, behavior, or capacity to recognize reality or ability to meet the ordinary demands of life.

Symptoms caused solely by alcohol or drug intake, organic brain damage, or mental retardation, do not constitute a serious mental illness.

JESSE: Is there any way to avoid being sent for an evaluation. I mean, if a psychiatrist, or if anyone, has an opinion of you that you seem off, you seem like you could be a danger, whether or not you are. Is there any way to avoid ever being sent for evaluation?

BOB FLEISCHNER: Section 12, which is often called a pink slip here. Ultimately the authority to sign these pink slips is absolute within the bounds of what the legal standards are.

So you can't prevent anybody from signing them.

STEVE SCHWARTZ: If someone's after you, unless you can run faster, there's no way legally to prevent them from being able to at least initially detain you. You can try to trigger the process quickly like we mentioned. You can, after you're released, try to sue them for what's known as false imprisonment. But given the discretion that is involved, it's very, very difficult to win that case.

You know, if someone was doing this in bad faith, you know, they were doing it because of the color of your skin, because of the party you vote for, stuff like that. And you could prove that was the reason.

Like someone said, 

“We're going to lock up black people.”

Regardless of whether we have any evidence about it, you might be able to win false imprisonment on that.

But when it comes down to,

“I wasn't really dangerous. I wasn't really mentally ill. They thought I was.”

You're going to lose

JESSE: And there’s immunity?

BOB FLEISCHNER: The statute provides immunity to anyone who signs, anyone who is authorized to sign, a section 12 and signs it in good faith is immune from damages. 

JESSE: The state must recognize that this is sort of an awesome power that they're giving to some people. So, these facilities must be safe. If you're saying I can put you in this facility for 72 hours to be evaluated, these facilities would presumably be safe. Is that the case?

STEVE SCHWARTZ: So, there's two kinds of safety, you know, are you going to get killed or beaten up or so on? Like safety the way we think of jails as being unsafe from outright intentional violence.

Probably most, if not all, psychiatric facilities are safe in that way. It would not be impossible, but it would be very, very rare that you would have deliberate violence coming from staff or other residents. There's another kind of safety though, which really has to do with, are you going to be overmedicated?

Are you going to be kept in the facility way longer than necessary and actually become institutionalized? 

Are you going to be restrained when you don't need it or excessively for a long time? 

And as a result of the restraint, you get hurt because they do a take down? 

So, there's a lot of other types of consequences of involuntary hospitalization that aren't in the category of intentional violence but they are in a category of likely serious risks. 

And those happen a lot.

BOB FLEISCHNER: The two most dangerous and potentially harmful times in this process are one, when you're restrained, which Steve's talked about. And usually when someone's brought into an emergency room, the emergency room restrains them to a gurney until somebody can see them.

So that's one place. Restraint, restraint is a violent act. 

The second actually comes before that. And that's when the person is restrained to be taken to the hospital. And if in the course of your podcast you talk to people who've been sectioned 12’d you will inevitably hear about the violence that's perpetrated by police officers when they restrain people. They've got an order that says, this is an authorization to get this person in an ambulance and bring them to a hospital and you will hear about people who have been seriously, seriously, harmed during that process. 

And if you read testimonials from people who've been section 12’d, it's pretty stunning what happens to people. They're often cuffed. If they're in an ambulance they're restrained on a gurney in an ambulance, and this is all to get them help. 

The section 12 process for many people is a violent piece of action. 

JESSE: When I was restrained to a gurney and told that this was all necessary, that this was the only way that I could get help.

The harm for me was not how tight the restraints were. It wasn't the physical abuse. The harm was that it took every last shred of willpower that I had left to ask for help and to trust the people who said they were going to help me.

Internally it all felt wrong but I was being told that it was for my own good. I was being told that I had to trust them and not trust me. 

So the harm is that I trusted them and that trust led to me being strapped down and wheeled into a psych ward where in one instant everything that I depended upon was ripped away. 

But all of this took place in Massachusetts. What about the rest of the country?

STEVE SCHWARTZ: So at a high level, the fact that you have emergency detentions, then you have a court hearing for what's called civil commitment, and then you can have repeated hearings for longer and longer terms of commitment. At that high level most States look the same. If you drill down. And say, 

“What's the period for emergency detention?”

In some State’s it’s three days. Some States are five days. Some States are 14 days. So, while they'll have an emergency detention concept, it could be considerably longer. Many States don't have, for instance, the provision that you get the name of a lawyer when you walk in, you call that lawyer and you can get a hearing right away.

Very few States have the ability to have a hearing as quickly as you now can have in Massachusetts. Again, most States have the standards for commitment, which is that the person has to have a mental illness, there has to be some risk, and the facility needs to be necessary in light of other community alternatives.

What's often called there's no less restrictive alternative. 

So, those three concepts exist in most States, not every state, but most. But how they define a danger, how they define alternatives, and how they define mental illness varies. 

Some States allow commitments for not only mental illness but for having an intellectual disability, or developmental disabilities.

Massachusetts allows commitments for having a mental illness or having a substance use condition.

BOB FLEISCHNER: Probably about half the States have commitment for substance use disorder, but Massachusetts is the only state who puts people in prison. 

STEVE SCHWARTZ: The one other thing to say is that when you asked

“How is Massachusetts compared to other States?”

Many States have, in addition to the civil commitment provisions that you're looking at, which I hear from your questions Jesse, they are about being committed to a hospital or a facility. Some brick and mortar place. Many States have a second kind of commitment called outpatient commitment. Which means you are brought to a court, there has to be some evidence along the lines that we talked about, but there's a lower standard.

That the hospital, or the doctors, have to prove not so much dangerousness. The test often is that you're not willing to comply with the treatment requirements from your doctor. And if you're not, the judge enters what's called an outpatient commitment order. So you're committed, you're under the control of a court, you're subject to punishment and fines and institutionalization if you don't comply, but you're not in a hospital.

You're required to take medication and to go to a therapist or show up at a place. There can be different conditions. Massachusetts does not have outpatient commitment much because of the work of CPR and others who have opposed it here in the Commonwealth. 

But many other States do.

JESSE: it's a lot, right?

Section 12, 12a, 12b, DSM, outpatient commitments. 

It is a lot to process all at once. 

Now imagine on your worst day, the day where everything feels like it's falling apart. Imagine on that day, asking for help and getting an abridged, incomplete explanation of all of this in between being told that you need treatment now, and this form here, this is the only way you get it.

Would you sign it? 

Would you read it? 

Would you understand it?

Next time on committable.

SUSAN MANGAN: I remember you crying on the floor for so long. And I just remember, like, you were so broken...

STEVE BROWN: The muscle was gone. His face was almost skeletal.

JEAN FORWARD: When the whole thing fell apart and they strapped you into that ambulance and took you off to a locked place they changed your behavior. You came in that house that night and you were rigid.

JESSE: Committable is produced by Jim McQuaid and Michelle Stockman. 

This episode was written, edited and hosted by me, Jesse Mangan. 

All music is from the song Reasonable by Christopher G. Brown. 

Additional production for this episode by Brian Patrick Williams.