S3 Episode 5: Missouri

Michelle:  This. Is Committable. This is Committable. This is Committable. 

Jesse: There it is.

Michelle: Boom. 

Jesse: Alright, are you ready to talk about Missouri? 

Michelle: Alright, let's do this.

Jesse: And cue music.

(intro music from Reasonable by Christopher G. Brown)

Jesse: This is Committable, a podcast about involuntary commitments. I'm Jesse Mangan and I'm here with Committable producer Michelle Stockman to talk about mental health laws in Missouri. 

Michelle: Missouri! Alight. 

Jesse: And this episode is going to be a little bit different because we won't be focusing on civil commitments. Instead, we'll be looking at the criminal commitment process and to better understand that process I spoke with Elizabeth Satchell.

Elizabeth Satchell: My name is Elizabeth Satchell, I'm an attorney with the Public Defender's Office in Missouri. I just finished my ninth year, so I'm in year number 10, so I've had a lot of experience with criminal cases and how mental illness, um, how they intersect and what can go wrong and what can actually work out.

Jesse: Would you be okay introducing your dog? I heard, think I heard a dog and I think. 

Elizabeth Satchell: Yeah, his name is Chi, he's part lab part collie. 

Jesse: That's great, I think I might just play a little piece of that to let people know what the tag sound is at some point.

Jesse: So when it comes to interactions between people perceived to be exhibiting symptoms of a mental illness and systems of civil commitment, there are a lot of parallels between that civil commitment process and the criminal commitment process. One important difference though between these two systems is that a civil commitment does not require any allegation of criminal conduct. But in order to be put on the path towards a criminal commitment there does have to be an initial allegation that this person committed a crime. So my first question for Elizabeth was at the point where someone is being detained because they're alleged to have committed a crime, if mental health is believed to be a concern, what changes in that criminal process? 

Elizabeth Satchell: Well, there are a bunch of different ways that mental illness, mental disease, or some kind of abnormality, how that intersects with the criminal case. So I think in most cases it's more of a mitigator. Someone might have assaulted their spouse or something like that, but it was due to mental illness, a mental health condition where maybe they didn't take their medications for a few days or something. Or it's just undiagnosed or untreated. And so as a mitigator, that defense attorney might suggest, Hey, go to a local mental health clinic, do an assessment. How about you follow through with counseling or medication, et cetera. So we use it as a mitigator that way, but then also if it's serious enough that it's affecting their competency, being able to understand the proceedings and their ability to assist in their own defense, then we start the commitment procedure through the criminal case.

Jesse: So I guess there’s two different paths, basically. There's sort of a mitigation path to try and avoid more serious forms of detention, but then there's a commitment path, and that's based off of concerns about ability to comprehend, competency? 

Elizabeth Satchell: Yes.

Jesse: For the competency route, is it the defense attorney who first raises that concern of, I'm not sure this person comprehends the situation they're in?

Elizabeth Satchell: It can be judge, prosecutor, or defense attorney that triggers it. So there just has to be reasonable cause that the person doesn't have the capacity to understand what is going on, or assist in their own defense. So it could be judge just on his/her/their own. Could be a prosecutor saying something's not right here, or it could be the defense attorney. And that just triggers the statute.

Jesse: Once that competency process is triggered, then what happens to the person? 

Elizabeth Satchell: We have a hearing with the judge and then the judge determines yes, there's reasonable cause to believe that this person doesn't have the capacity to continue, and then the case is stalled, you know, put on hold. And that person gets an evaluation. The statute says it could be with a private doctor that agrees to be appointed, however, that never happens. Usually that person goes to the department of Mental Health for an initial evaluation.

Jesse: So the case is stalled. 

Elizabeth Satchell: Right. 

Jesse: So that means that the goal would be to assess competency and hopefully bring the person back if they can at some point understand the proceedings.

Elizabeth Satchell: Right, right. The overall process, and there's a bunch of more steps too, but the overall process is to determine whether the person has a mental disease or defect that is preventing them from having the capacity to understand what's going on or assist their attorney. And then if that is present, then the next step is to help them regain competency and then continue with the criminal case.

Jesse: “Mental disease or defect” sounds like a broad term. Does that include intellectual disability? 

Elizabeth Satchell: Yes. 

Jesse:  And developmental…

Elizabeth Satchell: Yes. 

Jesse: Includes any type of, anything that would…

Elizabeth Satchell: Just about anything except for drug and alcohol addiction. Just run of the mill addiction is not mental disease or defect under capacity. And it's kind of tough because we're looking at whether someone has a capacity to understand, you know? So, ssually what I see with judges is that if anything, any concern is brought up that usually it triggers the statute because there's the punishment side, but then there's also the terrible side of trying to punish someone when they don't understand what's going on. And so it's pretty easy to trigger the statute. 

Jesse: So a person is accused of a crime, they're being detained, probably in a jail, and someone involved in this process could be the defense attorney, the prosecuting attorney or the judge. Someone raises the question of whether or not this person is competent to stand trial for that crime. And that can trigger a process where that person is sent to a psychiatric facility for evaluation. So what happens next? How does that evaluation work?

Elizabeth Satchell: In the initial stage, like I said, they're just getting an evaluation by a doctor at the Department of Mental Health. It has to be done within 60 days, unless they request more time, but their interview is usually just, do they understand the proceedings? Do you understand, what does a judge do? What does your attorney do? What does a jury mean? Why do you go to trial? Et cetera. So there's a bunch of questions like that and then they also assess just general mental health status. So it's not, are you a threat to yourself or others or anything like that. It's, do you understand the process? And then just generally, do you understand where you're at and what's going on? So that initial process takes about 60 days. 

Jesse: Is that evaluation a very time specific question of competency? Are you trying to determine competency now? Or are you trying to determine were they competent at the time of the alleged crime? 

Elizabeth Satchell: Triggering this statute it’s competency now. There's a different thing called, Not Guilty by Reason of Insanity,  or NGRI, that looks at whether that person was competent at the time. And so those are two different things. But with NGRI, it can trigger the statute as just a different reason, different path, and a different focus of the evaluation.So we don't have those cases very often. 

So the typical person on the street, if they do end up with DMH evaluation through a criminal case, it's usually in the competency path, 

Jesse: NGRI, while it gets a lot of attention in media and such, do you have a sense of how common it is? Like, what percentage of cases that actually comes up?

Elizabeth Satchell:I've been in the same office for, like I said, I'm going into my 10th year and I'm aware of maybe one. So it's very, very small. Very, very small. 

Michelle: I don't know how many episodes we've done of Committable so far, and the number of states we've covered. Sometimes the process is like, go left and then go right and then go left, but then if you go left, go right twice, then go upside down four times. I just find it hilarious that one of the bars is, do you understand what's happening here? We've been doing this for a while and I still don't really understand, it's really complicated. 

Jesse: Yeah, my hope would be that the bar for declaring someone incompetent would be about specifically proving that they are incapable of understanding what's going on. Not that they don't currently understand the details of the system. 

Michelle: A system that is notorious for its confusion, and notorious for its ability to write things in supposedly plain language that are in fact too confusing for most people to understand. 

Jesse: Yeah, so a person is accused of a crime, suspected of being incompetent to stand trial for that crime, sent to a Department of Mental Health facility to be evaluated for competency, and that evaluation is supposed to happen within 60 days.

But how does that work? Is it as simple as a clinician just checks a box that says, competent or not competent? Does someone from the DMH facility just declare their findings to the judge? How does that process work? 

Elizabeth Satchell: They write a report and it just sort of depends on whether the judge, prosecutor or defense attorney agrees with the report from DMH. And so, If that person is found not competent to proceed at that point, and everyone's in agreement, that person is just committed to the Department of Mental Health and then they receive treatment to try to regain competency. Usually around six months or so there's a report by DMH saying, Yes, we've regained competency, or, No, we need more time to regain competency. Now if they are found incompetent and everyone agrees with that, that’s just kind of really easy. The contested part is what triggers a lot of hearings with additional witnesses, et cetera.

So if, let's say, Department of Mental Health says the person is competent, and frankly that's what happens a lot. It's actually quite hard in my experience for someone to actually be found incompetent by DMH. I think part of it is during the initial evaluation, it seems like DMH does a brief evaluation, especially with Covid, it's usually over Zoom or some kind of video conference. And so I think it's really hard to gauge someone's competency just over video for like 20 or 30 minutes. If I have someone who has a competency issue evaluated by a doctor, usually it's a full day of evaluations before our doctor determines whether the person's competent or not, because like I said earlier, we don't wanna trigger this statute if we don't have to because it's just another type of prison.

Most of the time, I will say DMH under this initial evaluation does find the person competent, at least in our experience. And then if we don't agree with what DMH says, then we can request to have time for our own evaluation, so we can hire someone to have a second opinion. And so we have to make a written request within so many days, 10 days I believe. And then we have another, I believe, 60 days. There's a specific number of days we have to get our own, you know, second opinion. And then once we do that, if we have conflicting findings by the doctors, then we have an actual hearing where we can present witnesses and evidence, et cetera.

During this initial hearing, at this point, a judge could actually call a small jury of six people to determine whether the person is competent or not. However, that usually doesn't happen. It's usually just attorneys and doctors and battle of the reports. Then at that time, the judge determines whether the person should be committed to the Department of Mental Health for treatment, and so whether DMH agrees with it or not, the judge makes the determination at that point. And if the judge determines the person is not competent and commits them to DMH, then that person gets treatment at DMH to try to make them competent. And that goes along with the six month phase. 

Jesse: This sounds like a process that is necessary to some degree cuz there are a lot of ethical questions about trying someone who isn't, doesn't understand what's happening.

Elizabeth Satchell: Right. 

Jesse: But there's a lot of, also a lot of questions of, even if that is correct, even if your assessment is correct, this person doesn't comprehend then they could be in that treatment facility. They're basically there until further notice, until it is determined that they are competent. Elizabeth Satchell: Right. 

Jesse: So if someone is in a facility for months, if not years, and someday it is determined they're competent, does the time they spent in the facility count towards time spent if they are convicted of that crime or something like that?

Elizabeth Satchell: Yeah, that would be our argument, yeah. I mean, I've had people, they went to DMH on a misdemeanor and they spent more time in DMH than they would have under the statutes if they were found guilty at trial. But yeah, it can get out of control. And so if someone has a lower charge like that, then I usually try to see if there's some kind of alternatives.

Jesse: Are you encountering situations where someone is charged with a misdemeanor, could be trespassing, it could be urinating in public, something like that, and that then ends up with them being caught in this very serious process where they can be detained for almost, I mean, it seems like as long as there's a question of competency, they can be detained for an indefinite period of time.

Elizabeth Satchell: Yes.

Jesse: Okay. 

Elizabeth Satchell:: I really look hard if I have a lower level like misdemeanor stealing, or like misdemeanor assault or something. We really look hard at, like if the person's incompetent or has a serious mental illness or something like that. We try to figure out an alternate way rather than triggering this DMH process.

I've had a bunch recently, in the last couple years where pretty minor offense but they have an intellectual disability or something like that, and so they actually just really need a guardian. I don't, we don't want to jump to guardian, that's another whole issue that can be abused, but if there's some kind of way to resolve it without going the DMH route on something really low, then we try to look for alternatives. DMH alternatives to incarceration. 

Jesse: So with this competency process, someone can be accused of a misdemeanor, something like public urination, trespassing, stealing some food, something like that. And then have their competency questioned and spend more time being detained for evaluation in a psychiatric facility than they would have if they had gotten the maximum sentence for that misdemeanor. Which is frightening. 

Michelle: Oh my gosh. Okay, continue. 

Jesse: Okay, so we've been talking about what happens if someone going through the criminal process is diverted to a psychiatric facility, but what about the time in between? Is there a waiting period before that person even reaches the psychiatric facility? 

Elizabeth Satchell: A lot of times there is, and we often don't know how long that person is going to wait either, they could spend months and months in jail. Recently I got a case where, I actually didn't get his case until after he was delivered to the Department of Mental Health, but he was in the jail and I was aware that he was in the jail, we just didn't have his case yet. And he was there for months and he was playing in his own feces, smearing it on the wall, doing this weird like bird holler/hoot thing and banging his head against the wall. And he was there I think for months before a bed opened up at the Department of Mental Health.

Jesse: So whatever the condition was when the person first entered the system, it's probably safe to say it did not get better during that time. 

Elizabeth Satchell: Right. And if someone is in the throes of a mental health situation like dementia, they don't know what's going on. Or let's say they're developing schizophrenia and there's hallucinations and they’re just out of it, or kind of seems out of control in jail, they're usually put in solitary confinement, which makes things worse. They're often manhandled by officers who just don't understand what's actually going on or how to deescalate the situation. Sometimes they're stripped down and put into what's called a pickle suit, just like a loose covering, sometimes they're strapped to a chair. So really they can be tortured. In my mind, it's torture. And then things are just made worse by how they're treated in the jail. It's terrifying. 

Jesse: So there are these pitfalls, these nightmare scenarios that can arise within this system. But in theory, someone whose competency is being questioned should arrive at the Department of Mental Health Facility and be evaluated for competency within 60 days. Then someone from that DMH facility gives the findings from that evaluation to the court. So what happens next? 

Elizabeth Satchell: If the defense attorney or someone doesn't agree with what DMH says, we can get a second opinion and then have a hearing. And then judge will either find that person competent and usually agree with what DMH says, or commit them to DMH and agree with what our expert says. And so if they are committed to DMH, then they go to the DMH hospital and then they receive treatment to try to regain competency and so they might receive medication, other kind of treatment like that. But then they also take like these classes, where they're taught, you know, this is what a judge does, this is what an attorney does. And then they're kept there until they regain competency. 

Usually at around six months or so, they provide a report to judge, although it can be before that if that person regains competency. But at six months, they have to provide the judge with a report unless they ask for more time, and then it's just, six months, six months, six months. Until a determination is made that they have regained competency, or there's no reasonable probability that that person will regain competency in the foreseeable future. So that triggers two other things. 

Jesse: One thing that's really interesting is this idea of giving someone classes and workshops, or something on understanding this is what an attorney does, this is what a judge does, this is how a court works. Because I imagine that most people in the general public would benefit from lessons like that. 

Elizabeth Satchell: Yeah. 

Jesse: Is that the bar for competency? Are they specifically asking, does this person understand the legal system? Or are they capable of understanding the legal system if taught?

Elizabeth Satchell: In our opinion, DMH focuses more on can you identify all the people in the courtroom and what they're supposed to do. We think, just from on the defense side, we think that they focus more on that part versus being able to assist in their own defense. And so when we do have a battle with DMH it's usually about the second prong, being able to assist in their own defense. Because I think at some point if someone hears something enough times they'll be able to parrot, you know, a judge sits up there and they determine this, or my attorney is supposed to help me. But our focus and our real concern is whether they can assist in their own defense and they actually understand their rights and how they wanna exercise them. And decisions to make as far as whether they wanna testify, whether they have witnesses and can tell us about them so we can investigate the case, et cetera.

So just personal experience, DMH tends to focus on the beginning part, who the judge, attorney, et cetera is, and then we're more concerned about whether they can actually assist in their own defense. That's usually where the battle is, at least in my cases and experience. 

Jesse: So the person's at the point where they are in the facility, they're being evaluated for competency, they're receiving access to classes, things like that. What happens then? What's the rest of the process? 

Elizabeth Satchell: So at some point we have these six month reports from DMH, and so if a person is found competent by DMH to proceed, and the defense attorney usually will meet with their client to see are they in fact better, et cetera. If they don't agree with what DMH said and the defense attorney still thinks that person is incompetent, it can trigger another second opinion. And so, written request, again within 10 days of the report, up to 60 days to another second evaluation, and then, you know, the battle continues on the other side. If DMH does find that the person is basically permanently incompetent, they can't regain competency in the reasonably foreseeable future, then that person is committed to DMH for the purpose of DMH pursuing a guardianship. And so that person could remain hospitalized for the rest of their lives, but under the guardianship. I mean, they could be released to the community, but they'll have a guardianship. 

Jesse: So you have someone who's being accused of a crime and detained in a jail, and then is suspected of meeting the legal standard for being classified as incompetent. So then they are sent to a Department of Mental Health facility, which is a different branch of the government than the Department of Corrections. Different departments, different guidelines. And in this DMH facility there are some sort of classes focused on teaching this person how a courtroom works. But what is also really important to note is that the DMH facility is a different setting, with different policies. That doesn't necessarily mean it's a safe place, or a place that is actually conducive to recovery, but it could give access to different routines, different structures, increased access to medical care and counseling, access to different medication. So a person is in jail, suspected of lacking some type of competency, sent to a DMH facility where something in that facility might have helped them appear more competent to the other people involved in this process, then what happens? They're sent back to jail, to the Department of Corrections, where they may then lose access to whatever it was that might have been helping them.

Michelle: Oh, that makes a lot of sense. A lot of sad, sad sense.

Jesse: And what is likely to happen when this person who has been arrested, is incarcerated, who may have been in jail for weeks, maybe months before being detained in a psych facility for 60 days, or six months or possibly years. What is likely to happen to this person every time they are shuffled between these different policies and practices? Whatever it was that they might have been struggling with before they entered this process it's probably not going to get better. Michelle: Nope, nope, nope.

Jesse: So this brings us to the end of the interview where I asked if there was anything else that people should know about these intersections between mental health conditions and the criminal process. 

Elizabeth Satchell: One of my big things is not overlooking the rural areas. There might be a health facility, or mental health facility in like a big city with taxis and buses and Ubers, and so someone can usually find a way to get there. If you're in a rural community, you're out in the middle of nowhere, you might not have good phone service or internet service. The mental health facility might be an hour away driving, but if you don't have a vehicle, and it takes you all day to walk there. And usually if you're out in the middle of nowhere, unless it's your country home or something like that, usually you're low income. So even if you can get to the mental health facility, you still have to pay. Oftentimes it's on a sliding scale, but I mean, if you don't have $20 you don't have $20.

There's also issues, at least in public defender cases, a lot of people don't have IDs. And so, mental health facilities, usually a sliding scale but you have to have ID, social security card, et cetera. So, it's one thing to say, go get mental health treatment everything will be okay, when you can't even get to a facility. If you get there once, you can't get there for every single, you know, follow up appointment. Also, if you're given medication, being able to afford that or even getting to a pharmacy to get it. Also, if there is a mental health facility in a rural area, it might not be the appropriate place for someone with serious mental illness either.

And so we see a lot of cases where someone's low income, of course we’re public defender system. So someone's low income, maybe has a serious mental health issue, but just hasn't been able to get treatment because they live in a rural area and there's just no access. So these are a bunch of things policy makers and people thinking of solutions to these problems, they overlook the people in the rural communities. 

Michelle: I'm still waiting to find the state I'm happiest living in andI don't, I don't think Missouri is gonna make the cut.

Jesse: Okay, well then maybe you'll find it next time on Committable, when we'll be looking at mental health laws in Maryland.

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

S3 Episode 4: Virginia

Jim:  Okay, what does that other guy always say? I always need to look it up, what does the Radiolab guy say? 

Jesse: What? Which one? Which Radiolab guy? 

Jim: What does he say? 

Jesse: Which one? There's more than one, you know there's more than one, right? 

Jim: What if you said like, I'm Jesse Megan, and I said, and I'm Jim McQuaid.

Jesse:Ah, okay, I get it now. Sure we can do that, uh, Hi, I'm Jesse Mangan. 

Jim: This is Jim McQuaid. No, don't use that one, that one's stupid. Can you say that again? Can you say it as if I'm responding to you? 

Jesse: Uh huh, sure. Hi, I'm Jesse Mangan. 

Jim: This is Jim McQuaid, I'm excited to be here, no, no I'm not. That's a lie.

Jesse: What?! Jim, you've ruined it, you've ruined the intro. 

(laughter)

Jesse: I hope you're happy with yourself.

(laughter)

Jesse: Let's just go to the music.

(intro music from Reasonable by Christopher G. Brown)

Jesse: This is Committable, a podcast about involuntary commitments. I'm Jesse Mangan and I'm here with Jim McQuaid. 

Jim: I'm Jim McQuaid, co-producer at Committable.

Jesse: And for this season we are going state by state to look at mental health laws throughout the US. In this episode, we are going to be talking about mental health laws in Virginia and to learn more about those laws I spoke with Ren Faszewski. 

Ren Faszewski: Hi, my name is Ren Faszewski. I am a disability rights advocate with the Disability Law Center of Virginia. DLCV is the Protection and Advocacy Agency for the Commonwealth of Virginia. P&As are a federally mandated agency, every state has one, and we are tasked with protecting individuals with disabilities in their communities and ensuring their rights. This of course has a huge scope, this can go from special education, community accessibility, and all the way to institutional settings. My background specifically, I am on the Institutional Rights Unit, so we work in state operated hospitals, private hospitals, correctional facilities, assisted living facilities, and nursing homes.

Jesse: What is the mental health law in Virginia called? 

Ren Faszewski: In the state of Virginia we have what's called the ECO, that is an Emergency Custody Order. Typically it’s issued by a magistrate and the ECO allows the police to detain a person in a psychiatric crisis and transport them to either an emergency room, or sometimes a CSB, to have an evaluation to determine what scope of services that person needs. This can happen where a loved one, or someone in the community, can go to the magistrate, present the evidence that this person needs to be taken for an evaluation, and the magistrate would issue that order. But law enforcement also have the ability to initiate what's called a paperless ECO. That means based on their professional judgment they feel that this person needs a psychiatric evaluation, so they initiate it on the spot and then later they would do the paperwork to get the approval from the magistrate. But there is criteria you have to meet; you have to have a mental illness, there has to be a substantial likelihood that as a result of that mental illness, that you would be at risk of causing serious harm to yourself or others, or serious harm due to a lack of capacity to care for yourself. So there are standards that need to be met in order to initiate that ECO order. 

The E C O tends to be very common in these situations but to get an evaluation, what we call a pre-screening, you do not have to initiate an ECO. Again, if you were to just take your loved one to an emergency room, they would be able to start that process without an ECO. The ECO is specifically if that individual seems unable to, or unwilling to, volunteer for hospitalization or evaluation.

Jesse: So every state has a process for detaining someone for psychiatric evaluation and in Virginia that process is initiated by an ECO, an Emergency Custody Order. Usually an ECO involves some sort of preliminary paperwork process and approval by a magistrate, but law enforcement can initiate what is called a paperless ECO. Meaning that a law enforcement officer can essentially apprehend someone on the spot, detain them, bring them to a facility for evaluation, and fill out the paperwork afterwards.

So my next question for Ren was, at that point where a person is being detained for evaluation, probably in an ER, what options does that person have? 

Ren Faszewski: So they have very little, they are in custody of law enforcement, right? And they are in custody of you until the evaluation's over, until the determination for your treatment has been made. So while they're at a hospital, or the CSB or what have you, the police are there on site and responsible for that person until the ECO expires, or the evaluation's done and whatever determination has been made. 

Jesse: So the police have an obligation at that point to be there until the evaluation is completed?

Ren Faszewski: Yes. 

Jesse: Who is eligible to do the evaluation? Is it only a physician? Or is there a broader scope of people? 

Ren Faszewski: The people who are able to do the evaluations are called pre-screeners. These are folks at the CSBs who have been certified, they are qualified mental health professionals who are licensed. These are the ones who conduct, again, what we call a pre-screening. They're usually employed by the Community Services Board, so obviously if you're at the CSB, they're on site. If they're at an emergency room, they go to the emergency room and they conduct the evaluation there. And again, this evaluation really is determining if that patient needs inpatient care for whatever psychiatric crisis is occurring.

Jesse: If the pre screener decides, Yes, this is a situation where inpatient care is warranted. What happens next? 

Ren Faszewski: There's a couple of things. So again, the standard they have to meet in order to meet involuntary inpatient hospitalization is they have to have a presence of a mental illness. Again, serious risk of harm to themselves, or others, or due to a lack of capacity to care for themselves. They must be in need of inpatient treatment, and that person is either unwilling or unable to consent to treatment. So all of those standards have to be met. You know, if that pre-screener determines that that person really needs inpatient treatment but at that point the individual says, well, I think you're right I really do need inpatient treatment. I want to voluntarily go to a hospital. Then they can recommend them for voluntary hospitalization and have that process moved along. If that is not the case and the pre screener still determines that inpatient hospitalization is needed then they recommend what is called a TDO, or a Temporary Detention Order.

This is a legal document saying that this individual must receive immediate hospitalization, for stabilization as well as evaluation on an involuntary basis, and this is a 72 hour period. Within that 72 hours they have to have a commitment hearing to determine whether that person requires further inpatient stabilization. So the pre-screener makes that recommendation and then would submit it to a magistrate. The magistrate, based on that information, would determine whether they are going to grant the TDO. The magistrate does not need to issue a TDO, they can make a different determination. If they determine that a TDO is not warranted then that person needs to be released from custody at that time, not only from the hospital itself, or the emergency room specifically, but also the custody of the police. So the ECO would end once that determination's been made. And, again, they also can decide to be hospitalized voluntarily, particularly if the pre-screen or the magistrate is saying you need to be hospitalized because there are pitfalls that can occur with involuntary hospitalization. 

Specifically, if you go through this process and are TDO’d and then involuntarily committed, you do lose the right to possess a firearm in the state of Virginia. So that is a right, that is, is removed if you have this on your record.

Jim: Can you just specifically say what a TDO is?

Jesse: Yeah, there are a lot of acronyms throughout this conversation, so let's go over some of those terms. The first is an ECO, an Emergency Custody Order. An ECO initiates the detention for evaluation process where someone can be apprehended by law enforcement and brought to a facility where they will be evaluated by a pre-screener.

Jim: Emergency Custody Order, got it. 

Jesse: After the ECO gets the person to a facility, a pre-screener evaluates that person to determine whether or not they meet the criteria for a TDO, a Temporary Detention Order. A TDO is a 72 hour hold for evaluation in a psychiatric facility. 

Jim: Temporary Detention Order, okay. 

Jesse: So those are the two main terms that we're talking about but in relation to those terms you'll also hear other terms like CSB and DBH. CSB is a Community Services Board, I probably should have explained this one earlier because when law enforcement apprehends someone with an Emergency Custody Order the pre-screening evaluation can happen at a CSB, it doesn't have to happen at an ER. Because a Community Services Board is a location within a county, or a city, responsible for delivering community-based behavioral health and developmental disability services. They really have a wide range of services that they are responsible for, and one of those services is providing 24/7 access to a pre-screener. 

And D H is the Department of Behavioral Health.

Jim: D-B-H. 

Jesse: And the last term is EBL, the Extraordinary Barriers List.

Jim: EBL, Extraordinary. Barriers List, and these aren't barriers that we're excited about because they're so amazing?

Jesse: No, The Extraordinary Barriers List is a list of people who continue to be detained in a psych facility after they have been clinically cleared for discharge. But we'll hear more about that later in the interview. 

Jim: Okay, got it. 

Jesse: Okay, so those terms are going to come up throughout the interview but the point we're at now in the conversation is the ECO/TDO process. So a person has been detained for evaluation by an ECO, an Emergency Custody Order, then evaluated by a pre-screener. And that pre-screener has determined that yes, this person meets the criteria for a TDO, a Temporary Detention Order. So what happens then?

Ren Faszewski: When the TDO is issued that initiates what we call a bed search, the pre-screener is responsible for finding the hospital bed that this person will be occupying. This is important with the ECO process because the ECO still continues during this bed search. So if a TDO is like, yep, we're gonna do this, the ECO continues until they find that bed. The reason that is important is because there is a 2014 law that we refer to as Bed of Last Resort. So if somebody is under an ECO and is going to be granted a TDO, again, they have this eight hour window in which that person needs to be evaluated. So again, that includes the transport to where they get that evaluation. The law states that at the end of this eight hour window, if they cannot find a private inpatient bed, that person will be admitted to a state operated facility.

Jesse: With the bed of last resort policy, if they can't go to a private facility then they'll go to a state run facility. Can you give some context about what the difference between those two types of facilities is? 

Ren Faszewski: So, private hospitals of course, any hospital might have some sort of psychiatric inpatient unit. State operated facilities in Virginia are run by our department of Behavioral Health and Developmental Services. The state operated psychiatric hospitals have seen a very significant change since the bed of last resort law. Prior to that the majority of TDOs went to private facilities, they were the ones who were managing acute crises. The state operated facilities were much more heavily populated with folks who required longer term care. But that's also where folks who are involved in the forensic process, specifically not guilty by reason of insanity, they're the ones who get their treatment at state operated facilities. After the bed of last resort law, private hospitals, the admissions through TDOs has declined dramatically. While TDO admissions to state hospitals have increased dramatically. So there's been a significant change in the kind of patients that have been at the state operated facilities. 

To kind of give a number, in 2015 only 11% of state hospital admissions were through the TDO process. By 2020 it was 25%, so that's a very dramatic increase. There's been a lot of discussion and debate over why that is but of course, part of that is that if no bed is found within eight hours they already know that that person's gonna end up at a state hospital.

There was actually a 2020 report from DBHDS that found that during a bed search local responders called an average of 25 to 30 different private providers to try to find a bed. Most commonly documented reasons for refusal included patient acuity, specifically that, Oh, they have a history of aggression, or they're currently possibly aggressive, co-occurring diagnoses, such as like developmental disabilities, or other medical conditions. So private hospitals have a lot of leeway to say that we are not able to meet the needs of this person, we do not have a bed that suits this person, but again, because of this law, state hospitals have to accept them. 

You know, the census numbers have also increased dramatically, so that has put a considerable strain on the state hospital system. In addition to the fact that there are hundreds of folks at state hospitals that do not need to be there. The Department of Behavioral Health tracks what is called the Extraordinary Barriers List. These are folks that have been determined clinically ready for discharge but have not yet been due to some sort of barrier. In September, 2021 DBH just reported that there were 198 people in the state facilities that were on this EBL list. For context, Central State Hospital, excluding the maximum security unit, has 166 beds. So if you discharged everyone on the Extraordinary Barriers List, you would free up an entire hospital overnight. 

Jesse: So, the bed of last resort law seems to have been designed with the intention of guaranteeing that a person who's determined to meet the criteria for a TDO will definitely end up in some sort of psych facility. And if the pre-screener can't find a bed at a private facility, then that person is going to a state facility. So it seems to have created this sort of paradigm shift where private facilities can choose which patients they want to accept and divert everyone else to state facilities that can't say no.

And the EBL, the Extraordinary Barriers List, seems to indicate this other problem within the system where people clinically approved for discharge aren't being discharged. That's almost 200 people being detained longer than they need to. 

Jim: Just another instance of a system in place that could conceivably work but there is this lack of resources and a lack of, you know, infrastructure to actually make this work.

Jesse: Maybe? Although even if all of these facilities were given the necessary resources I think there would still be a valid debate about whether or not this law is actually helpful to the people being forced into those facilities. 

Jim: Yeah, that's a good call. 

Jesse: And so at this point, we've talked about the ECO and the TDO. The ECO forces someone to a place where they're going to be evaluated. The TDO is up to three business days of detention that can lead to a civil commitment, and that could lead to a person spending weeks, months, or even years in a facility. And it's quite possible that the person being pushed into this system was actually experiencing some sort of distress, they may have genuinely needed help. But during this process they may have been apprehended by police, handcuffed, detained involuntarily for evaluation, confined involuntarily for treatment. They may have lost their job, their home, custody of their kids, relationships. They may have gone through all of that and at some point they're released. 

So, I asked Ren, at that point when they're released, what happens then? 

Ren Faszewski: It is the responsibility of not only the hospital but the Community Services Board that serves that individual's location. So, a person may already be receiving services from the CSB but if a new individual, say from like Arlington County, ends up at a facility then it is Arlington County's responsibility to provide what we call a discharge plan. A discharge plan is supposed to be initiated during the admission process, so what is the clinical criteria that we are looking for to determine that this person is ready to be discharged. And the discharge plan not only includes, you know, the clinical services a person may need, so connecting them to case management services, connecting them to PACT or other community-based services. It also can include housing referrals, so getting them connected to permanent supportive housing. This can also include, okay, so upon this person's discharge, maybe they need SSI or SSDI benefits, or Medicaid or Medicare. It's making sure that those processes are started as well. So the purpose of a discharge plan is that once a person is released into the community, there should be a wraparound of services that meet their needs.

Again, whether it's clinical, housing, financial, what have you. 

Jesse: So you had mentioned that one of the motivations for wanting to avoid an involuntary commitment could be that long-term it can affect whether or not you can own a firearm. 

Ren Faszewski: Mm-hmm. 

Jesse: Are there any other potential long-term impacts of an involuntary commitment?

Ren Faszewski: Well, of course involuntary commitments can impact your job. If you had a job before going into a hospital you may not have it upon being released because you don't know how long you're gonna be there. We have seen people lose their housing being involuntarily committed, cuz again, they're there for an undetermined length of time. We have seen, particularly for folks who are on the EBL and folks that are there after they've been determined clinically ready for discharge, and they simply aren't. You know, there's a period where once you're stable, why it's so important to get released is cuz if you're there longer and longer and longer, you're gonna backslide. That frustration, the fact that you're continually in a very restrictive setting, you tend to see a resurgence of psychiatric symptoms and then suddenly that person is, well, he's no longer ready for discharge because, you know, he's no longer clinically stable. And so the risk of people losing that clinical stability and again, being in the hospital for even longer is certainly a risk with these involuntary commitments.

So there's a lot of different consequences to the involuntary commitment process for folks cuz it's a highly restrictive setting and there's very little individual choice as to how long you stay there. So there's a lot of unintended consequences to that. And certainly we want to, again, prevent as many as possible if we're able to provide them the services they need in the community but you know, if they're in there, we wanna make sure that we are discharging folks when they need to be discharged, when they're clinically ready, and getting them out and into the communities where they can return to their lives, return to their families. And again, get the best outcomes where they're connected to.

Jesse: Okay, so to recap what we have learned about mental health laws in Virginia. A person can be brought in for an evaluation by an ECO, an Emergency Custody Order. They are on that ECO and monitored by police until a pre-screener completes an evaluation and determines whether or not that person can go free, or if they meet the criteria for a TDO, a Temporary Detention Order. If that person is believed to meet the criteria for a TDO, then they continue to be detained until the pre-screener finds a bed at a psychiatric facility. If the pre-screener does not find an available bed at a private facility within eight hours, then the bed of last resort law says that person must go to a state facility. And once a person reaches a psychiatric facility the TDO lasts for 72 hours and during that time the facility can apply to have that person committed. If a person is committed, then they may be detained for weeks, months, or possibly years, but at some point it is very likely they will be clinically cleared for discharge. When that person is cleared for discharge, then they should be released with a discharge plan. Unless, for some reason, the facility decides not to release them, then they end up on the EBL, the Extraordinary Barriers list. Where essentially they continue to be detained for possibly unclear reasons even though they have been clinically cleared for discharge from that facility, and I don't see how that isn't a clear violation of their civil rights but here we are. 

Jim: Okay, I love our system, it's so wonderful. 

Jesse: I'm glad you're loving this Jim, because next time, on Committable, we're going to be talking about mental health laws in Missouri.

Jim: Next time! On Committable!

Jesse: Oh, yeah, we should probably be doing that. You fixed it, Jim! You fixed the podcast! Jim: Totally did. 

(laughter from Jesse)

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

S3 Episode 3: Alabama

Michelle:  Um, are we waiting for Jim or no? 

Jesse: No, but the last time I recorded with Jim, he hit his head on the microphone. 

Michelle: Oh, that's adorable. That is adorable. 

Jesse: All right, let's do this intro, the “This is Committable” bit with, uh, preferably the least amount of physical injury possible. 

Michelle: Great

(laughter from Jesse and Michelle)

Michelle: This is Committable.

Jesse: Awesome, and onto the interview.

Jesse: This is Committable, a podcast about involuntary commitments. I'm Jesse Mangan, and I'm here with Committable producer Michelle Stockman. 

Michelle: Hello, I'm Michelle Stockman. 

Jesse: In this season of Committable, we're going state by state to better understand mental health laws throughout the US. Because these laws can be ridiculously complicated and it can be really difficult to understand why your rights are being taken away, and what you might be able to do to prevent that, as it's actually happening. And for this episode, we're going to be looking at mental health laws in Alabama. And to better understand those laws, I spoke to James Tucker. 

James Tucker: Hello everyone, my name is James Tucker, I'm a lawyer. I am the director of the Alabama Disabilities Advocacy Program, we're part of the law school at the University of Alabama in Tuscaloosa. We provide a broad range of services to people with disabilities, and that includes people with SED or a mental health diagnosis. We are part of a national protection and advocacy network providing legal services to people with disabilities throughout the country. 

Jesse: Can you briefly explain what an SED is? 

James Tucker: Yes, Serious Emotional Disturbance. So that means that we are providing services to young people who may have an emotional issue that they're struggling with. But as you may know, the professional practice has been to try to avoid labeling young people unless you have more confidence in the ability to make a diagnosis. 

Jesse: So I started this conversation by asking about current mental health laws in Alabama but James wanted to first take a step back and talk about a really important federal case that took place in Alabama. Wyatt v Stickney.

James Tucker: In Alabama, we had the Wyatt versus Stickney case, and before the Wyatt case, the law in the United States was that a person who was involuntarily committed did not have a right to treatment after the commit. That case was filed because there were literally thousands of persons involuntarily confined by the state of Alabama without the provision of treatment. That federal court declared in 1971 that it is a constitutional right of persons in the United States that once a person is involuntarily committed, they have a constitutional right to treatment. And that to fail to offer that treatment after an involuntary commitment would be a gross injustice. As seems abundantly clear, but that's been the law of the land now for only the last 50 years. 

Jesse: So it was essentially just a form of detention?

James Tucker: That's exactly right, it was an utterly classic form of warehousing and stands in a direct line of succession, if you will, to poor houses and all kinds of institutions for the confinement of persons whom society did not welcome in the hundreds of years before worldwide. 

Jesse: Does that change then affect legislation? Has that then affected the wording of the current mental health laws? 

James Tucker: Yeah, it hugely affected legislation at both the state and national levels. In fact, Congress wrote a law in the mid seventies that created the funding mechanism that funds my office, and 56 sister organizations in every state and territory in the country. Now, it also had an effect on how local laws, usually state laws, about involuntary civil commitment work. In other words, it created standards. It said there has to be due process, there has to be a reason. The person being accused has to be able to go to a hearing. And that the person has to be able to have access to representation in the courtroom. 

Jesse: So it wasn't until the 1970s that the US formally acknowledged that people being involuntarily committed to psychiatric institutions have a right to due process, and that they have a right to treatment. A federal court establishes some basic standards that have to be met in order to justify an involuntary commitment, and my next question for James was, What are those basic standards that mental health laws throughout the US are now required to meet?

James Tucker: Yeah, the basic standard is roughly as follows. I mean, historically throughout the United States and especially in this state, let me give you a classic scenario of what happened and how the absence of law worked to the detriment of persons facing this process. Classically, what happened in Alabama for much of the 20th century, and this is hugely gender-based and race based, so it shows the intersectionality of these rights also. But classically in Alabama you can imagine that up until roughly 1970, if there was a relatively prominent local white man who had tired of his wife, he could go to the local probate court. The probate court usually was not a lawyer, the probate judge was not a lawyer and still isn't in most counties in Alabama. And the probate judge would issue an order to the sheriff to detain, in this scenario, the wife and have that person sent to the state psychiatric hospital. 

Some of those persons detained in that fashion were confined to the hospital for more than 50 years and died there in their old age. That was reality in Alabama and for much of the country until 1970 or 71. Then what changed is that a set of standards is created that basically provides the basics of due process. Due process is the constitutional issue here, and basically what that means is that now the process requires that usually a petition is filed in writing that must, on its face, state sufficient grounds, which if true, would warrant an involuntary commitment. But the filing of that petition is not enough, the court has to hold a hearing. The court has to give notice to the person who is the subject of the potential commitment, and that person is entitled to counsel. That person is also entitled to confront the accuser or the petition. Only, if after conducting a hearing that gives due process, only after conducting that kind of a hearing now may a court involuntarily commit a person in this country. 

Now there are many points in that process where the process which is due may not be very meaningful, it may not be given in the way that you and I would like. But that's how it's supposed to work in all 50 states.

Michelle: I do wanna highlight a couple issues that I wanna call attention to. I agree, we do need people who are educated on these things, who are aware of these things, who are critically thinking on these things. And we do need these processes. And so I do like when people call attention to, Hey, you need to make sure that there's a hearing in front of an official person of some kind. But how do we decide who's an expert?

How many people are operating in these processes with bad faith? 

How many people are bungling them because they don't care? They don't bother to educate themselves. They've somehow managed to find their way into an area of expertise of which they really haven't actually put in the time and attention and thought, or they've put all their thought and time and attention into the academics of it without taking into consideration the humanity of it? And so yes, there's due process, but you can do everything the right way and still get completely screwed over by this system.  

And I feel frustrated when we only focus on that first one, where that first one is somehow believed to be the solution. Like, if we just make sure a psychiatrist is in the room, and if we just make sure that they go through this process and this proper hearing process, then it'll be fine to strip them of their rights and institutionalize them for eternity. 

Jesse: Yeah, I think that speaks to the conflict between the theoretical intent of the law, the hope of protections that would be offered, and the process as it actually exists. Which is something that James spoke about a little later in the interview.

Okay, so to set this up. In Alabama, as in many states, the commitment process often begins with some sort of detention for evaluation, which can be triggered by a person going into a probate court and applying to have someone else detained for evaluation. So there is the applicant, the person who makes a claim that this other person needs to be detained and evaluated, and there's the subject of that application. The person who, possibly without any notice, is about to be dragged into this system. So if the application gets approved how does this process guarantee that the subject of the application will be able to take part in the hearing? How does this process guarantee that their rights will be protected?

James Tucker: That's where due process starts to break down and you know, we've described how the process works as directed in a statute, and how it is supposed to work, that's not how it always works. In fact, for example, state of Alabama law regarding involuntary commitment says that the subject, to use your term, can waive his or her appearance at the hearing. And all too often the appointed lawyer will waive that appearance for the subject, potentially without the subject's permission. So that the process is still fraught, in individual cases, with the genuine delivery of all the due process protections. 

There's one other thing that I wanna say, and I would imagine that you and I share an interest. We would hope that our public mental health systems across the country are able to provide diversionary and support services on the front end without our ever getting to the point where a subject faces possible commitment. What we're talking about is an end of the line when everything else, every other kind of support, has failed. Or, again, that's how we would hope that these systems would function. And I just wanna note the importance of diversion efforts. 

Jesse: So in that situation, there's a court appointed attorney who may or may not have an overwhelming number of cases that they have to deal with, and they're faced with the decision of, Do I waive my client's rights to be at this hearing? Or do I have the police sent to pick them up?

James Tucker: I think the trick for the lawyers is that often you've got, as you say, a local overwhelmed, publicly paid, in other words less well compensated, lawyer providing a service on an appointed basis. And that lawyer may or may not have expertise in the area, and that lawyer's ability to keep his or her office open may depend on receiving appointments from that probate court. 

Jesse: This lawyer, who's being paid by public funds, is trying to work what sounds like the highest number of cases they can in order to make ends meet. So that creates a real complication with trying to give as much time as is needed for each case. 

James Tucker: It definitely does. It's a challenge in the way that we fund public legal representation that is very similar to the challenge faced by individuals who serve as public defenders for criminal charges against individuals. 

Jesse: Okay, so at this point in the process an application has been filled out and a judge has approved the application as sufficient, so the subject of that application is appointed an attorney. There is a really concerning possibility that the attorney waives their client's right to a hearing without telling the client. But as long as that doesn't happen, then this person should be brought before a judge for a hearing. So my next question for James was, Once the judge makes that decision is it the police who are sent out to apprehend that person and bring them in for the hearing?

James Tucker: Unfortunately, often it is law enforcement, obviously there are more humane ways to do that. And there are programs around the country that are incredibly active in helping to divert individuals, the CAHOOTS program in Oregon that many people are familiar with would be one such example. But yes, often law enforcement is sent to bring the subject to the courthouse.

Jesse: So if a person is at the point where they have been brought to court for a hearing based on an application that someone else filed, what rights do they have there? How does that process work? 

James Tucker: They have the right to be heard, but often as you can imagine they may not have a good and close working relationship with the attorney. And the attorney might usually, the reflex is going to be the attorney is going to cooperate and facilitate with the court the commitment. We offer to investigate allegedly unfounded commitments and we find that most of the time there is a legitimate basis for commitments. I think that's because largely there is at least a minimally funded public mental health system that usually is going to have provided some intervention or support before you get to the point of a petition. Petitions can still be abused, but I think that's the exception these days.

Jesse: It sounds like in the majority of cases you've seen in this process, there is actually some type of distress there, there is some type of help that is needed. The real nuance becomes, is this actually a case where involuntary help is needed? 

James Tucker: That's exactly right, it's a nuanced matter, and that's partly why I wanted to provide a little bit of background about what the law was like 50 years ago. To illustrate that this practice really has evolved in recent decades to a point now where I think generally you can expect that, and there may be close questions, there may be nuanced issues, but usually there is at least some support now, some rational objective support, if an involuntary commitment is occurring.

Michelle: One of the things that we're not good at acknowledging, or really thinking through, are the limbo states between actions. The court isn't magically open for walk-ins, and so in a lot of these cases when it's uncertain where you are going next in this process you are trapped someplace and being trapped is traumatizing. Being trapped and realizing you can't escape from something, and that you don't have autonomy, temporarily even, and that you also don't have any of these basic things. I mean, anything that gives you comfort, even minimally, might be removed from you. 

Jesse: That is something that none of the laws that we have seen so far really account for. Any length of forced detention, no matter how brief, can be traumatic. And if you reach this point in the process you're a person who may have been apprehended by police, involuntarily brought before a judge, and then involuntarily committed to a psychiatric facility. There can be limbo periods between the apprehension and the hearing, or the hearing and the psychiatric facility where you continue to be detained and forced detention is never insignificant.

So if you are forced through this, if you do end up involuntarily detained in a psychiatric facility, What do you do? What options do you have? 

James Tucker: As a practical matter there aren't many good options, but one option would be to call an office like mine and to ask us to investigate. We are an outside third party. We are a nonprofit civil rights law firm funded by the federal government to assist persons, in this case who may have a mental health diagnosis. That's our job, which means my duty as a lawyer is to that person who now is a patient. My duty is not to the court, or the doctor, or the hospital that is detaining that person. So that's one option. 

Another option would be that many of these facilities are going to have a patient advocate, and one would hope that that employee of the hospital does exercise independence and takes that role seriously. There's an array of other mental health advocates, for example, as a result of the settlement of the Wyatt case that I referred to earlier, there is an office at the State Department of Mental Health, the Office of Advocacy, with more than two dozen full-time employees. So there are options for some kind of review and some kind of assistance if a person seeks that kind of help.

Jesse: One thing that seems to be a common pattern is that once someone has gone through this system it seems that they're much more likely to be brought into it again. I wonder about if you've been involved in any work trying to deal with that process, because the thing that seems really problematic is once this is on your records it can affect how you're viewed by future treatment.

James Tucker: I absolutely agree with what you are saying and yes, you know, if you look purely as a matter of medical literature, once an individual has been committed then that person is at far greater risk of a future commitment than not. And at far greater a risk than a person who does not have such a commitment on his or her record. We've been involved in advocating for the kinds of supports that you were describing to make sure that individuals receive support and transition services so that they can make a smooth return to the community. 

One of the things that I really think about in this regard, and I think about it, for example, with regard to a number of institutional challenges that we face. I'll make a really simple analogy, in foster care, you can't think that you're gonna remove a child from his or her family, fix the child, and then return the child to that family. I think the analogy holds here, you know, we need to be able to see individuals in their family systems and in community systems of care. And we really need to step up the ability to provide supports to people in the way that they prefer, so that they are making decisions about their own life.

One of my friends talks about the medicalization, or the overmedicalization of this whole process, as you and I have walked through it. Yeah, courts and doctors have a lot of power and individuals lose power over their own decision making. What we really need to do is find ways to support individuals to gain the supports that they want for themselves.

Jesse: Is there any option to, if you've been released from a commitment, can you appeal that being on your medical records? Is there any process to say, I think that should be removed from my medical records? 

James Tucker: You can, but it's difficult and as a lawyer, I've had a handful of people ask me that question, and I've looked at medical records and sometimes advised persons that if you do that, you're actually gonna make life harder for yourself because then it's in your medical record that you challenged this commitment. But there was a court hearing that said you deserve to be committed, so you may be setting...if you have that entered on your medical record and the next doctor that you want to go see requests those records and sees that you contest everything that's in that record, you may have a hard time finding any care services or treatment as you prefer.

Jesse: And so this brings us to the end of the interview where I asked James if there's anything else about the commitment process in Alabama that is important to know.

James Tucker: One thing that we find is that even though the law is in a statute, because of the way that local clerks and courts operate, it can still be a really idiosyncratic system at the local level, that 67 counties in our state. You know, based on my conversations and connections with people throughout the country, I think it's worth noting that it can still be a highly idiosyncratic system everywhere. Depending on the way the local authorities run their court, their petition process, and it also can depend on, if you will, the wide variability in the availability of upfront supports and diversionary options.

So I strongly encourage individuals to find peer supports, to stay connected with friends, and then if you fear that you may be at risk of an involuntary commitment to seek out services and supports that can help you avoid that because they're out there. 

Jesse: Yeah, that seems like it would emphasize the importance of local support who knows, not just federal or state, but county and local. 

James Tucker: Yeah, you know, they say all politics is local, well all commitments are hyper local. 

Jesse: One of the things I appreciated most about this interview was taking a step back to recognize not just how a law is implemented locally, within a state, or a county, or a city, but also looking at the federal cases that are being interpreted by those more local systems. The sort of cultural shifts that are translated into local practice. 

Michelle: To me, there's so much about this that puts me on the side of the harm reduction movement. That at the end of the day, you know, the most important thing should be someone's autonomy. And if the best thing right now for me is curling up in a ball in the corner on a floor and crying, any number of these types of scenarios, you know, to me the question should be not, How do we get you out of that? How do we stop that? The question should be, How do we make you do that as safe as possible, and have as much support as possible, to make sure that you know there are alternatives when and if you're ready to be done with that. 

Jesse: Yeah, I think you are identifying some of the fundamental tensions that exist in these systems. The complexity of the individual and what that individual needs in a time of distress, and the vast, virtually unchecked authority given to people in institutions that are often incentivized to view the unfamiliar as dangerous. So it is in some ways really sad that it took until the seventies for us to get a case like Wyatt v Stickney that established some protections. But given the tremendous power imbalances in these systems, it is encouraging that the voices of people with lived experience were, eventually, to some degree, considered at all. 

Michelle: Yeah, and it did sound like there was a significant ripple from that one case in Alabama that did spread out through multiple states.

Jesse: We're not gonna overturn things with one big splash but over time we might be able to generate enough ripples to change direction. 

Michelle: Nailed it.

Jesse: And that is the most optimistic you are ever going to hear me get on this podcast.

(laughter from Michelle)

Jesse: Alright, next time on Committable, we'll be looking at mental health laws in Virginia.

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

S3 Episode 2: Pennsylvania

Jesse: Okay. How about you do the intro, the “This is Committable” thing. 

Jim: Okay. This…so I should do a pause like this…

Jesse: Sure.

Jim: Okay…(rustling of movement and sound of Jim hitting his head on the microphone)

Jesse: (laughter) Did you just hit your head on the microphone?!

Jim: (laughter)...Should this be entirely serious or…

Jesse: Yeah, I think that ship has sailed, how about just doing the intro one more time? 

Jim: Okay. This is Committable.

Jesse: Perfect. And cue the music

Jesse: This is Committable, a podcast about involuntary commitments. I'm Jesse Mangan and I'm here with Committable Producer Jim McQuaid.

Jim: This is Jim McQuaid, and I'm ready for an interview. 

Jesse: All right, then let's jump right in. For this season we are going state by state to explore mental health laws throughout the US because these laws can be really complicated and understanding even just the basics can make a huge difference for a person who is forced to navigate one of these systems.

And for this episode, we're going to be looking at mental health laws in Pennsylvania. And to learn more about mental health laws in Pennsylvania I spoke to Brynne Madway

Brynne Madway: My name is Brynne Madway, and I'm a staff attorney with Disability Rights Pennsylvania. As a staff attorney At DRP I work on a variety of issues and I have a particular interest in work relating to folks who have mental health disabilities. And at DRP we work with folks who are experiencing a wide variety of issues from abuse and neglect, to issues getting reasonable accommodations at work school or wherever they may be. 

Jesse: And DRP is a protection and advocacy organization, right? 

Brynne Madway: Correct. 

Jesse: So that means you're federally funded to be a resource for disability rights?

Brynne Madway: We are. So as the protection and advocacy organization for Pennsylvania we receive numerous grants from the federal government and one of those is our mental health grant. And that gives us funding to provide people with advocacy services to operate our live intake line, it allows me to visit people at the state hospitals who are subject to abuse and neglect, and we can monitor and investigate cases of abuse and neglect. So we're here to make sure that folks rights are upheld and that their rights and treatment are being upheld. 

And so I encourage people to call us not just to find out about their rights, but also to report any abusive or neglectful behavior so that we can, you know, have the opportunity to investigate it.

Jesse: In Pennsylvania, what is the mental health law called? 

Brynne Madway: So the law that I'll be talking about today is appropriately named the Mental Health Procedures Act and that is the law that governs commitment at hospitals as well as voluntary treatment at hospitals, criminal commitment and Assisted Outpatient Treatment.

For those who wanna look it up on their own, it's at 50 PS, section 7101, it's available online. It's fairly well written, so I certainly encourage folks to look it up and be familiar with their rights. The other thing I'd wanna say is, of course, that there are administrative codes pertaining to mental health procedures, and they're in chapter 55 of the Pennsylvania code. So those are also important to know. 

Jesse: So mental health laws vary from state to state, but the civil commitment process often begins with some sort of detention for evaluation. So I asked Brynne, how does the detention for evaluation process work in Pennsylvania. 

Brynne Madway: So there's two ways it could begin. I think the first way is that someone could go to the hospital themselves for another medical condition, or they may want help and then decide later that they don't wanna stay. So in that case, they would be examined by a doctor, and the doctor would make an assessment about whether or not that person was a danger to themselves or others. 

There's a lengthy way that this can go, like an analysis of how that works. So it would be within the past 30 days if that person had inflicted or tried to inflict serious harm on someone else, or if there was evidence that the person would be unable to care for themselves in the community.

The other way it works in Pennsylvania is that someone, a family member or a friend, could apply for what's called a warrant. And that warrant would direct the police or emergency medical personnel to bring that person to the hospital where they would be examined by a doctor. That examination's supposed to take place in two hours, and at that point, the doctor would again make the same finding regarding whether or not the person was a danger to themselves or others and order the commitment. 

If someone was on, say, on the streets and in crisis, the police could do that without going getting a warrant as well. So there's a couple ways for folks to, I'll say, arrive at a hospital. And colloquially these are called 302 commitments, and that's because they're governed by section 302 of the mental health procedures act.

Jesse: So in Pennsylvania, essentially any member of the community can apply to have someone else detained for evaluation. If that application is approved, then police could be sent to a person's home with a warrant to detain that person and involuntarily bring them in for an evaluation. 

Jim: Well first just the use of the term warrant, I don't know if that's an unfortunate choice of term or if that's intentional, because when you think about a warrant, it's a warrant for arrest, which is not dissimilar from what's actually happening here. So there's that. 

Jesse: Yeah, so to kind of break that down. It may simply be a legal formality that the term warrant is being used, but you are absolutely right. To the person going through this process to have police show up at your home and to hear that there is a warrant for your detention, most people are not going to distinguish that from a criminal apprehension.

Jim: And I am continually disturbed by the fact that anybody can apply for one of these things. I would hope there's a high threshold for applying for a warrant and having it actually issued. But I suspect that the threshold for actually having something like that acted upon is gonna vary pretty widely.

Jesse: I think the theoretical protection for this process would be that when a person applies to have someone else detained for evaluation they are making a written claim that they believe that this other person has a mental illness and because of that mental illness there is some sort of danger. Danger to self, danger to others, or inability to care for self, one of those. And those claims are being evaluated and potentially approved by a county administrator before the warrant is issued. 

But I mean, all of those standards are very open to interpretation. 

Jim: Mm-hmm.

Jesse: But however the 302 is initiated, whether it's by police, a physician, or by an application approved by a county administrator, the person who is the target of this warrant is going to be brought to a facility for evaluation. And that evaluation is supposed to happen within two hours of arriving at that facility. 

So my next question for Brynne was, after the evaluation takes place, what happens then? 

Brynne Madway: So at that point it should be an evaluation by a doctor. I just wanna be very clear for folks because I think it's important that you, when you know your rights you know your rights and what should be happening.

The doctor should say something like, “I've determined that you meet this criteria for involuntary treatment”. And they should give that person a choice between voluntary treatment and involuntary treatment. And if they don't agree to that treatment, the doctor will issue the 302 and there's a form that they fill out and they should inform that person of their rights.

Ideally, they should be informed of their rights actually before the evaluation, so they should be able to make a call to let folks know where they are. And to let them know what the treatment’s going to be, and you should be given reasonable access to a telephone. And at that point, once the doctor issues the 302 it lasts for five days or 120 hours.

There's some overlap at this point between a voluntary commitment and an involuntary commitment. Because if at that point you agree to a voluntary commitment they would inform you that if you change your mind, they can get up to 72 hours still when you decide to leave treatment to keep you if they believe you're a danger to yourself. So there's a little overlap there. Jesse: I think for the general public, if they heard the word voluntary, they would assume it was voluntary in a more casual sense, or general sense of the word. But if you're being told you can sign yourself involuntarily or we will sign you in involuntarily. Is that really voluntary?

Brynne Madway: I think it's a euphemism in that case to a certain extent, right? I think that the law was created this way because there's a preference for voluntary treatment, and I think there are consequences, reporting consequences sometimes, that come along with an involuntary treatment. So for instance, lawyers might have a report filed with the bar.

So I think that's why this choice is presented is this preference for voluntary treatment. But I agree with you that I think we can question, if it's a euphemism at that point. 

Jesse: Is there an advantage to being voluntary versus involuntary for the person who's in the facility? 

Brynne Madway: I'm not sure that I can answer that question. I think under the law there may not be, but I think there's a variety of personal factors that would go into whether or not someone wanted to sign themselves in voluntarily or involuntarily. And I think that's a very personal decision. And I'd encourage folks to call our live intake line if they had a question or a family member had a question about which is better.

Jim: Okay, this is where I get pissed. I feel like a lot of the problems and limitations with the system come from people being overwhelmed, come from legislatures not knowing how to handle things, from this being a huge, complicated problem to deal with, with lots of different aspects to it, and no one really in a position to have command or understanding of everything to put together some kind of coherent system. This right now is, I don't know if swearing is okay… 

Jesse: It's our podcast Jim, we can swear.

Jim: This is fucking unacceptable. The idea that someone is told, or it's heavily implied, that if you do not voluntarily commit yourself that you will face these consequences is, it's not voluntary at that point. It is coerced. And I don't know what sort of implications this has for state statistics or whatever. I mean, I don't know if the commitment rates are reported, but if they are you could have some state officials say, “Well, you know, when people get picked up in X percentage of cases, they commit themselves voluntarily.”

And so that implies that people get in there and they really realize that they need help and the system's really helping them, and they recognize that and want the help. But if you're threatening to take away their rights, that is not voluntary, that is fundamentally coercive. And to call it voluntary is horrifying, and to actively punish people for advocating for themselves, which is what, if somebody says, “No, I am not gonna voluntarily commit myself.” They are advocating for themselves. And to take that away, and to threaten people with long term consequences is absolutely unacceptable. That is not the product of a bunch of overwhelmed people, you know, they're responding to a system that's already in place and they don't know what to do and they can't reform the system so they slap a bandaid on there. This is something that could be fixed with a stroke of a pen at the legislative level, and it is wildly unacceptable. And the fact that, I don't know, it pisses me off so much. 

It is not voluntary at that point, it is fundamentally coercive and needs to be different, and could be different, and it's bullshit.

Jesse: Yeah, whether it's a systemic flaw, or an intentional design, the end result is an extraordinary amount of coercion that can have traumatic impacts on the person experiencing it. I do think Brynne raises a good point though. This choice, voluntary or involuntary, can be incredibly important to the person being pushed through the system.

But the reality of these situations often results in people not feeling like a choice was actually given.

Jim: And that, I don't know, that could be solved. 

Jesse: Okay, so whether someone signs themself in voluntarily, or they are involuntarily sent to a facility by a 302, what happens next? What is the next step in that process?

Brynne Madway: So once that process begins and you've been signed in, and you're in the psychiatric unit of that community hospital, they're supposed to formulate an individual treatment plan for you. And that might include medication, it might include therapy, you know, I think the list of what it could include goes on and on. But the statute's clear that it's supposed to be an individualized treatment plan for you.

And if you're there voluntarily there's no end date, right? So you'll be there until you're ready to go home. If you're there involuntarily on a 302 it's five days, so they get 120 hours, but there's ways they can extend that process further. And if the hospital on day three starts to think five days isn't enough, we need additional time, that's what I alluded to with a 303. 

So the Mental Health Procedures Act is pretty well organized, I think, for people if they wanna understand their rights. And so 303 comes after 302, so it's the next level and it's a 20 day commitment, and that's the point at which a hearing is held. And so for that, the hospital would file a paper with the court, the pleadings, to initiate it, and the court is supposed to appoint counsel for the person in the hospital. And that counsel should contact their client and a hearing would be held, and the person would have the right to examine the doctor and introduce testimony into the record about why they should or shouldn't be in the hospital. At that point, the judge or mental health hearing officer is then supposed to write findings of fact and a conclusion to explain why this occurred. And I think that under precedent it’s a role the courts are supposed to take seriously because they recognize that this is a deprivation of people's civil liberties to force medical treatment.

And what's important to know is that after that 20 day period expires, the hospital has, if they wanna keep you, they have to continue to supply the court with evidence. So after a 303 we get to a 304, and that's gonna be 90 days. And again, there has to be a hearing held, they have to justify the need to keep you in the hospital and keep you out of the community.

After 304 there's what's called a 305, and that's 180 days. And after that, usually it'll be increasing 180 day commitments. But again, there's an attorney representing the person and there should be a hearing, finding facts that justify the need for someone not to be in the community. 

Jesse: Okay, so a 302 is up to five days, a 303 is up to 20 days, a 304 is up to 90 days, and a 305 is up to 180 days. At the initiation of each step past the 302 the person should have a right to a hearing. But even if they do request a hearing, while they wait for things to happen they're still being detained in a psychiatric facility. So my next question for Brynne was, what rights does a person have in that facility?

Brynne Madway: So, I'm glad you asked that question because people have a lot of rights and I think it's very important for folks to know these. So they're laid out very clearly in the administrative code that I was talking about. Some of the rights I wanna focus on though, because I think they're important, the first is you have the right to refuse medication.

Now if you're a danger to yourself or others, there's a way to override that, right? But it is very specific and it requires things like the doctor getting a second opinion from another doctor to make sure that medication is really needed. And so I wanna highlight that because I know that can be an issue that a lot of folks with lived experience have, and so it's important to know you have that right.

You also have the right to practice your faith, which is important. You have the right to advocacy services, whether that's through a social worker. I can say at the state hospitals, there are external advocates who the consumers can call and help file grievances, so you have the right to file a grievance about your treatment. You have the right to communicate with other people, so that usually includes the right to send and receive correspondence, it would include the right to use the telephone. Folks are supposed to have the right to receive visitors. 

You know, another important thing I think can be dietary rights, places should be respecting folks' dietary needs. If someone needs to keep a kosher diet, or a halal diet. So again, even though you're in treatment involuntarily, you still have rights. 

Jesse: I believe one of the findings that is consistent throughout the United States is that there has to be no less restrictive alternative before you can authorize the civil commitment process. Are you aware of what alternatives are evaluated in this process when determining whether or not someone needs to be held in a facility? 

Brynne Madway: I'm not, I know Pennsylvania has authorized Assisted Outpatient Treatment, and the troubling thing in Pennsylvania I'll say is, Assisted Outpatient TreatmentI think is a bit of a euphemism. Because it's still court ordered and it was traditionally used as a step down for people coming out of inpatient hospitalization. The standard was updated though in 2018, and at that point it allowed for forced treatment before hospitalization if there was clear and convincing evidence the person would benefit from it and they were unlikely to be safe in the community at the time the counties didn't implement this because of funding, and of course forced treatment isn't preferable. You know, there's a lack of funding for community based mental health services, which is creating problems in individuals accessing supports to remain well and stay in the community, and forced treatment re-traumatizes people, and then it makes them less likely to seek support.

But I think that before we get to the point where we're talking about mandated treatment there are community options. So the counties in Pennsylvania should have mental health offices. I think folks can reach out to those and look for support before there's a crisis and when they're wanting help and I think that's so important, right? Because as we were just saying, forced treatment re-traumatizes people. 

Jesse: So at this point in the process, whether it's a 302, a 303, a 304, a 305, whichever it is, this person has been detained in one or more facilities for a sustained period of time. Then at some point they are sent back into the community, but at that point they have been out of the community for a significant period of time. And that could have all started with police officers involuntarily forcing that person out of their home. So my next question for Brynne was at that point, when the person is finally released, What happens then? 

Brynne Madway: So I think that's a great question and I think it's tough, and I think at that point prior to discharge the state hospitals, or the community hospitals, should be working on plans for someone to be able to reintegrate into the community. And so that might consist of a ton of different things. I think it should be individual because these are not situations where one size fits all but I think certainly it might include helping the person to work with their county's mental health office to find treatment options.

For some folks it might be going into an LTSR, which is a long term structured residence. There's also CRRs, which are less restrictive, but still essentially group homes. I think it could include working with friends, family, and support. There's a variety of different services I think that can be set up then to help someone go back into the community, and I think it's really crucial that things be looked at holistically and individually.

Jesse: Those are pretty much all of my questions, is there anything I haven't asked about which you think is important to know about the civil commitment process or mental health rights in Pennsylvania?

Brynne Madway: I think the biggest thing, and I'll stress this, is that it's important for folks to call and ask for assistance when they need it. During this process they should have the right to use a telephone and they should call DRP’s intake line if they have questions. And I know I've said that a few times but I stress it because we're here to help and we can give folks additional information. And so for example, our number is posted by all of the phones at the state hospitals so that consumers can call us and leave a message.

And again, I think if I was going to leave parting words, it would be to know your rights and if you're worried about your rights to call and seek help during the process. 

Jesse: My last commitment was in Massachusetts, not Pennsylvania, but it began by me admitting myself to a hospital for medical concerns, severe electrolyte imbalance.

A couple of days into that a psychiatrist walks into my room and holds up two forms, a voluntary commitment and an involuntary. He then gives me an ultimatum, either I sign the voluntary or he signs the involuntary. And I will give this psychiatrist the benefit of the doubt and assume that he actually believed I needed to be inpatient, not on a medical floor where I had admitted myself, but that he believed there was some form of imminent danger and that I needed to be inpatient on his psych ward immediately.

But to approach the situation like that? To walk into a hospital room, hold up two forms, and with almost no conversation demand that I make a decision. Who does that help? 

I signed the voluntary only because I was frightened of the involuntary. 

Everyone should be given a choice, an actual choice, and now after that my choice is that I will never agree to be voluntary again.

Jim: Yeah, I'm sorry, that's awful. That you experienced it. And then it happens all the time. 

Jesse: I think the reason why I'm talking about this now is because of this basic idea of respect, of empathy. I think Brynne highlights this repeatedly that this process can bring a serious risk of trauma for the person going through it. So there needs to be every effort to try and understand that person's needs and do everything possible to treat that person with dignity. 

Jim: Just if, if this ends up getting in, I just want to just point out to any listeners that Jesse had a wide eye look of wonder in his face as he said that. And he waved both his arms over his head in, again, childlike wonder. So I just wanna paint that picture for everyone. 

Jesse: Okay, so next time, On Committable. 

Jim: Yeah. 

Jesse: We'll be looking at mental health laws in Alabama. 

Jim: Yeah!

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

S3 Episode 1: New York

JESSE: Okay to start, how about you each do your own take on the intro, the “This is Committable” thing. 

JIM: You go first Michelle, I want to see what you say cause I never know what to say to this.

MICHELLE: This is Committable. . Is this a trick question? 

JESSE: Jim, you conveniently started drinking out of that water bottle as soon as it was your turn to speak.

JIM: I had bagel in my mouth. I had to wash it away.

MICHELLE: Uh huh. 

JIM: I was pointing to Michelle. If you couldn’t  tell for Michelle to go first. 

MICHELLE: Uh huh. 

JIM: Asking Michelle to go first to say…This is Committable. 

MICHELLE: That was beautiful. Beautiful. 

JESSE: And…cue the music.

(excerpt from song Reasonable by Christopher G. Brown)

JESSE: This is Committable, a podcast about involuntary commitments. I'm Jesse Mangan and I'm here with Committable producers, Michelle Stockman and Jim McQuaid. 

MICHELLE: Hello, I'm Michelle Stockman. 

JIM: Hi, I'm Jim McQuaid. 

JESSE: For this season we're doing something a bit different. Instead of tracking the story of one person going through a system of detention and commitment, we’re broadening that view to look at the systems themselves. And to accomplish this we're going to go state by state to interview attorneys, advocates, people with lived experience, in each state, to learn more about mental health laws in that state; how they're intended to work, how they're actually implemented, what pitfalls there might be, and the things that need to change. But we've never done a format like this before, where the three producers are going over interviews together, so I thought it would be good to have us all introduce ourselves and talk a little bit about why we're doing this state by state exploration. So I'll start.

I'm Jesse Mangan, I've experienced being involuntarily detained, I've had that moment where you realize the clinician asking you about your day is really just doing a risk assessment. I've been through a voluntary commitment and an involuntary civil commitment, and those experiences were the most traumatic things I've ever experienced. And I think that trauma really could have been mitigated if I'd understood the systems I was being forced into. I don't think the risk of trauma that comes with involuntary detentions and civil commitments can ever be fully prevented, but actually being given an opportunity to understand what I was being forced into absolutely could have reduced the harm that was caused. 

So for me, going state by state to look at these laws and putting that information out there is a way to make this information accessible, and let people know what rights they're supposed to have if they're ever forced into one of these systems.

So that's me, Michelle, you wanna introduce yourself and say a little bit about what the state by state series means to you? 

MICHELLE: Yeah. I'm Michelle Stockman, I have never been committed but I am part of a family that has experienced the trauma of commitment. So I do know how an individual experience can ripple out to affect an entire community. And as someone who personally has had some lifelong struggles with mental health, that family experience made me actually very cautious in what I say and do to seek help. And I'm honestly grateful for that caution. It is really, really hard to ask for help when you are in crisis and so far, in my experience at least, the most valuable help has come from people with lived experience.

For me, that's the importance of this podcast in general, and now in going state by state, I think we're providing a platform for voices with lived experiences to help create a community of support. And part of that support is the knowledge of how to navigate some very complicated systems that may vary from state to state and despite what may be advertised otherwise, do not have the best interests of the individual in crisis in mind.

Between, for me, mental health and  being a queer woman with interest in prison abolition, I'm looking to learn how does each state handle the people it wants to remove because they don't look or act the way they want.

JESSE: Awesome. Jim…I was gonna say, do you wanna go next? But there's really no one else left, so… 

JIM: I wanna go but not next.

(laughter from Michelle and Jesse)

JIM: I'm Jim McQuaid and I have also never been committed, but I do have some personal and professional experiences that draw me to the subject. So personally, I have had struggles with mental health but thankfully I have  had experiences seeking help that have range from, you know, neutral to good. So I've been really lucky there, but I understand how random chance or a change in circumstances, most significantly a change in privilege, could have led to very, very different outcomes. 

And professionally, I'm an assistant professor of Sociology. And as a sociologist I spend a lot of time focusing on how large scale social systems operate, how they're supposed to operate, how shockingly often they fail in deeply destructive ways, and how easy it is for these institutions to make individuals feel completely powerless.

And I'm hoping that looking at different states’ mental health systems can maybe, possibly, provide some tiny glimmer of hope that there are ways to do things that can improve the systems and I am so optimistic about where we're gonna go that I am close to bursting.

JESSE: That was great, small note though, we don't do optimism on this podcast.

JIM: But it's optimism that is doomed to be crushed, is that okay? 

JESSE: Oh yeah, that we do. 

JIM: Okay.

MICHELLE: Perfect. 

JESSE: So for this episode we are going to talk about mental health laws In New York, to be more specific, we're going to talk about New York's mental hygiene law.

JIM: Uh, are we gonna listen to something then talk about it? Like what's the format? Because I have some thoughts about hygiene. 

JESSE: Yeah, go for it. 

JIM: Okay. The word hygiene historically is really wrapped up with concepts of morality, which are deeply wrapped up with concepts of social norms and what society itself has deemed is appropriate, or inappropriate.

MICHELLE: I mean, before hygiene is brought to the table, you have a group of people already who know who they want to be, right. And they know who they want to be wrong. And so now it's just a matter of, okay, well great, how do we make sure that all the right people agree on the right? Well, let's start with making sure that the wrong people seem other, seem dirty, seem disgusting, seem immoral, seem, you know, it’s definitely deeply rooted in racism, misogyny, heteronormativity.

JIM: Thank you for saying what I've been trying to say in a way that makes sense. But so using words like hygiene accidentally say the quiet part out loud. In that they are reminders that a lot of what we think of as mental illness really comes down to violations of what is socially normal and not behaviors that are actually reflective of anything wrong with someone at some kind of objective level.

JESSE: So, I don't know the history of how this law was named but yeah, mental hygiene is a really problematic term. I cringe a little every time I hear it. But for now let's shift our focus to the content of the law, what it says, how it's implemented. And to learn more about this law and how people navigate it I spoke to Carolyn Reinach Wolf. 

CAROLYN REINACH WOLF: Hi, my name is Carolyn Reinach Wolf, I'm the director of the Mental health Law Practice at Abrams Fensterman and I am also an executive partner in the firm. We're located in New York State and we consult not only in New York, but around the country on issues involving persons with serious mental illness, in support of helping families navigate through the mental health, legal system, clinical system, and so on. And thank you for having me. 

JESSE: Thank you for being here. Uh, okay, before a civil commitment process ever begins, there's usually some form of detention for evaluation. In New York State how does the detention for evaluation process work? 

CAROLYN REINACH WOLF: Well, a person can be brought into a psychiatric emergency room, a general hospital emergency room, or what's called a CPEP, which is a comprehensive part of an emergency room for an evaluation, if it's determined that they meet the legal criteria for commitment.

Then there's a whole process that goes on, a paper process, an evaluation process that goes on pursuant to Article 9 of our mental hygiene laws that have to be followed in order for a person to be either voluntary or involuntarily committed.

JESSE: In a typical scenario is someone brought into an emergency room, or a facility where that evaluation begins, are they brought in because of concerns by a physician? Are they brought in by family members? Do you have a sense of what a standard type of initiation into that process is? 

CAROLYN REINACH WOLF: It varies depending on the facts and circumstances. It can be a referral from a treating psychiatrist, it can be a referral from an outpatient mental health program, it can be somebody in the family who brings them into the emergency room. It can be a variety of people who feel, for whatever reason, based on what an individual is saying and how they're behaving, that they get brought to the er. Police can bring them to the er. There's what's called a director of community services, they can do a remand through the police or the sheriff's department to the emergency room for an evaluation. But the ER is really the gateway into a hospital psychiatric setting. 

JESSE: So in New York, as in many states, the ER becomes a sort of gateway to the process for psychiatric holds and civil commitments. And there are many ways that someone's path to the ER can be initiated, but once you reach the ER at some point you are going to be evaluated. Which leads to the next question of, is that evaluation being done by a psychiatrist? 

CAROLYN REINACH WOLF: Yes. If there is a psychiatrist on duty, which generally there is. Sometimes it's a general hospital and it'll be done by the emergency room doctor who will then call in for a consultation by a psychiatrist. But it's the psychiatrist who will make the determination as to whether the person meets what's called a legal standard pursuant to our mental hygiene law, and whether clinically they're appropriate to be committed to a hospital setting. In New York specifically, and in many other states, a person has to be what's called on a legal status pursuant to the mental hygiene law in order for them to be able to be admitted to a psychiatric unit.

So psychiatry is actually the only area of medicine that is so closely linked between the medical or clinical system and the legal system.

JESSE: If there is a physician, an ER doctor, and then a psychiatrist coming in, are both physicians required to sign something to consent to it? Or is it just the psychiatrist?

CAROLYN REINACH WOLF: It can be both, we have different sections of our mental hygiene law. So one section, section 9.13 of our mental hygiene law, is the voluntary admission. Someone comes in and says, I know I have a psychiatric issue and I wanna be cared for and treated in a hospital setting. So I'm consenting to come in as a patient.

If that person isn't consenting, then they become an involuntarily committed person. And there's a process in New York where two physicians have to certify that the person has some mental illness, poses a risk of harm to themselves and or others, care and treatment in a hospital is necessary for their safety and the safety of others. And there's actually then a third doctor who has to affirm the other two physician's evaluations. So it's a pretty comprehensive system. 

In addition, there has to be what's called an applicant who can be anyone from the director of the hospital, to a psychiatrist, to a family member, to a friend or neighbor. There's a whole list in the mental hygiene laws who say who can be this applicant on an involuntary commitment.

JESSE: Okay, so now we've gotten to the question of voluntary versus involuntary. A voluntary admission is theoretically where a person seeks help, goes to a hospital, and applies to be admitted to a psych facility as a patient. But the reality is often more complicated, and we've discussed this quite a bit in previous seasons because far too often the person being detained. signs a voluntary, but feels like they were coerced. I mean, there is heavy coercion sometimes. The person sometimes isn't even aware that they are technically on a voluntary status.

The other important thing to note about a voluntary commitment is that if you are admitted to a psych unit on a voluntary status, If you want to leave, you have to request discharge. Which triggers a process where your voluntary status can be converted to an involuntary status. Which brings us to an involuntary admission.

I looked up the language for this section of the law on the New York Office of Mental Health site and asked Committable contributor Brian Patrick Williams to read it for us. 

BRIAN PATRICK WILLIAMS: Involuntary admission on medical certification, section 9-27 of the New York Mental Hygiene Law

Standard: person has a mental illness for which care & treatment in a mental hospital is essential to his/her welfare; 

person's judgment is too impaired for him/her to understand the need for such care and treatment; 

as a result of his/her mental illness, the person poses a substantial threat of harm to self or others.

Note: "Substantial threat of harm" may encompass;

(1) the person's refusal or inability to meet his or her essential need for food, shelter, clothing or health care, or

(2) the person's history of dangerous conduct associated with noncompliance with mental health treatment programs.

JIM: So, one of the things that jumped out to me is that one of the criteria that they can use to say, Hey, this person is a danger to themselves or others, is past behavior. One of the major problems with that though is that you are putting people in a situation where one act in the past labels them in a way that doesn't allow for, you know, moving forward. Doesn't account for changes in behavior, doesn't account for the fact that what can be counted as a violent act is very dependent on the context in which someone is, for instance, picked up. 

So, for instance, the police come to pick someone up and are acting inappropriately, or if the police just decide that somebody is, you know, violent or whatever, that puts someone in a situation where they're gonna end up in this revolving door. They've been marked as violent once and therefore every time they end up in front of a judge, or in front of a doctor again in the future, oh, this person has been violent. Oh, this person has done this. Oh, this person's whatever, and then it just sticks with them. it's a mark that carries it forward.

So those labels matter. 

MICHELLE: And it also matters because depending on who you are there's an inherent belief you might be violent. So there's that kind of bias that's going on. I mean, the black community is somehow just naturally perceived by white people as violent.

JESSE: Racial disparities and bias relating to which communities are more likely to be perceived as dangerous, and which people are more likely to be forced into these systems, are really important factors that need to be considered throughout this process.

MICHELLE: Yeah.

JESSE: Okay, so at this point in the process, if two physicians have certified that a person meets the criteria for involuntary detention at a psych unit, and a psychiatrist determines that, yes, this is a legally appropriate use of involuntary detention. Then at that point, what options does a person have once they are brought into that psychiatric unit?

CAROLYN REINACH WOLF: Patients in New York, as in most other states, have rights in terms of their admission, their continued retention, possible discharge, and so on. So when the patient comes to the unit they're given what's called a notice of Status and Rights. And it outlines what their rights are under our mental hygiene laws. It also outlines for them information about their right to counsel.

And in New York, we have an agency called the Mental Hygiene Legal Service. They're employed by the state. They're provided free of charge to any and all patients on an inpatient psychiatric unit, and they get appointments for other things too. But in terms of a hospital, they are assigned to each and every hospital and each and every psychiatric unit. And they're provided to the patients on that inpatient unit. So the patient's informed they have a right to counsel, they have a right to a hearing if they wanna ask for their release from the hospital. And requesting release and requesting a hearing triggers a whole court process, paperwork process, in order to bring them before the court and for the court to hold a hearing on whether they should continue to be retained and committed, or whether they should be released. 

JESSE: At this point in the process if someone is involuntary and they ask for a hearing, they now get a chance to appear before a judge with an attorney, what happens then? 

CAROLYN REINACH WOLF: Then, and in New York these are Supreme Court level judges. Now, Supreme Court in New York is the lowest level court, it's the trial court level. It's different than other states where a Supreme Court would be the highest level, here it's the opposite. But it is a full blown Supreme Court judge and Supreme Court hearing, and/or location. The patient is what's called “put on a calendar”. They're a list of the cases that are gonna go that day or the patients who are gonna have their hearings. The patient is represented by their lawyer, and the hospital is represented by their lawyer.

Generally, the expert witness who's called to testify is the treating doctor, sometimes it's another psychiatrist on the treatment. And the hospital has the legal burden to present evidence by clear and convincing evidence, which is a pretty high standard in the law, that the person suffers from a mental illness, care and treatment in a hospital is necessary, and they pose a risk of harm. Or a danger to themselves and or others. 

JESSE: So at this point, if a person has been determined to be eligible for an involuntary commitment, they're being detained, but they have the right to request a hearing to contest that detention. If they do, then a lawyer from the mental hygiene legal service will be assigned to represent them at that hearing. My next question for Carolyn was, if at this hearing the judge finds that the person does need to be involuntarily committed for treatment, what happens next? 

CAROLYN REINACH WOLF: The judge signs an order, there's actually a court order that says the patient is to be retained for whatever the period is that goes with their commitment. And every commitment has a certain number of days where the hospital can keep them. And it's an up to number of days. So for example,  we talked about the two PC, that commitment is good for up to 60 days. Should a hospital wanna keep someone longer, they need to apply to the court under section 9 33 of the mental hygiene law. And that further commitment would be up to six months. And so on. 

So the judge signs an order that says the person will be retained for either the balance of that 60 days or another week or two. Or in the alternative, the court will order them to be released.

JESSE: For the duration between the initial hearing and then the end period of the court order, does the patient have access to an attorney at all times? Someone to speak to?

CAROLYN REINACH WOLF: Yes, they always have access to their attorney. And in fact, under our mental hygiene law, if the person doesn't prevail at the first hearing, they actually have a right under another section of the mental hygiene law to an automatic, what's called “De Novo Hearing”, or jury trial.

So a person gets retained, they're not happy and, you know, don't wanna continue to be in the hospital. They can ask for a second hearing in front of a different judge. There's a choice to either do it in front of the judge, or what's called a bench trial, or they can ask for a jury trial. And that's section 9.35 of the mental hygiene law.

JESSE: Okay, this part seemed exceptional to me. If at the hearing the judge decides that a person does need to be involuntarily committed then that person automatically becomes eligible for a De Novo Hearing. They do have to request it, I think they have 30 days to put in the paperwork for that hearing, so it's not automatic, but the person who has just been committed can request a new trial. One that possibly happens before a jury instead of a judge. 

JIM: So if I ever request a jury trial, am I committed? The entire time I'm waiting? 

JESSE: They're committed to a psych facility because at the initial hearing the judge signed that court order. So, yeah, until a court says otherwise, that person is going to be involuntarily detained.

JIM: Am I being forcibly treated?

JESSE: Possibly.

JIM: Okay. 

JESSE: So this brings us to the end of the interview with Carolyn Reinach Wolf, where I asked if there was anything else that is important to know about mental health laws in New York state. 

CAROLYN REINACH WOLF: You know, I'd like to make the point that really the hospitalization is necessary when somebody is in an acute phase of their illness. It also can be very helpful when we don't know what we're dealing with. So to get a full evaluation, a diagnosis, a recommended treatment plan. But really the most important part of the process is the discharge plan, cause patients are not gonna stay in the hospital for months really, or years, with certain exceptions, but these days it's unusual. And so the discharge plan, in order to get as many services in place, because the goal is to hopefully not have the person return to the hospital but to stay stable, gain insight into having an illness, follow the treatment plan, and so on. 

New York also has a law called Kendra's Law, also known as AOT, or Assisted Outpatient Treatment, that's very often used as part of a discharge plan. And it's a court-ordered outpatient treatment program that the individual is court ordered to follow. Now that legal standard is based on prior hospitalizations and non-compliance. Prior hospitalizations or prior incidents of violence and non-compliance.

And that carries with it a whole host of parts of a plan. You know, see your psychiatrist, go to your program, take these medications, live in a certain place, but it also is required by statute to have case management. What's called an ACT team or an ICM involved in the case so that there is someone in the community following the individual and making sure that the plan is followed. Again with the eye towards keeping people out of the hospital if they can remain stable. 

JESSE: With AOT the person can be brought back in for evaluation if they disengage from treatment, right? 

CAROLYN REINACH WOLF: Right, The team, the AOT team, and each county has an AOT team. If the team determines that they're decompensating, or they're somehow posing a risk to themselves and or others, the team can get the police and can do what's called a pickup order and bring them back to the emergency room for a 72 hour hold and evaluation.

JESSE: Is there anything different about the way that process would work as opposed to a detention for evaluation process for someone who is not on a AOT? 

CAROLYN REINACH WOLF: No, I mean, either way somebody is bringing the person, whether it's by police and ems, or it's by walking them in, or New York has a mental health warrant statutes, there can be a court remand to an emergency room for an evaluation. So there's a variety of ways how you can physically get someone into the ER. But then it becomes the emergency room's job to process that and to make a determination as to whether or not they should be voluntarily or involuntarily committed.

JESSE: Okay, this concept that it is the job of the ER to figure out whether or not the person being detained should be voluntary or involuntary. This was in season two, episode three, the idea of the hot potato. The idea of passing the liability from one institution to the next. 

You have these forces, these legally authorized forces, whether it's the family, whether it's a physician, law enforcement, or a therapist, who could have a person involuntarily detained and forced into an ER. And to say it is the ER's job to figure out whether or not this detention is appropriate sort of passes the liability from one group to the next and really diminishes the harm that could be caused on the way there. It is not inconsequential for police to show up at your home and drag you out in handcuffs to involuntarily bring you somewhere where you may be detained for, I mean, ER visits are supposed to happen quickly but you can be there for days. That's not inconsequential. 

So to pass the blame there, to put the responsibility on this other institution, on the ER to figure it out, it seems like it is disregarding the potential harm, the potential trauma, of forcing someone somewhere.

MICHELLE: We also need to confront the assumptions that everybody thinks. I mean, everyone it feels like is coming to the table these days with these assumptions when we talk about mental health of things like; risk assessment works and there's evidence to support it, depression or anxiety come from chemical imbalances, somebody having a mental health episode needs some kind of emergency intervention, someone who has a mental health issue, that's somebody who won't understand reality, can't make decisions, might be more violent, might be more likely to commit a crime.

Like,  these are all of these assumptions and these are all false narratives. 

JESSE: And this goes to the other thing that I wanted to talk about from that last clip, which is AOT. Assisted Outpatient Treatment. 

JIM: Can I ask a quick clarifying question? 

JESSE: Yeah, go ahead. 

JIM: So if we remove the other resources, what constitutes AOT? What is that? What's happening to people like, so it's outpatient treatment, right?

JESSE: Right, so, AOT is a court-ordered outpatient commitment which requires that the person adhere to a specific treatment plan. That treatment plan can dictate what medications the person is required to take, what therapist or psychiatrist the person engages with. What meeting a person has to go to. It can require drug tests. And if that person does not adhere to that court-ordered treatment then they are almost certainly going to be brought into a facility where they'll be detained for evaluation.

So effectively what this means is that it is a court order saying adhere to this treatment plan, or we could have police apprehend you and force you into a facility where you'll be evaluated for an inpatient detention which could lead to a civil commitment. 

MICHELLE: Oh wow. 

JESSE: And one of the ongoing controversies about this AOT program is the racial disparities in regards to who's being forced onto these court orders. So in 2009 there was an independent evaluation of this AOT program that found that,

“Since 1999, about 34% of AOT recipients have been African Americans who make up only 17% of the state's population. Well, 34% of the people on AOT have been whites, who make up 61% of the population.”

So hugely disproportionate representation in who is put on an AOT court order.

And part of the finding of that evaluation was that, 

“Whether this overrepresentation is discriminatory rests in part on whether AOT is generally seen as beneficial or detrimental to recipients. And whether AOT is viewed as a positive mechanism to reduce involuntary hospitalization and improve access to community treatment for an underserved population. Or as a program that merely subjects an already disadvantaged group to a further loss of civil liberties.”

JIM: That's not what discriminatory means. 

MICHELLE: Yeah, that's like model minority logic. Like no, we're saying all Asians are good. So it's not discrimination, right? So it's not a big deal cause it’s nice.

JIM: If AOT is beneficial or detrimental to recipients is a completely separate question than whether or not AOT is being imposed on different groups at different rates because of that person's belonging to one of those groups, right?

JESSE: In this evaluation there was also an attempt to answer that question of whether or not African Americans are being targeted by the people issuing these court orders and,

“We find that the overrepresentation of African Americans in the AOT program is a function of African Americans' higher likelihood of being poor, uninsured. Higher likelihood of being treated by the public mental health system rather than by private mental health professionals. And higher likelihood of having a history of psychiatric hospitalization. The underlying reasons for these differences and 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.”

JIM: if they are not taking those other factors into account then they as people who are making determinations about whether or not someone is supposed to be forced into an AOT program, then it's discriminatory. I mean, it's fundamentally racist. Like this is a textbook, textbook, example of structural racism. 

MICHELLE: Yeah. I mean, that's where the history that we ignore becomes so prevalent because, hey, let's ignore Redlining. Let's ignore all of these historical factors that led to all of this that we caused. We forcibly caused those to occur with purpose. But like, if we ignore all that and we just start at this baseline right now well then all of a sudden, it's not discrimination anymore, right? 

JESSE: And all of these incredibly problematic conclusions rest on the belief that AOT is reliably beneficial for the person who is forced onto one of these court orders. And often to demonstrate the effectiveness of AOT I've heard people citing statistics from the New York Office of Mental Health, so let's look at those stats. 

These are from the New York Office of Mental Health website, they have a section for AOT reports, and these statistics are from August 10th, 2022. 

Among AOT recipients there is a 66% reduction in psychiatric hospitalizations, a 73% reduction in incarceration, and a 63% reduction in homelessness. Which is amazing! But how did they reach these conclusions? Those stats were created by comparing a person's status, so whether they have experienced a psychiatric hospitalization, whether they have experience being incarcerated, or whether they have experience being categorized as homeless. They look at whether or not a person has experienced any of those things, at any point in their life prior to AOT as compared to their time on AOT.

MICHELLE: Interesting. 

JESSE: So, to put that into perspective, the average length of a person's time on an AOT court order is about 18 months. The average age of a person in AOT is about 38. So they're comparing the approximately 36 years prior to AOT to the approximately one and a half years that a person is on AOT.

MICHELLE: What? I don't understand. 

JIM: Well that's obviously bullshit. To say we're comparing someone's time on AOT to any other time in that person's life? Like, my brain immediately just rejects the possibility that anybody could have written that down in a report as if it is anything other than pure nonsense and idiocy.

JESSE: It seems to me that a more appropriate way to measure these types of things would be to look at someone's status at the time that they begin AOT and then compare that to someone's status at the time that they're released from AOT.  And fortunately the Office of Mental Health site has some of that data.

Okay, so this is also from August 10th, 2022. 

At the onset of AOT monitoring, so when the court ordered program starts, statewide, 6% of the people starting AOT were inpatient and 1% of the people starting AOT were incarcerated. At the time of the expiration of the AOT court order, statewide, 9% of people were inpatient and 3% were incarcerated.

So at the onset of the court order 6% inpatient, 1% incarcerated.

At the end of the AOT court order 9% inpatient, 3% incarcerated. 

So by this data there's an increase, not a reduction. 

JIM: I'm not surprised by that because you're putting people under surveillance, right? So you have a group of people who are already defined as can't survive or act independently, and you're monitoring them. So, you know, you're gonna be more likely to see things that are gonna trigger being forced to be inpatient. You're also more likely to see things that are going to lead a person to be incarcerated. 

MICHELLE: And also you're actively saying we're gonna give you access to all sorts of free resources, as long as we can control all of your behavior. We're not gonna acknowledge that maybe access to these resources in the first place could have in any way, shape, or form prevented us from getting to this spot. 

JESSE: So as we wrap up. Jim, Michelle, what are your final thoughts on how mental health laws in New York compared to mental health laws in other states? I mean, other than AOT which I find deeply problematic. But other than that, what do you think of New York's mental hygiene laws? 

MICHELLE: Final thoughts on New York are…it's actually not that bad.

JIM: Despite everything this seems like the state that has the most protections, at least on paper.

JESSE: For me I think it comes down to whether you value more steps in the process, or whether you value a higher bar for entry into that process. So is it better to have multiple physicians involved in certifying the detention? Or is it better to have a more focused definition of what requirements have to be met in order to justify forcing someone into that detention?

And I think we're going to see a lot of variations in how those two elements interact with one another as we continue to look at mental health laws state by state, but for now, we did it. We got through the first episode. 

MICHELLE: We did it!

JIM: Yay. Yay. Woo. Woo. 

MICHELLE: Exactly Jim, “Yay. Yay. Woo. Woo.”

JESSE: Let's keep up this enthusiasm because next time, on Committable, we'll be looking at mental health laws in Pennsylvania.

JIM: Wooo…

(laughter from Jesse and Michelle)

JESSE: Committable is produced by Jim McQuaid, Michelle Stockman, and me, Jesse Mangan.

With additional production help this episode by Brian Patrick Williams.

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