Las Vegas Sun on "Wide-Ranging Problems" in Nevada Mental Health System

See this article.  An excerpt:

In April, the story of one man, James F.C. Brown, sent packing with a one-way bus ticket from the Rawson-Neal Psychiatric Hospital in Las Vegas to Sacramento sparked outrage about Nevada’s mental health system. 

The story, first reported by the Sacramento Bee, provided a glimpse into one aspect of the state’s troubled mental health system, but subsequent investigations have revealed wide-ranging problems in a system struggling to provide even basic services for thousands of mentally ill people in Nevada.

If you read to the end of the article, you will find some basic things that the state could be doing to build up community services and provide people the supports they need without having to build new hospital beds.

California State Senate Leader Proposes to Expand Mental Health Services

See this article from the LA Times.  An excerpt:

“It’s time for action,” he told reporters at the Capitol. Steinberg proposed expanding a program providing mental health services to prison parolees with mental illness from 1,500 to 5,000 people. Those in the program have a recidivism rate of 24%, nearly a third of the rate for those not in the program. 

“While the governor appeals a federal court order to release thousands of state prison inmates, we also need to be smarter about crime by putting more resources into ensuring people who leave incarceration don’t commit new crimes and go back in,’’ Steinberg said. 

His plan also would add 2,000 crisis treatment beds in residential facilities as an alternative to the more costly treatment at emergency rooms. Steinberg also proposed deploying 200 more mental health triage workers to assist the mentally ill with treatment, housing and educational services. He would also create 25 Mobile Crisis Support Teams, funded with $500,000 grants to counties, to help people at homeless shelters, jails and climics get short-term crisis care.

Perlin on the CRPD and Guardianship

Just out: Michael L. Perlin, “Striking for the Guardians and Protectors of the Mind”: The Convention on the Rights of Persons with Mental Disabilities and the Future of Guardianship Law, 117 Penn. St. L. Rev. 1159 (2013).  The abstract:

In many nations, entry of a guardianship order becomes the “civil death” of the person affected because persons subjected to such measure are not only fully stripped of their legal capacity in all matters related to their finance and property but are also deprived of many other fundamental rights, including the right to vote, the right to consent or refuse medical treatment (including forced psychiatric treatment), freedom of association, and the right to marry and have a family. The United Nations’ ratification of the Convention on the Rights of Persons with Disabilities (CRPD) radically changes the scope of international human rights law as it applies to all persons with disabilities, and in no area is this more significant than in the mental disability law context. And there is no question that the CRPD speaks to the issue of guardianship. This article examines what impact, if any, the CRPD and other international human rights documents will have on guardianship practice around the world. This question is of great importance given the common usage of this status and the lack of procedural safeguards that attend the application of this status in many nations.

This article begins by examining why guardianship is considered “civil death” in much of the world before discussing the possible impact that the CRPD will have on the application of guardianship laws. Issues discussed include the need for some mechanism to insure the appointment of counsel to persons facing guardianship; the need for a mechanism to insure that, in those cases in which guardianship is inevitably necessary, “personal” guardians will be appointed instead of institutional ones; the need for domestic courts—in all parts of the world—to take these issues seriously when they are litigated on a case- by-case basis; and the inevitable problems that will arise in the Asia and Pacific region, where there is no regional court or commission at which litigants can seek CRPD enforcement. Finally, this article considers the impact of therapeutic jurisprudence on the questions at hand, and concludes by looking again at the CRPD as a potentially emancipatory means of restructuring guardianship law around the world.

  

Report of Nevada State Mental Hospital Putting Residents on Greyhound Buses and Sending Them to Other States Without Services

I had missed this story -- appalling if true.  It begins:

A Nevada state mental hospital's practice of discharging psychiatric patients to Greyhound buses and transporting them to cities and towns across the country is under investigation by the independent, nonprofit body that accredits hospitals nationwide. 

In addition, city attorneys in San Francisco and Los Angeles are exploring whether the practice constitutes a form of cross-state "patient dumping," and might be grounds for legal action against Rawson-Neal Psychiatric Hospital and Nevada health authorities. 

The responses follow a report in Sunday's Sacramento Bee that revealed that Rawson-Neal, Nevada's primary psychiatric hospital, has bused more than 1,500 mentally ill patients out of southern Nevada in the last five years, sending at least one person to every state in the continental United States. About one-third of those patients were shipped to California, including more than 200 to Los Angeles County, 36 to San Francisco and 19 to the city of Sacramento, according to a review of Greyhound bus receipts purchased since July 2008 by Nevada's mental health division.

Read the whole thing. Ugh.

Johnston on Sentencing and Mental Illness

Up on SSRN: E. Lea Johnston, Vulnerability and Just Desert: A Theory of Sentencing and Mental Illness, 103 J. Crim. L. & Criminology 147 (2013).  The abstract:

This Article analyzes risks of serious harms posed to prisoners with major mental disorders and investigates their import for sentencing under a just deserts analysis. Drawing upon social science research, the Article first establishes that offenders with serious mental illnesses are more likely than non-ill offenders to suffer physical and sexual assaults, endure housing in solitary confinement, and experience psychological deterioration during their carceral terms. The Article then explores the significance of this differential impact for sentencing within a retributive framework. It first suggests a particular expressive understanding of punishment, capacious enough to encompass foreseeable, substantial risks of serious harm proximately caused by the state during confinement and addresses in particular the troublesome issue of prison violence. It then turns to just desert theory and principles of ordinal and cardinal proportionality to identify three ways in which vulnerability to serious harm may factor into sentencing. In so doing, the Article advances the current debate about the relevance of individual suffering to retributivism and lays the theoretical groundwork for the consideration of vulnerability due to mental illness as a morally relevant element in sentencing decisions.

Pew's Stateline on Mental Health Funding and Medicaid Expansion

See this interesting article, which begins:

The recent mass killings in Tucson, Aurora and Newtown have sparked public conversations about the deficiencies in state-run mental health systems across the United States. But few states are poised to spend their own money to reverse as much as a decade of budget cutbacks in those areas. 

Instead, many of them are counting on an infusion of federal mental-health dollars. Because Medicaid includes mental-health benefits, those states that opt into the Medicaid expansion included in President Obama’s Affordable Care Act will be able to make mental health coverage available to thousands of their citizens who do not now have it. 

For the first three years that additional coverage would cost the states nothing: Under terms of the Affordable Care Act, the federal government will cover 100 percent of the costs of new Medicaid enrollees for the first three years and 90 percent after 2020.

So far, 20 governors, some of them Republicans who opposed the health care law, have committed their states to the Medicaid expansion. Ten Republican governors have announced they will not participate. If all states opted into the expansion, an estimated 13 million more Americans would receive mental health benefits through Medicaid next year, according to a report by the Congressional Budget Office. The number would rise to 17 million in 2022.

Bazelon Center Analysis of Psychiatric Hospital Bed Availability and Gun Homicides

See this press release, with attached report:

Over the past several years, homicides involving the use of firearms — notably, mass murders that generate significant media attention — have raised questions about the adequacy of mental health services in this country. Some have argued that the disability rights movement, deinstitutionalization, and the closure of state hospital beds have significantly contributed to many of the tragic gun-related murders across the country. Such arguments tend to overlook the impact of the nation’s failure to fund the comprehensive community mental health systems that were intended to replace outmoded state institutions. Nevertheless, arguments to expand the availability of psychiatric hospital beds have ready appeal, particularly in the wake of tragic mass homicides; increasing the number of psychiatric hospital beds appears to be a straightforward response. 

A new analysis conducted by the Bazelon Center for Mental Health Law examines the relationships between states’ rates of murder by firearms, incarceration, and the availability of psychiatric hospital beds. If expanding the number of psychiatric beds is a meaningful remedy to firearm related murders in this country, one would expect a clear association between these factors, showing that states with fewer psychiatric hospital beds have higher rates of firearm-related homicides or incarceration. 

The Bazelon Center’s analysis found, however, that correlations among these factors are strikingly low. The analysis suggests that, to the extent that unaddressed needs of people with serious mental illness contribute to the nation’s homicide rate, the public policy answers lie not in increasing the number of psychiatric hospital beds, but elsewhere.

Franken, Harkin Urge Administration to Issue Final Mental Health Parity Rule as Response to Gun Violence

You can see the letter sent by Senators Franken and Harkin to the Vice President here.

NYT on Hurricane Sandy and the Mental Health Crisis System

Good piece in today's Times on the disruptive effects of Hurricane Sandy on the mental health crisis system in New York City.  Excerpts:

Psychiatric hospital admission is always a judgment call. But in the city, according to hospital records and interviews with psychiatrists and veteran advocates of community care, the odds of securing mental health treatment in a crisis have worsened significantly since the hurricane. The storm’s surge knocked out several of the city’s largest psychiatric hospitals, disrupted outpatient services and flooded scores of coastal nursing homes and “adult homes” where many mentally ill people had found housing of last resort. 

* * * 

The storm battered a mental health system that still relies heavily on private nursing homes and substandard adult homes to house people with mental illness. Such institutions have a sordid history of neglect and exploitation, and the courts have repeatedly found that their overuse by the state isolated thousands of people in violation of the Americans With Disabilities Act. 

Plans are under way to increase supportive housing — dwellings where mentally ill people can live relatively independently, with support services. But even before Hurricane Sandy, the expansion fell far short of demand.

Guest Prawfs Post on the Insanity Defense and Disability Rights

I'm guesting again at Prawfsblawg this month, though I'll continue to post here as well.  This is my first post of the month, on disability rights and the insanity defense.  Enjoy!

A Response to the Free Press on Deinstitutionalization

I seem to have done a number of long, discursive posts lately.  Here's another.

My local big-city paper, the Detroit Free Press, has done a great series of articles over the past several months regarding the lack of services for people with mental illness in Michigan.  The series is a good example of what quality, in-depth journalism can be.  But in an editorial last Sunday, the paper took a wrong turn.  Among some other proposals that are quite valuable, that editorial argues that the state should “put a moratorium on closing psychiatric beds” and “should seriously consider adding some” at the state’s psychiatric hospitals. 

That argument reflects the view that deinstitutionalization was the cause of the problems in the mental health system, and that stopping or reversing deinstitutionalization will help solve those problems.  That view is widely held.  But it is wrong.  In my recent Cardozo Law Review article, I showed that where deinstitutionalization has not fully achieved its goals, that is not because psychiatric hospitals are a particularly good setting for serving people with mental illness.  Rather, it is because states have too often seen deinstitutionalization as largely an opportunity to save money.  They have closed institutions, but they have not sufficiently invested in the services and supports that enable people with mental illness to flourish in their homes and communities.

As the Free Press's own reporting shows, Michigan has replicated this pattern.  An article on September 16 observed that despite the heavy burden that deinstitutionalization placed on community mental health services, the money for those services “never materialized.  In fact, mental health spending failed to keep pace even with inflation.”

To respond to the failure to fund community-based services by choosing reinstitutionalization could make sense only if people with mental illness were better served in psychiatric hospitals than in their homes and communities.  But we know that the opposite is true.  Over the past four decades, a robust evidence base has demonstrated that people with mental illness are more likely to thrive when they receive appropriate services and supports in the community than when they are institutionalized.  The federal Substance Abuse and Mental Health Services Administration has concluded that independence and participation in society, as well as community relationships and social networks, are essential to mental health recovery.

The evidence has also identified the services and supports that people with mental illness need to thrive in the community.  These include: supportive housing, which provides stable and permanent housing to people with mental illness in their own apartments, with services coming to them as needed; intensive and coordinated clinical services, such as those provided by multimember, multidisciplinary Assertive Community Treatment teams; and community-based crisis services, which respond to mental health crises, defuse them, and address their causes without triggering prolonged institutionalization.  All of these services exist in Michigan, and many people with mental illness in the state are flourishing outside of psychiatric hospitals because of them.  But the state has failed to make sufficient investments in these community-based services.  The Free Press's reporting has shown us the results.

More than anything else, it is the state’s failure to provide appropriate community-based housing that has led to the problems of homelessness and incarceration that the Free Press's reporting identified.  In its most recent “Grading the States” report, for example, the National Association for Mental Illness rated Michigan below average in providing housing for people with mental illness. 

The solution to this problem is not to reinstitutionalize people with mental illness.  Reinstitutionalization is more costly, and less effective, than providing services in the community.  And it will likely violate the ADA, as interpreted by the Supreme Court in the Olmstead decision.  The U.S. Department of Justice has been aggressively enforcing the Olmstead community-integration mandate in recent years.  (As all three of my readers know, I played some role in this effort before I left my DOJ appointment and returned to my teaching job a year and a half ago.)  Reinstitutionalizing people with mental illness could tie up the state in lengthy and expensive investigations and, potentially, litigation with the DOJ and private advocacy groups.

Michigan should not go down that path.  Instead, it should—finally—make sufficient investments in integrated supported housing and other community-based services so that Michiganders with mental illness do not have to live on the streets or in a jail or prison.

Final Version of My Deinstitutionalization Article

You can access the final, published version of my piece, The Past and Future of Deinstitutionalization Litigation, 34 Cardozo L. Rev. 1 (2012), here.

Nice NYT Piece on the Results of the DOJ-Georgia Olmstead Settlement

Read the article here.

Huffington Post on Mental Health Budget Cuts

See this article, which begins:

As states have struggled to balance their budgets, they've often eyed public mental health programs for cuts. But those cuts have hit a particularly vulnerable population: low-income people with often severe mental health disorders or addiction issues. 

Experts and mental health advocates say the reductions have led to longer waiting lists for care, less money to help these people get housing and jobs, and more people visiting emergency rooms for psychiatric care. 

Chris Wysocki has seen this crisis firsthand. As administrator of Juniata Valley Behavioral and Developmental Services, he oversees mental health services for three largely rural counties in central Pennsylvania. According to the Pennsylvania Department of Public Welfare, the state allocated $662 million for its mental health programs in fiscal year 2012, down from around $717 million in 2011. It's Wysocki's job to deal with these cuts while trying to minimize the impact on people in his community.

Globe and Mail on Canadian Study of Housing First

See this article.  An excerpt:

The study’s preliminary findings, to be released Friday by the Mental Health Commission of Canada, show the potential value of an approach known as “housing first.” 

The idea is that a safe and comfortable place to live is an essential first step to coping with mental illness, and that giving people the support they need in their communities will reduce the burden on shelters, hospitals and the criminal justice system. 

The research project looked at how participants like Ms. Day fared compared with others in a control group, who were treated in the more conventional way – in systems that rely on shelters and temporary housing and require homeless people to meet a number of conditions, like getting treatment for addictions, before becoming eligible for help with an apartment. 

The housing-first approach does not expect people to prove they are ready for a home of their own. It offers them choices of where they would like to live, usually apartments rented from private-sector landlords, and then helps them deal with their problems.

Cannon on Community-Based Mental Health Treatment for Children

Just out: Yael Zakai Cannon, There's No Place Like Home: Realizing the Vision of Community-Based Mental Health Treatment for Children, 61 DePaul L. Rev. 1049 (2012).  From the introduction:

There are a number of federal legal regimes explicitly structured to ensure that children like Mary are provided with timely community-based mental health treatment. This Article argues that local and state public agencies often fail to comply with their duties and fulfill the aims of these federal regimes, leading to unnecessary institutionalization of youth. Mary's placement in a residential treatment facility reflects a failure of the multiple systems in which she was involved to achieve the goals of related federal legal regimes. Like Mary, a child living in poverty may be entangled in the child welfare and juvenile justice systems and may have unmet special education and health care needs. Rather than coordinating to address a child's needs holistically, these systems typically operate as though they are in silos. For example, officials from the child welfare agency responsible for a child's foster care placement might never communicate with the school officials responsible for the child's special education needs. This can lead to failure and crisis in both the foster home and the school, resulting in the child's placement in a more restrictive institutional setting. 

Just as public agencies often operate in silos, the examination of problems affecting low-income youth also typically occurs through singular, myopic lenses. Scholars often engage in an individual assessment of challenges related to one system, such as the child welfare system or the juvenile justice system.  In addition, courts usually segregate hearings related to children, with family court judges handling an “abuse/neglect docket” and handling a “juvenile delinquency docket” in different family court hearings and different administrative hearing officers handling special education and Medicaid-related claims in other fora. Moreover, attorneys are appointed by courts or offer themselves for hire for a particular category of matters and typically remain in their own silos.  This Article expands the analysis of the legal systems affecting at-risk youth by looking at them holistically, analyzing their intersections, and evaluating the harmful effects of the compartmentalization. As a result of this compartmentalization and other factors, the common goals of federal legal regimes related to child welfare, special education, health care, juvenile justice, and disability rights continue to go unrealized, resulting in the denial to children of much-needed treatment and educational services and their subsequent placement in restrictive settings. 

Part II examines the over-institutionalization of children in harmful and costly residential treatment centers (RTCs), a largely invisible problem about which policymakers, judges, attorneys, and taxpayers should all be concerned.  Part III reviews the various legal regimes structured to ensure that children with mental health needs receive community-based services and remain out of these institutions.  Through their statutes, regulations, case law, and policies, federal legal regimes related to child welfare, special education, health care, juvenile justice, and disability rights share these common aims, which remain unrealized. Part IV assesses the reasons for the disjunction between the shared goals of these legal regimes and the reality that many children living in poverty are unnecessarily institutionalized due to their inability to access community-based services.  The stigma surrounding mental illness, compartmentalization among child-serving public agencies, and the scarcity of providers contribute collectively to this disjunction, with devastating consequences. 

In Part V, the Article concludes by calling for the fulfillment of the goals of these legal regimes through the implementation of principles and best practices in the field of children's mental health identified by researchers in other disciplines, such as psychiatry, psychology, social work, and health policy.  Public agencies should adopt and make operational the “system of care” philosophy, an approach to children's mental health developed by the National Institute of Mental Health that emphasizes coordination among various child-serving public agencies.  Local and state agencies should also ensure the provision of specific mental health services proven to be effective through valid and robust scientific studies, known as “evidence-based practices,” to keep children at home and in their communities.

DOJ Reaches Major Olmstead Agreement with North Carolina

See this press release, which outlines the basic contours of the settlement.  It begins:

The Justice Department announced today that it has entered into an agreement with the state of North Carolina to ensure the state is in compliance with the Americans with Disabilities Act (ADA) and the Rehabilitation Act. The agreement will transform the state’s system for serving people with mental illness. Under the settlement agreement, over the next eight years, North Carolina’s system will expand community-based services and supported housing that promote inclusion and independence and enable people with mental illness to participate fully in community life.

Under the ADA, as interpreted by the Supreme Court’s landmark decision in Olmstead v. L.C., people with disabilities have the right to receive services in the most integrated settings appropriate to their needs. The settlement follows an investigation by the Department of North Carolina’s mental health service system that began in 2010. Since the department’s letter of findings was issued one year ago, in July 2011, the state has worked cooperatively with the department to negotiate an agreement..

“As the Supreme Court noted over a decade ago, the unnecessary segregation of people with disabilities is based on the unsupported assumption that they are unworthy of participating in community life,” said Thomas E. Perez, Assistant Attorney General for the Civil Rights Division. “This agreement will enable North Carolinians with mental illness to live in community-based settings, enriching their lives and the lives of their neighbors, and recognizing their worth and dignity. I commend Governor Bev Perdue and North Carolina’s Department of Health and Human Services Secretary Al Delia for their leadership, which played a crucial role in making this comprehensive agreement a reality.”

Over the next eight years, North Carolina will provide integrated supported housing to 3,000 people, expand Assertive Community Treatment teams to serve 5,000 individuals, and provide a range of crisis services. The agreement will also expand integrated employment opportunities for people with mental illness by providing supported employment services to 2,500 individuals. These services will allow the state to serve people with mental illness effectively in their communities while avoiding costly institutional settings.

The settlement is here.  DOJ issued its findings letter in this case in my last week at the Department in 2011; congratulations to my former colleagues for bringing home such a big settlement.

Duhl on Price on Mental Disability in Academic Life

New on SSRN: Gregory M. Duhl, Over the Borderline — A Review of Margaret Price’s Mad at School: Rhetorics of Mental Disability in Academic Life.  The abstract:

This essay is about “madness” in higher education. In Mad at School: Rhetorics of Mental Disability in Academic Life, Professor Price analyzes the rhetoric and discourse surrounding mental disabilities in academia. In this essay, I place Price’s work in a legal context, suggesting why the Americans with Disabilities Act fails those with mental illness and why reform is needed to protect them. My own narrative as a law professor with Borderline Personality Disorder frames my critique. Narratives of mental illness are important because they help connect those who are often stigmatized and isolated due to mental illness and provide a framework for them to overcome barriers limiting their equal participation in academic life.

California Supreme Court Decides Interesting Civil Commitment Case

Last week, the California Supreme Court issued a decision in People v. Barrett.  The case involved the civil commitment of a woman with an intellectual disability on the basis of dangerousness.  California law provides for the civil commitment, on dangerousness grounds, of people who are either "mentally ill" or "mentally retarded."  Both classes of individual are entitled to trial by jury in their commitment proceedings, but only individuals who are subject to commitment for being "mentally ill" are entitled, under state law, to be personally advised of the jury-trial right.  Barrett, who was committed after her counsel waived her right to jury trial without her being personally advised of that right, argued that the distinction California statutes draw between "mentally ill" and "mentally retarded" individuals violated equal protection under both the state and federal constitutions.

The court rejected that argument.  It found a rational basis for distinguishing between "mentally ill" and "mentally retarded" individuals in deciding whether to personally advise them of their jury trial right.  The court concluded that a finding of dangerous "mental illness" does "not necessarily imply incompetence or a reduced ability to understand, and make decisions about, the conduct of the proceedings," but that a finding of dangerous "mental retardation" in fact "raises substantial doubts about ["mentally retarded" individuals'] cognitive and intellectual functioning sufficient to limit the personal and procedural role they play."  Justice Werdegar and Justice Liu filed separate concurrences in the judgment.  They argued that the distinction the state statutes drew (and the court accepted) was based on irrational prejudice) and accordingly violated the state constitutional prohibition against denials of equal protection.

Both Justice Werdegar and Justice Liu said they would follow, for these purposes, the U.S. Supreme Court's analysis in City of Cleburne v. Cleburne Living Center, which held that a Texas city denied equal protection when it refused to grant a special use permit to a group home to be occupied by people with developmental disabilities.  Justice Liu noted that, after Cleburne, the Court had upheld the distinctions Kentucky drew between intellectual and psychiatric disabilities in its civil commitment process.  The case was Heller v. Doe.  But Justice Liu argued that Heller lacked persuasive force in interpreting the California constitution, because that case "did not apply Cleburne's analysis yet made no effort to distinguish it."  And, he argued, it was not clear that Heller, which did not involve the jury trial right, dictated a result here in any event.

Although they said the distinction California law drew violated the state constitution, Justices Werdegar and Liu joined the court's judgment because they found the error harmless under the analysis the court uses for violations of state law.

Concannon on Mental Disability and the ADAAA

Just out: James Concannon, Mind Matters: Mental Disability and the History and Future of the Americans with Disabilities Act, 36 Law & Psychol. Rev. 89 (2012).  The abstract:

This Article examines the history of protections afforded individuals alleging mental disabilities under the Americans with Disabilities Act of 1990, and the protections such individuals will receive under the ADA going forward in light of the ADA Amendments Act of 2008, which substantially amended the ADA. The Article specifically focuses on Title I of the ADA, which governs discrimination in employment against individuals with disabilities. While the Article concludes that it is reasonable to suspect that coverage for potential Title I ADA plaintiffs alleging mental disabilities will be broader post-Amendments Act, it also finds that it is unclear whether individuals with such disabilities will experience the same increase in coverage as those alleging physical disabilities will likely enjoy. This potential divergence stems from the lack of amendment of particular provisions of the Act that have disproportionately disqualified individuals with mental impairments from coverage, and from the continuing stigma attached to mental disabilities.