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.

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.

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.

Perlin on Mental Health Courts

Up on SSRN: Michael L. Perlin, 'There are No Trials Inside the Gates of Eden': Mental Health Courts, the Convention on the Rights of Persons with Disabilities, Dignity, and the Promise of Therapeutic Jurisprudence, in Coercive Care (Bernadette McSherry & Ian Freckelton, eds., forthcoming).  The abstract:

The ratification of the United Nations 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. It is most significantly changed in the area of mental disability law. Always marginalized, individuals with mental disabilities have always been “outsiders” in the world of international human rights law, with many important global human rights agencies traditionally expressing little or no interest in the plight of this cohort. Internationally, persons in forensic mental health systems generally receive, if this even seems possible, less humane services than do civil patients. Prisoners with mental disabilities are treated inhumanely in most nations, both in correctional facilities and in forensic mental health facilities.

Advocates have begun to consider whether the CRPD can potentially remediate this situation, but ratification is too recent to see much concrete change. One potential remedy lies in the expanded use of mental health courts as a means of 1) infusing therapeutic jurisprudence (TJ) into the legal process; 2) assuring that the standards of the CRPD are met; and 3) treating persons with mental disabilities with dignity in the court process. There are now multiple mental health courts in the United States, as well as others in Canada, the United Kingdom and Australia, but few in civil law nations. Advocates should seize upon the ratification of the CRPD as a launching pad for an international movement to create such courts to emulate the successes of those in common law nations that have operated with dignity using a TJ model while adhering to civil rights and civil liberties principles.

This chapter seeks to explore the intersection between international human rights and the mental health court movement. I begin here, however, with a cautionary note. Notwithstanding the potential great value that mental health courts have for persons with mental disabilities involved in the criminal justice system, it is essential that these courts do not lose their original focus as therapeutic jurisprudence-based courts, and that judges and court administrators resist the temptation to use these courts as coercive vehicles through which to simply expedite case dispositions without any meaningful attention being paid to issues of civil rights, civil liberties, dignity and autonomy. This warning underscores the importance of the responsibility on mental health court judges and administrators to consider the impact of the CRPD – and international human rights law, in general -- on the operation of these courts, especially regarding issues of potentially coercive treatment.
It is time to restructure the dialogue about mental health courts and to (1) consider whether the development of such courts will finally allow us to move away from society’s predominant opinion that mental illness reflects a defect of morality or will, (2) take seriously the potential ameliorative impact of such courts on the ultimate disposition of cases involving criminal defendants with mental disabilities, (3) assess the impact that such courts might have on the extent to which individuals are treated with dignity in the court process.
I remain a strong supporter of mental health courts but believe firmly that supporters must do a better job of responding to some of the critiques of the courts (especially those coming from what I will somewhat-awkwardly characterize as the “political left.” As I will discuss below, the critiques that, I believe, have the most merit are these: that these courts may provide “false hope” to those who come before them, and that the success of the courts is overly-dependent on the personal charisma of the presiding judge.

I believe that our “culture of blame” still infects the entire criminal justice process, and that it continues to demonize persons with mental illness for their status. Until this is remediated, there can be no assurances that mental health courts -- or any other such potentially-ameliorative alternative – will be ultimately “successful” (however we choose to define that term). 

Much of the recent debate on mental health courts has focused either on empirical studies of recidivism or on theorization. All of this discussion, while important and helpful, bypasses the critical issue that must be at the heart of the ultimate inquiry here: do such courts provide additional dignity to the criminal justice process or do they detract from the measure of dignity provided? Until we re-focus our sights on this issue, much of the discourse on this topic remains wholly irrelevant. 

My paper proceeds in this manner. In Part I, I discuss the underpinnings of therapeutic jurisprudence. In Part II, I briefly discuss some of the universal factors that contaminate mental disability law in all nations. In Part III, I look at the new Convention and its general implications for the future of mental disability law, with a special focus on the importance of dignity considerations in a Convention context. In Part IV, I first consider the role of blame in the criminal justice system, and then briefly outline the history of the development of mental health courts and consider some of the more serious criticisms of those courts. I conclude by offering some suggestions as to how therapeutic jurisprudence can best inform a MHC model that can be counted on to enforce international human rights and promote dignity.

Article on Federal-North Carolina Olmstead Negotiations

See this article in the Raleigh News and Observer.  It begins:

Thousands of frail elderly people in North Carolina live in assisted-living facilities alongside people with mental illness, who are often younger and stronger than the traditional rest-home residents. 

Federal authorities want states to separate the populations whenever possible, and have promised to withhold Medicaid money to make that happen. State officials agree that housing the two groups together is undesirable, but finding a solution has been a headache of long standing. 

The legislature’s temporary solution, laid out in budget proposals, is to set aside $10 million to provide homelike community settings for people with mental illness. As much as $39 million would allow assisted-living centers to house both populations without help from Medicaid, which pays about a third of the cost.

Might Virginia Be Risking Another Olmstead Suit?

This time on mental health?  The state's inspector general suggests so:

Virginia, already mired in a $2 billion settlement agreement with the U.S. Department of Justice, is again at risk of violating the Americans with Disabilities Act — this time for failing to release discharge-ready patients from state-run behavioral-health hospitals. 

During a six-month period of review by the state’s inspector general for behavioral health, an average of 165 people per month were clinically ready to be released from Virginia’s eight adult mental-health hospitals, but could not be discharged — most often because of a lack of community-based housing. 

During the review, about 13 percent of the system’s beds were occupied for more than 30 days by patients who had been cleared to leave. The operating capacity of the state’s eight facilities was 1,514 as of July 1.

News on North Carolina-DOJ Olmstead Settlement Negotiations

See this story from WRAL, which begins:

The North Carolina Department of Health and Human Services could end up paying millions of dollars to avoid a lawsuit over alleged violations of the Americans With Disabilities Act, state lawmakers learned Tuesday. 

State health officials briefed the Joint Legislative Oversight Committee for Health and Human Services on Tuesday about the progress of the months of negotiations with the U.S. Department of Justice. 

The issue stems from a justice department report last summer that found that the state's mental health system needlessly institutionalized thousands of mental health patients, segregating them from the community and impeding their interaction with people who do not have disabilities.

Just to be clear, the money this story is talking about is not money to be paid out as damages but instead the money that will be necessary in the short term to restructure the state's mental health system.  Over the long run, the state is likely to save a substantial amount of money by moving to a more community-based system.

Court Approves Mass. Prison Mental Health Settlement

See this article from the New York Times.  It begins:

A federal judge on Thursday approved a settlement meant to guarantee alternatives to segregation for mentally ill inmates in Massachusetts prisons.

The settlement results from a lawsuit filed in 2007 by an advocacy group. It sought to stop Massachusetts from placing mentally ill inmates with disciplinary problems in small isolation cells for up to 23 hours a day, saying that doing so violated their constitutional rights against cruel and unusual punishment as well as the Americans with Disabilities Act.

NYT on the Second Circuit's DAI Decision

Here's the article, which appeared in Saturday's paper.  The decision can be found here.

Judge Rules in Favor of Fired Employee with Bipolar Disorder

See this story by that title.

Vermont Governor Signs Bill to Retool Mental Health System

See this article by that title.

More Coverage of DOJ Intervention in New Hampshire Olmstead Suit

Listen to this segment from New Hampshire Public Radio, which contains an extensive interview with DOJ Olmstead Special Counsel Alison Barkoff.  Very enlightening.

Concord Monitor Asks NH Gubernatorial Candidates About the Ongoing Olmstead Suit

See this interesting article.