NYTimes: EDITORIAL The Mentally Ill as 'Frequent Fliers'

[titantoo]

January 15, 2005

EDITORIAL The Mentally Ill as 'Frequent Fliers'


Pressed by rising costs, the states are scrambling for ways to keep millions of people who are released from jails and prisons each year from coming back. An obvious first step would be to abolish senselessly punitive laws that make it difficult for felons to reconstruct their lives, like those in all 50 states that bar ex-convicts from occupations that have nothing at all to do with their crimes. Another prudent step would be to create high-quality programs that provide newly released people with counseling and job placement. Perhaps most crucially, those who qualify need assistance in getting back their federal disability and Medicaid benefits; inmates typically lose such benefits when they find themselves locked up for 30 days or more.

The loss of benefits is especially devastating for the mentally ill, who make up one-sixth of the prison population and who are particularly susceptible to recidivism. Most of them get psychiatric drugs and treatment for the first time in jail. They often improve quickly, but deteriorate just as fast when they are released without being re-enrolled in federal disability programs or Medicaid, which would give them access to medication and psychiatric care. Homeless, delusional and out of control, they are inevitably rearrested for behaviors related to their illnesses. Many of them come back to jail so regularly that corrections workers call them "frequent fliers."

Impoverished people who suffer from mental illnesses and other serious disabilities are entitled to Supplemental Security Income assistance, handled through the Social Security Administration. In many states, people who are declared eligible for Social Security-based benefits are automatically enrolled in Medicaid, which in turn provides mentally ill people with care and drugs.

Federal law requires that people be suspended from S.S.I. benefits when they land in jail for even a short time. The federal government diligently enforces the suspension rules - and even pays a small bounty to the prisons and jails in exchange for notice that a beneficiary has been incarcerated. But the institutions are offered no incentives to report that inmates are about to be released and need to have their benefits restored. Moreover, the rules governing the program are so vague and complicated that most prison officials don't understand them.

A similar situation has developed with Medicaid, which bars states from receiving federal matching funds for treatment given to inmates except in acute cases requiring hospitalization. The federal government envisioned an arrangement under which Medicaid benefits would be suspended during incarceration and resumed upon release. But the states have resorted to terminating inmate eligibility outright and allowing inmates, including the mentally ill, to leave custody without access to care.

The states, which are already being shortchanged by the federal government on Medicaid, got another scare recently when the Bush administrated suggested that it might shift even more of the burden. Pressed for money, the states have clearly opted to save dollars by taking inmates off Medicaid rolls and leaving them off for as long as possible.

But mentally ill inmates who are dumped onto the streets without access to care drive up incarceration costs by going back to jail again and again. The smarter approach would be to ensure that eligible inmates had disability and Medicaid benefits in hand before they left jail. Setting up the new administrative process might not be easy, but it would more than pay for itself down the line.

[mrsdragoness]

The revolving door for mentally ill inmates isn't just inmates alone. Many mentally ill people are put back on the street with virtually NO monitoring of medications or anything else. They come back on the radar after going without their meds and doing something that makes a neighbor, family member, law enforcement take notice. Then the cycle starts all over again.

and again and again and again.............

[GC]

Mandatory treatment for the mentally ill would be a good step. Nobody can force them to undergo treatment or take medication. A paranoid person who believes people are out to harm him isn't going to trust anyone. Once treatment is refused they usually wind up in prison. Take away the choice and they would be in different facilities than prison.

[titantoo]

GC

I very much doubt that is the solution. Do you have any non-anecdotal evidence to support your assertion?

[mrsdragoness]

Nobody can force them to undergo treatment or take medication.

Actually one can be forced to take medication. If a person is a danger to themselves or others, anyone can petition the court for a mental health exam. Once that exam is completed the courts can order medication and treatment. The problem lies LATER when the petition expires and the person is no longer deemed a danger, then stops taking their medication (again)

[GC]

Treatment as opposed to prison is not the answer? I wasn't commenting on the benefits only the revolving door for the mentally ill. My comments are based on a conversation with a career mental health provider discussing her battles with caring for the mentally ill. She convinced me that removing the choice to receive treatment, making it mandatory, would prevent many of these people from going to/returning to prison.

I'm open to what you have to say but treatment would seem to be the answer.

[titantoo]

The legal side rapidly gets complicated. For example

Forced Medication

The United States Supreme Court decisions of Youngberg v. Romeo, 102 S.Ct. 2452, U.S.Pa.,1982, Mills v. Rogers, 102 S.Ct. 2442 (1982)and Rennie v. Klein, 102 S.Ct. 3506 (Mem), U.S.,1982, have been widely interpreted as holding that federal constitutional safeguards involving a person's right to refuse psychiatric medications are mostly defined by state law and that federal protection was limited to whether the treatment is "a substantial departure from accepted professional judgment, practice or standards" (the "Professional Judgment" standard). It has recently been suggested that this is not what the Supreme Court actually held and that the Professional Judgment standard never was supposed to apply to forced medication cases. See, Reevaluating Substantive Due Process as a Source of Protection for Psychiatric Patients to Refuse Drugs, Indiana Law Review, 1998, 31 INLR 937. This view is perhaps lent great credence in the June, 2003, case of Sell v. United States, which while a competence to stand trial case, demonstrates much less deference to "professional judgment" than has been suggested the Supreme Court held in Youngberg.

The other prong is more trouble. Under the "professional judgment" standard, as described above, if scientifically invalid pharmacology is "accepted practice" then, it doesn't matter that it is invalid. Catch-22. For example, the very first case mentioned in the medication section of the annotated list of cases states: "Buckner v. United States, * F.Supp. * (D.D.C. 1989)(no liability for side-effects of Prolixin, since professional judgment convincingly demonstrated appropriateness of medication and consent by client)." Ultimately, however, it makes absolutely no sense that "professional judgment" prevails when the professional judgment can be shown to be fallacious. It's almost certainly not what the Supreme Court intended. This must be attacked directly but is a major effort and will take time. PsychRights has undertaken just such a case in Alaska, Myers v. Alaska Psychiatric Institute, S-11021, which is being briefed to the Alaska Supreme Court. The Opening Brief was filed on August 13, 2003 and presumably briefing will be concluded by the end of the year.

Many, if not most of the states, require the psychiatrist to accurately describe the potential dangers of the medications they are proposing. This invariably seems not to happen and is another basis for attack. And, of course, there is the psychiatric practice of lying as described below in Corruption in the Courts.

Corruption in the Courts

It turns out that psychiatrists, with the full understanding and tacit permission of the trial judges, regularly lie in court to obtain involuntary commitment and forced medication orders:

[C]ourts accept . . . testimonial dishonesty, . . . specifically where witnesses, especially expert witnesses, show a "high propensity to purposely distort their testimony in order to achieve desired ends." . . .

Experts frequently . . . and openly subvert statutory and case law criteria that impose rigorous behavioral standards as predicates for commitment . . .

This combination . . . helps define a system in which (1) dishonest testimony is often regularly (and unthinkingly) accepted; (2) statutory and case law standards are frequently subverted; and (3) insurmountable barriers are raised to insure that the allegedly "therapeutically correct" social end is met . . .. In short, the mental disability law system often deprives individuals of liberty disingenuously and upon bases that have no relationship to case law or to statutes.

The ADA and Persons with Mental Disabilities: Can Sanist Attitudes Be Undone? by Michael L. Perlin, Journal of Law and Health, 1993/1994, 8 JLHEALTH 15, 33-34.

The psychiatric profession explicitly acknowledges psychiatrists regularly lie to the courts in order to obtain forced treatment orders. E. Fuller Torrey, M.D., probably the most prominent proponent of involuntary psychiatric treatment says:

It would probably be difficult to find any American Psychiatrist working with the mentally ill who has not, at a minimum, exaggerated the dangerousness of a mentally ill person's behavior to obtain a judicial order for commitment.