TREATMENT ADVOCACY CENTER
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www.psychlaws.org
July 19, 2002
1. A GIANT VICTORY -- Wisconsin Supreme Court Unanimously Upholds Need for
Treatment Standard!
2. INVOLUNTARY COMMITMENT RULE BACKED -- Capital Times, July 12, 2002
3. MENTALLY ILL COMMITMENT RULING HIT -- Capital Times, July 12, 2002
4. THE SNAKE PIT; THE COUNTY JAIL IS ONE OF THE LARGEST PSYCHIATRIC FACILITIES
IN FLORIDA -- Miami New Times, July 11, 2002
5. TREATMENT SAVES LIVES -- San Jose Mercury News, July 11, 2002
6. NEW ON THE TAC WEBSITE
1. A GIANT VICTORY
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Wisconsin Supreme Court Unanimously Upholds Need for Treatment Standard!
On July 12, the Wisconsin Supreme Court resoundingly rebuffed a constitutional
challenge to that state's "Fifth Standard," which is among the nation's broadest
treatment placement criteria.
The unanimous Court found that those meeting the Fifth Standard are in a
condition that constitutes "dangerousness" under both the U.S. and Wisconsin
Constitutions. But the Court's definition of what is dangerous fell soundly
within the realm of what most would call "need for treatment."
As in the case, State of Wisconsin v. Dennis H., the constitutionality of the
Fifth Standard was at issue, an adverse ruling could have stricken the
progressive treatment standard from Wisconsin law.
Under the Fifth Standard that Wisconsin advocates secured in 1995, a person can
be placed in treatment if a court finds a substantial probability that "if left
untreated," he or she will "lack services necessary for his or her health or
safety and suffer severe mental, emotional or physical harm that will result in
the loss of the individual's ability to function independently in the community
or the loss of cognitive or volitional control over his or her thoughts or
actions."
Although not identical, the criteria are similar to those in the Treatment
Advocacy Center's Model Law.
While they attacked the Fifth Standard on a number of legal fronts, the central
assertion of the lawyers for Dennis H. was that the statute is unconstitutional
because it lacks a requirement of imminent dangerousness to self or others.
Consistently put forth by opponents of treatment law reform as forbidding any
commitments not based on the danger of immediate physical harm is the 1975
decision of the U.S Supreme Court case of O'Connor v. Donaldson. Predictably,
Dennis H.'s attorneys relied on this consistent but unproven argument.
And the seven members of the Wisconsin Supreme Court did not buy it, ruling that
"The fifth standard thus fits easily within the O'Connor formulation: even
absent a requirement of obvious physical harm such as self-injury or suicide, a
person may still be "dangerous to himself" if "he is helpless to avoid the
hazards of freedom either through his own efforts or with the aid of willing
family members or friends." Rather than using O'Connor to strike down the Fifth
Standard, the Court used the case to justify it.
Moreover, as you can tell from the following excerpts from the opinion, the
Court clearly looked not just at the law but also appreciated the compelling
need for earlier treatment interventions.
"Mentally ill persons who meet the fifth standard's definition are clearly
dangerous to themselves because their incapacity to make informed medication or
treatment decisions makes them more vulnerable to severely harmful deterioration
than those who are competent to make such decisions. The state has a strong
interest in providing care and treatment before that incapacity results in a
loss of ability to function."
"The fifth standard's focus is on dangerousness to self--dangerousness of a
particularly insidious nature because it is chronic and cyclical (measured by
treatment history and recent acts or omissions), and brought on by mental
illness that produces an incapacity to make medication or treatment decisions as
well as a substantial probability of an incapacity to care for oneself."
"Moreover, by requiring dangerousness to be evidenced by a person's treatment
history along with his or her recent acts or omissions, the fifth standard
focuses on those who have been in treatment before and yet remain at risk of
severe harm, i.e., those who are chronically mentally ill and drop out of
therapy or discontinue medication, giving rise to a substantial probability of a
deterioration in condition to the point of inability to function independently
or control thoughts or actions. See Darold A. Treffert, The MacArthur Coercion
Studies: A Wisconsin Perspective, 82 Marq. L. Rev. 759, 780 (1999). The statute
represents the fruition of the efforts of the Wisconsin State Medical Society
and the Alliance for the Mentally Ill [now NAMI-Wisconsin], professional
organizations which recognized a need for a law that could be applied to those
victims of mental illness who fell through the cracks under the old statutory
scheme. See id."
"The fifth standard applies to mentally ill persons whose mental illness renders
them incapable of making informed medication decisions and makes it
substantially probable that, without treatment, disability or deterioration will
result, bringing on a loss of ability to provide self-care or control thoughts
or actions. It allows the state to intervene with care and treatment before the
deterioration reaches an acute stage, thereby preventing the otherwise
substantially probable and harmful loss of ability to function independently or
loss of cognitive or volitional control. There is a rational basis for
distinguishing between a mentally ill person who retains the capacity to make an
informed decision about medication or treatment and one who lacks such capacity.
The latter is helpless, by virtue of an inability to choose medication or
treatment, to avoid the harm associated with the deteriorating condition."
Those read like passages from Treatment Advocacy Center press releases.
The Treatment Advocacy Center filed a an amicus brief in the case and our
Executive Director, Mary Zdanowicz, was given the unusual privilege for an
amicus party of presenting to the Court during oral argument.
Apparently, the Judges were listening.
Links to the opinion in State v. Dennis H as well as the amicus brief filed by
the Treatment Advocacy Center and one by TAC Board Member Kenneth Kress are at:
http://www.psychlaws.org/StateActivity/Wisconsin/StatevsDennisH.htm
2. CAPITAL TIMES (Madison, WI) July 12, 2002
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[Editor's Note: This article gives a good summary of the Dennis H. case, except
in one instance. The five elements described below are the ones in the Fifth
Standard, but the Wisconsin Supreme Court did not rule that they must be present
in order for a standard to be constitutional. Rather the Court found that taken
together these elements do form a constitutional standard, but left open the
possibility of other types of standards with different combinations of elements
being permissible.]
INVOLUNTARY COMMITMENT RULE BACKED;
JUSTICES: '5TH STANDARD' IS RATIONAL, CONSTITUTIONAL
By Matt Pommer The Capital Times
An often controversial "fifth standard" of dangerousness for involuntary civil
commitment to a mental institution is constitutional, the state Supreme Court
ruled today.
The "fifth standard," added to state law on mental illness in 1995, focuses on
an individual's dangerousness to himself or herself -- the inability to make
decisions about taking medication or treatment that could endanger the person's
health. The standard excludes those who are drug dependent or are
developmentally disabled. "There is a rational basis for distinguishing between
a mentally ill person who retains the capacity to make an informed decision
about medication or treatment and one who lacks such capacity," wrote Justice
Diane Sykes in the lead opinion.
"The state has a strong interest in providing care and treatment before that
incapacity results in a loss of ability to function," she wrote.
In a concurring opinion Chief Justice Shirley Abrahamson supported the
constitutionality of the law, but warned that it came "perilously close" to
upsetting the balance between treatment and individual liberties.
The "fifth standard" passes muster only where there is significant evidence
presented to the courts "and treatment is in fact provided," Abrahamson said.
Joining her concurring opinion were Justices William Bablitch and Ann Walsh
Bradley.
The case developed from the commitment of Dennis H., who has schizophrenia. His
father, his psychiatrist and his case manager petitioned for an involuntary
civil commitment, saying Dennis H. previously was hospitalized with acute kidney
failure and electrolyte imbalance brought on by rapid weight loss and
dehydration. They said he was exhibiting behavior that could lead again to those
conditions.
His lawyers challenged the law, saying it was vague, overbroad, and violated
constitutional guarantees of due process and equal protection.
Sykes wrote that a challenge to any law "is an uphill endeavor," saying any
legislative action is presumed constitutional.
"The state has a well-established, legitimate interest ... in providing care to
persons unable to care for themselves, and also has the authority under its
police power to protect the community from mentally ill persons determined to be
dangerous," Sykes wrote.
Wisconsin law identifies five elements that must be satisfied to allow
involuntary civil commitments, wrote Sykes, adding that it's precisely, "though
perhaps clumsily," drafted.
The five elements are that the person:
Must be mentally ill.
Must be incompetent to make medical decisions.
Show a need for care.
Probably won't get needed services.
Has a "substantial probability" to suffer harm to himself or herself that could
lead to loss of ability to function in the community.
3. CAPITAL TIMES (Madison, WI) July 13, 2002
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[Editor's Note: Our Center wasn't alone in its interest in the Dennis H. case.
Among the groups filing amicus briefs in an attempt to convince the Wisconsin
Supreme Court to nullify the Fifth Standard was the Grass Roots Empowerment
Project, whose director and attorney are quoted in the article below.
It is hard to rectify some of the across-the-board statements in this piece with
the fact that, even in state's with expanded standards like that of Wisconsin,
only a very small percentage of those with mental illness are effected. Whether
reformed or not, treatment laws only apply to the sickest of the sick. People
like Molly Cisco have nothing to worry about, unless they have a severe crisis.
Except, as she points out, if "family, friends or therapists" gang up against
her, lock her up and forced medications on her. But - then again - all those
conspirators could probably have her locked up for murder as well.]
MENTALLY ILL COMMITMENT RULING HIT
By Lynn Wohlwend, The Capital Times
A recent ruling by the state Supreme Court on a law that affects mentally ill
people has Molly Cisco feeling uneasy.
Cisco is the director of the Grass Roots Empowerment Project, a group that works
to support mentally ill people.
Cisco, who suffers from depression, says the ruling leaves her vulnerable to
involuntary confinement. She recently decided to stop taking one of her
medications because of the harsh side effects. "Family, friends or therapists at
any point could have ganged up against me and locked me up and forced
medications on me," she said.
Friday the Supreme Court ruled that the "fifth standard" of dangerousness for
involuntary civil commitment to a mental institution was constitutional after a
lawsuit challenged the standard. The plaintiff, who was identified only as
Dennis H., filed suit after he was involuntary committed by his father.
Dennis H. suffered from schizophrenia and had severe medical complications when
he did not take his medications. He appealed his yearlong commitment, arguing
that the fifth standard was unconstitutional because it lacked a requirement of
imminent danger to himself or others before commitment.
Chief Justice Shirley Abrahamson supported the law but warned that it was
"perilously close" to upsetting the balance between treatment and individual
liberties.
"For family members and friends, a loved one's refusal of timely treatment can
result in an agonizing and helpless vigil as that individual's mental, emotional
and physical condition deteriorates," Abrahamson wrote.
However, Cisco felt the opinion overlooked the rights of mentally ill patients.
"The fifth standard is probably the biggest piece of legislation to hit
Wisconsin that absolutely disregards our civil rights," Cisco said.
Mike Bachhuber, an attorney who filed a brief as a friend of the court on behalf
of Grass Roots Empowerment, said the decision was dangerous and unfortunate.
"Most folks will have a mental illness in their lives at some point," Bachhuber
said. "Now when coupled with the broad standards for the fifth standard, I think
it's very dangerous for a lot of people."
And Bachhuber agreed that the decision disregarded patients' rights.
"Mental illness is the only type of condition that someone can have where you
can have your liberty deprived," he said.
But supporters of the standard say the measure is necessary to help patients
when they can't help themselves.
"We think there are some cases where good people, who are so ill, are unable to
function," said Frank Ryan, the president of the Wisconsin National Alliance for
the Mentally Ill.
"As a parent of someone with a mental illness, this isn't coercion," Ryan said.
"This is love."
Ryan said he wanted to express support for people with mental illnesses,
but "in rare cases they might not realize they need help."
4. MIAMI NEW TIMES, July 11, 2002
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[Editor's Note: There are over a quarter of a million people with severe mental
illnesses in America's jails and prisons. This article describes some of those
in one jail. A few of the images are graphic. We wish that there were more
people like Judge Steven Leifman wearing black robes.]
THE SNAKE PIT;
THE COUNTY JAIL IS ONE OF THE LARGEST PSYCHIATRIC FACILITIES IN FLORIDA
By Mike Clary
One day last month Jesus Portelles, stripped naked and convinced that demons had
entered his body, used the broken edge of a plastic spoon to carve open his
stomach. By the time the guards could unlock his cell door and grab him, his
guts were spilling out. But the demons stayed.
That same day Luis Nunez was freed from four-point restraints -- which bound him
by the wrists and ankles, spread-eagled on a bare metal slab -- after a change
in medication helped him to stop smashing his head against the wall until he
bled. And he was better for a while. When I was there, he was on his feet and
yelling, "Where are my shoes?!" But last week he was back in full restraints.
As sick as they are, Portelles and Nunez are not in a psychiatric facility.
Where they should be. Instead they are prisoners in the Miami-Dade County Jail,
two of more than 325 men charged with felonies and even misdemeanors who are
being heavily medicated and warehoused in small, cold, overcrowded and filthy
cells in what has become the largest psychiatric facility in the state of
Florida. And some have been there for up to two years.
Portelles, who is 40 years old, and Nunez, who is 38, were being held on C-Wing
of the ninth floor, the maximum security section of the psych ward, where up to
40 inmates identified as acutely ill and extremely violent are held in 24-hour
lockdown. If deemed suicidal, the men are kept in the nude, given only a paper
gown or an indestructible nylon vest called a Ferguson garment -- too thick and
unwieldy to use as a means of hanging themselves -- for cover. They are
permitted no books, no pencil, not a stitch of clothing, nothing that could be
fashioned into a weapon or a noose. Visitors are not allowed. The inmates are
not taken out for exercise. They have no access to a telephone, nor to any
window with a view of the outside world.
At times three and four men are jammed into a four-by-eight-foot cell that has
one metal cot bolted to the wall. So some prisoners sleep on the floor. They
sleep huddled together. Or sometimes they don't sleep; they babble, they pace,
they pull out their hair, they bang their heads. Some spend the day shaking in
withdrawal from the drugs they used on the street.
In each cell the overhead neon light is always on. The single bunk has no
mattress or sheets. Food comes in Styrofoam boxes shoved through a slot in the
steel door. Offered a shower three times a week, prisoners often refuse it. When
the stench grows unbearable, guards pull uncooperative inmates out of their
cells and slosh them down with a green garden hose.
It wasn't supposed to be this way. But with state hospitals closing, and few
community-based health services available for mentally ill criminals considered
a danger to themselves and others, three floors of the fifty-year-old jail at
1321 NW 13th St. now serve as the asylum of the new millennium. Thanks to
psychotropic drugs that can sedate even the most disturbed prisoner, the jail
isn't exactly bedlam. Outbursts of screaming and wailing, bouts of
self-mutilation, and psychotic breakdowns where prisoners eat or throw their own
feces are frequent but not constant. But even on the best of days, the jail's
psych ward is a gloomy, forbidding madhouse.
To get off the elevator and walk into C-Wing is to journey backward, to take a
trip to a dark age when mental illness was called lunacy, and lunatics were kept
out of sight. The walls are painted bright blue, but there is no cheer. In the
center of the tier is a glassed-in command center, where white-shirted medical
technicians sit at computers as jacketed guards patrol the cell block, making
notations on the condition of the suicidals every fifteen minutes: "Awake,
asleep, agitated ..."
The metal doors and Plexiglas cell windows are dotted with the splatter of blood
and other fluids. The odor of disinfectant barely rises over the smell of human
despair. The stale air is cooled to just above frost, to keep the violence down.
In the cells the inmates curl in fetal balls. Or stare into space. Or at the
visitors, blankly.
"It's hell, it truly is," says forensic psychologist Merry Haber. "Medieval. If
you saw this in any other country you'd call it a human rights abuse."
Even the jail's staff admits that conditions are horrible, especially for the
one-fourth of the jail's 1750 inmates suffering from mental illness. "It's a
shocking environment: old, barbaric, archaic," sighs Joseph Poitier, the jail's
chief psychiatrist for the past eight years. "Primarily we practice triage, and
then it's management by medication. The jail environment is not conducive to
traditional treatment. We do the best we can."
How bad is it? "You wouldn't treat your dog this way," says County Judge Steven
Leifman, co-chairman of the mental health committee of Florida's 11th Judicial
Circuit. For the past two years, Leifman, who is 43 years old, has spent the
majority of his time trying to focus public attention on what he calls the
"criminalization of mental illness and the crisis on the streets."
Indeed, according to the state's Department of Children and Families (DCF),
there are three times more mentally ill people on the streets of Miami-Dade
County, per capita, than in any other major metropolitan area in the U.S. That
translates to 200,000 county residents, or nine percent of the population, who
have been diagnosed with severe and persistent mental illness, including
schizophrenia and bipolar disorder.
Why so many here? Leifman cites two reasons: Miami's warm weather, which makes
the city a transient mecca, and the legacy of Mariel, the 1980 exodus from Cuba
that included several hundred mental patients.
With only a few receiving treatment, that leaves the majority on the street for
the police to deal with. And that means many end up in jail.
Most police officers have no specialized training in how to handle the mentally
ill. And aggression, which can work in defusing situations involving most
people, often turns encounters with the mentally ill from a misdemeanor into a
felony. Or worse. In the past three years, police have shot and killed nine
mentally ill suspects.
To cut down on the number of shootings, and to keep the insane out of jail on
felony charges, Leifman promotes Crisis Intervention Training, a program run
through Jackson Memorial Hospital in which cops are taught how to respond to
suspects who may be disturbed. So far Miami and Miami Beach police have sent
selected officers through the program, and, says Leifman, results are
encouraging. Miami-Dade police have so far declined to take part, but chief
Carlos Alvarez says his officers are receiving similar training.
Leifman also wants to reform Florida's Mental Health Act -- the so-called Baker
Act -- so that courts can order outpatient treatment. Created 30 years ago, the
Baker Act permits police to take into custody those considered a danger to
themselves or others, but empowers courts to order only inpatient care.
And the judge has promoted some changes locally. Under a November 2000 agreement
signed by Miami and Miami Beach police, the county prosecutor's office, and the
DCF, mentally ill persons picked up for misdemeanor offenses are moved within 48
hours of their arrest from the county jail to one of six cooperating community
treatment centers for evaluation. From there criminal charges can often be
avoided or dropped.
But there is no such diversion program for accused felons, or for those charged
with minor offenses who are potentially dangerous.
"They are ugly, people are scared of them, and they have few advocates,"
says Leifman.
They are also expensive to care for. The county annually spends $15 million to
manage more than 600 psych patients that on an average day are held in the
county jail, the women's detention center at 1401 NW 7th Ave., and the Turner
Guilford Knight detention center at 7000 NW 41st St. That figure includes $4
million a year in overtime for corrections officers and $1 million just for
drugs.
In yet another measure of the cost of mental illness to taxpayers, Leifman
looked at the 31 misdemeanor defendants who were most often Baker Acted or who
showed up in the diversion program last year; he found they used up $540,321 in
services. That figure includes the cost of 1955 days in jail, and some $310,000
in emergency medical services. To move the mentally ill out of county jail,
local officials must have a place to send them. And for convicted and accused
felons, there are no places. The shift away from large state-run psychiatric
hospitals began with a 1950s Supreme Court decision calling for patients to be
removed from impersonal institutions and treated in smaller settings closer to
home. But Florida, like many states, failed to fund and build those community
treatment centers. Now only three state hospitals for mentally ill criminals
remain -- at Miami's South Florida Evaluation and Treatment Center, outside of
Tallahassee, and in Gainesville -- with a designated total capacity of 880
patients, including 105 women. In county jails all over Florida, there is a
backlog of forensic patients waiting to get in.
Partners in Crisis is a coalition of Florida judges, law enforcement and
corrections officers, and medical professionals that has proposed to legislators
spending $100 million to redesign the mental health delivery system. That
redesign would include creating Florida Assertive Community Treatment teams,
which under contract to DCF manage up to 100 patients struggling to rebuild
lives outside of institutions. Two such FACT teams now operate in Miami, at an
annual cost of $1 million each.
"People will get involved," says Leifman, "when mental health becomes a public
safety issue, not a social issue."
And jail psychiatrist Poitier acknowledges that "nobody wants their hard-earned
tax dollars to go towards criminals. That's the bottom line.
Nobody wants mental health facilities for chronically mentally ill in their
neighborhood. Add in the fact that they are criminals, lower socio-econ classes,
minorities -- and you don't have a population that anybody's going to advocate
for."
That leaves Poitier, who is 47 years old, to do what he can with new
antipsychotic drugs such as Risperdal, Cyprexa, and Seroquel, and Leifman to
campaign for help by inviting politicians, bureaucrats, and the news media in
for a look. Celeste Putnam, director of mental health programs for the state's
DCF, walked through the psych ward recently and almost passed out, reports the
judge.
Miami-Dade County commissioners Katy Sorenson, Barbara Carey-Shuler and Natacha
Seijas were also shaken. Sorenson compared what she saw to scenes in a 1948
movie called The Snake Pit, set in a mental institution. Carey-Shuler said she
is still having nightmares. "Horrendous, absolutely mind-boggling to know we
allow people to exist in those conditions. My heart just broke," she says. "I
don't need to see that ever again. It's indelible on my brain. But others need
to see it."
Portelles and Nunez, meanwhile, are still on C-Wing. Portelles, picked up in May
for driving without a license, is being held on a fugitive warrant from Broward
County, where he faces charges of grand theft, drug possession, and battery. He
was to be in court Friday.
Arrested in December, Nunez several weeks ago was judged competent and allowed
to plead guilty to misdemeanor assault, and sentenced to 364 days in county
jail. So he is doing his time -- in four-point restraints. But where does Nunez
go when he completes his sentence?
"Good question," says Leifman.
5. SAN JOSE MERCURY NEWS, July 11,
2002
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[Editor's Note: Last week's E-News lead off with a San Jose
Mercury News editorial endorsing the reform of California's treatment laws and,
more specifically, the state's Assembly Bill 1421.
This letter perfectly reinforces the paper's message.]
TREATMENT SAVES LIVES
THANK you for adding your voice in support of AB 1421 and Helen Thomson's
efforts on behalf of the mentally ill (Opinion, July 8). I personally know
individuals who have experienced jail, abandonment and the streets, who have
been helped through involuntary treatment and who are today enjoying the
positive effects of new medications and stability in their lives.
They would not consider involuntary treatment as having robbed them of their
dignity; rather, they are grateful that someone cared enough to fight the
archaic system for them, and get them the help they simply couldn't recognize
they needed, due to the nature of their brain disorder. Sadly, because of the
stigma associated with the term ``mentally ill,'' they won't identify
themselves. Who can blame them?
Look where we've come with cancer, AIDS, diabetes and heart disease. The brain
is no different; it's an organ that needs treatment. Treatment works. Treatment
saves lives.
Patti Mars
Mountain View
6. NEW ON THE TAC WEBSITE
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The latest edition of TAC's hard-copy quarterly newsletter is available now on
the website in PDF format at
http://www.psychlaws.org/JoinUs/Catalyst.htm#Archive. HTML versions of these
articles are coming soon.
Among other things, you can read:
