Analysis and Strategies
Part Two of the From Hospital Beds and Back Wards to Prison Cells and Solitary Confinement series
The Need for Treatment bill revises the commitment laws and addresses problems throughout the expanded de facto mental health system. It provides support for a cost-effective, coordinated, humane and clinically appropriate system of mental health and related services.
Voluntary and Involuntary Treatment for Mental Illness
Because of advances in knowledge and practice within psychiatry and related disciplines, treatment can eliminate or significantly alleviate the symptoms and distress of mental illness. Proper treatment and related rehabilitation and social services, with demonstrated effectiveness, can promote recovery, maximize self-determination, and enable persons who have a mental illness to function and enjoy all areas of their lives to their fullest capacity. Treatment can also reduce the risk of harm to persons who have a mental illness and others. Despite limitations on funding, many states have enacted laws to try to achieve these ends.
The consequences of untreated mental illness or delays in providing treatment are numerous and devastating to individuals, families and society. They include exacerbation of illness, permanently decreased medication responses, unnecessary hospitalization, and increased frequency and lengths of hospital stays. Untreated mental illness often leads to the disruption of families and therapeutic placements, homelessness, criminalization, incarceration and the repetitive cycling of persons who have a mental illness among hospitals, correctional facilities, and the street.
Without needed treatment, people who have a mental illness face the dangers and costs of untreated physical illness, the despair of their families, and the stresses of poverty. They also experience untold unnecessary suffering and are vulnerable to violence, exploitation, suicide, and premature death. Families suffer along with their loved ones, when proper treatment is not available.
The consequences to society, when people cannot obtain needed mental health treatment, include the ineffective expenditure of public funds, the compromise of public safety, diminished productivity in the labor force, and the moral costs of condoning the abuse and neglect of vulnerable ill people in our communities.
Available, high quality voluntary treatment encourages the timely and effective utilization of treatment resources. Most forms of treatment are also more likely to be effective if there is cooperation and compliance on the part of patients, their families and significant others.
For many people with mental illness, medication is an essential component of treatment, enabling them to participate in complementary treatment modalities and rehabilitation services. But some with mental illness resist taking medication for a variety of reasons, including:
- negative experiences with the mental health system
- bad experiences with prescribing doctors who have not listened to them or worked with them to find effective medications
- lack of benefit from the medications which have been prescribed for them, and/or
- unwanted and unpleasant side effects.
Other persons with mental illness are unable to provide informed, voluntary consent to medication or other treatment.
Under our current mental health laws, persons who refuse or are unable to consent to treatment can only be treated in a hospital.
When such persons are at high risk of being dangerous or unable to safely care for themselves — due to their mental illness — state law does provide for involuntary inpatient treatment through civil commitment procedures.
When such persons are at risk of becoming dangerous or unable to safely care for themselves because of their mental illness — but could be safely maintained in the community with proper treatment and supervision — the state should provide such treatment and supervision, authorized by a law which permits involuntary treatment in the community.
The Need for Treatment bill provides legal authorization for involuntary community treatment.
Because civil commitment and involuntary community treatment entail deprivations of liberty and personal autonomy, it is legally and morally essential that state law provide high quality treatment, clear standards, procedural safeguards, and independent legal and advocacy services, to ensure that these restrictions are justified.
The Need for Treatment bill requires high quality treatment be provided for all persons with mental illness in need of treatment. It authorizes involuntary treatment only pursuant to clear standards and careful procedures, in the context of multiple protective, empowerment, advocacy and review measures.
Many persons who have a mental illness receive treatment from multiple providers during the course of their illness. These may include mental health providers and others who offer related educational, health, income maintenance, legal, vocational, case management and other rehabilitation services. Coordination and continuity of services are necessary for effective treatment and rehabilitation. Therefore, it is essential that treatment providers be authorized to communicate with each other in the interests of their shared clients.
The Need for Treatment bill authorizes communications which support continuity of treatment and coordination of all treatment modalities and services.
Correctional facilities, which are designed or operated to contain and punish offenders, are dangerous environments. These facilities foster counter-therapeutic cultures, which can cause incalculable harm to prisoners who have a mental illness, and can defeat all efforts to provide effective treatment and rehabilitation. Strategies to divert persons with mental illness from correctional facilities — and return such persons who meet hospitalization standards to the mental health system — benefit both prisoners and correctional facilities.
The Need for Treatment bill provides multiple strategies for the appropriate diversion of persons with mental illness from the criminal justice to the mental health system.
The Impact of the Dangerousness Requirement for Involuntary Hospitalization
Many people with untreated mental illness become unwilling or unable to accept voluntary treatment, even when their need for treatment is apparent to those around them and threatens not only their health, but also their safety and the safety of others. However — under our current laws — involuntary treatment is only available in hospitals, and involuntary hospitalization is only permitted when a person’s mental illness causes the person to become imminently dangerous.
Predictions of dangerousness have long been recognized as insufficiently precise, except perhaps in a narrow range of circumstances. Therefore, it is predictable that some people who resist treatment for their mental illness will not be hospitalized before they commit dangerous acts and, consequently, will be arrested and incarcerated. Other people, whose judgment is impaired by untreated mental illness, are arrested for non-dangerous offenses. We see the results in the growing population of prisoners identified as suffering from a serious mental illness, and increased harm to people with mental illness, as well as third parties.
At the present time, the quantitative movement of severely ill persons from hospitals to jails and prisons has so transformed the terrain, that New Jersey (like much of the country) now houses more persons with serious mental illness in its correctional facilities than in its psychiatric hospitals.
This single development cries out for a clear assumption of responsibility for those persons lost to the traditional mental health system. The laws governing the power and responsibility of the state for persons with mental illness must acknowledge and address this new reality.
The Need for Treatment bill recognizes and responds to these realities by addressing early clinical intervention, diversion and the needs of prisoners for proper treatment and release planning.
JEAN ROSS is a volunteer prisoners’ rights attorney based in Princeton, New Jersey. She has spent most of her expansive career working with and on behalf of people confined in the only two public institutions that have the legal authority to confine people involuntarily — prisons and psychiatric hospitals. Before retiring, Jean was a public defender within Division of Mental Health and Guardianship Advocacy where she provided pro bono representation to psychiatric hospital patients. Since ‘retiring’, Jean has been a tireless advocate, activist, organizer, and leader on behalf of prisoners and their loved ones. She is “one of New Jersey’s most stalwart warriors against prisoner abuse.” She is a Board Member for the Center for Action Research and Director of the Prison Initiative Project.
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