Changing Focus: The Right to

Treatment of Serious Mental Illness

Elinore F. McCance-Katz, MD, PhD

Assistant Secretary for Mental Health and Substance Use
Substance Abuse and Mental Health Services Administration
U.S. Department of Health and Human Services

Saks Institute for Mental

Health Law, Policy and
Ethics
April 16, 2018
Outline

• Serious Mental Illness: disabling aspects

• Brief overview of the history of involuntary
treatment in the United States
• Standards and unintended consequences
• Justice involvement
• Assisted outpatient treatment: a potential
resource
• Resources that should continue to expand
• Questions we must continue to address
 Serious Mental Illness: Disabling Aspects
• Psychotic Disorders: Schizophrenia, schizoaffective disorder,
bipolar disorder
• Hallucinations/delusions/paranoid thinking
• Problems interpreting the environment/reality testing
• Cognitive impairment:
• Poor ability to make decisions or to understand information
• Difficulty focusing or paying attention
• Anosognosia
• Symptoms or combinations of symptoms can be disabling with
inability to care for oneself, rejection of acceptance of illness and
refusal of care, and, in some cases, dangerousness
 Consequences of Untreated Serious Mental Illness

• Over 11 million with serious mental illness; numbers with

suicidality/homicidality/grave disability are relatively small but important
• 140,000 SMI homeless (250K with AMI are homeless) (HUD, 2015)

• 392,000 SMI incarcerated (265,455 SMI in prisons, 125,582 SMI in jails)

(26,000 are for murder) (Glaze and Parks, 2012)

• 755,360 SMI on probation or parole (2,360,500 AMI on probation/parole)

(Teplin et al., 2005)

• 25% of SMI (3 million) were victims of a violent crime in past year, 11X
higher than the general population (Desmarais, et al., 2014)
• Lifetime risk of suicide: schizophrenia 5%; bipolar disorder 10-15%
(K Hor and M Taylor, 2010)

• Lack of attention for physical health problems contribute to early death; on

average 10 years earlier than the general population
History of Commitment for Mental Disorders
• State has interest in protecting the vulnerable:
 Parens patriae: responsibility of government to intervene
on behalf of citizens who cannot act in their own best
interest
 Police power: Right to act on behalf of safety of all citizens
including writing statutes to benefit society at large which
may restrict individual rights
 Physicians or other healthcare professionals often make
that assessment in the case of mental illness
History
• U.S. History (1817-1824: First 4 asylums built in Northeast):
institutionalization required only presence of a mental illness
with a recommendation of need for treatment; resulting loss
of liberty, rights, and property
• Because of abuses, standards changed to provide a right to
legal representation and trial prior to coerced treatment and
put such decisions with judges/magistrates
• Due to extremes in legal delays and loss of freedom while
waiting; psychiatrists became involved with the decision
around compulsory inpatient treatment in 1951 (Draft Act
Governing the Hospitalization of the Mentally Ill from NIMH)
• 1950s: Over 550,000 in psychiatric hospitals
History
• Advent of effective antipsychotic medications in the 1950s
leads to rejection of need for massive involuntary
hospitalizations
• Advancement of the civil rights movement leads to push away
from state mental hospitals to more humane treatment
• 1963: President Kennedy signs Community Mental Health Act
which was to pave the way from state hospitalization to
outpatient care and community living for those living with SMI
• Census of state hospitals drops to approximately 30,000 in the
1990s; massive closure of state hospitals
Commitment Standards Changed
• With deinstitutionalization the standard for
commitment changed from need for treatment to
dangerousness (suicidality/homicidality that is
imminent (close future event)) and grave disability
(inability to provide for necessities for basic survival)
• Legal rights defined through 1970s: Right to
representation; right to hearing for hospitalizations
longer than state requirements of days to up to 2
weeks
• Requirement of least restrictive level of care to meet
needs of non-dangerous patients
Unintended Consequences: Where We Are Today
• Current commitment criteria make it nearly
impossible to be admitted involuntarily to a hospital
for inpatient care
• Families must watch loved ones who are non-violent
decompensate to the point of being unable to care
for themselves
• Marginalization of the mentally ill: homelessness,
incarceration (often as a means of obtaining
treatment due to short hospitalizations based on
dangerousness criteria)
 2016 National Survey on Drug Use and Health

MENTAL AND SUBSTANCE USE DISORDERS IN AMERICA: 2016

Among those with a substance use disorder about: Among those with a mental illness about:
• 1 in 3 (33%) struggled with illicit drugs 1 in 4 (25%) had a serious mental illness
• 3 in 4 (75%) struggled with alcohol use
• 1 in 9 (11%) struggled with illicit drugs and alcohol

18.3%
7.5% 3.4% .3 Over 2 million in
(44.7 MILLION)
%
(20.1 MILLION) (8.2 MILLION) jails and prisons
People aged
.2
50% with SUDs
People aged 12 or 18+ HAD BOTH %

18 or older had a (http://www.prisonerhealth.

older had a a substance use org)

and a mental mental illness 15-20% with SMI

substance use disorder Torrey EF, et al. 2014
disorder
Issues in Justice Populations

 Reality in the United States: Large numbers with mental

and substance use disorders incarcerated; few get
treatment
 Failure of states to provide adequate mental health care
and treatment for SUDs in community settings
 State civil commitment laws inadequate to provide
necessary treatment/treatment duration
 There is a failure to use those laws to compel treatment
for individuals at risk of harm to self or others
 Contributes to infractions/crimes that make it difficult
for those living with SMI to be successful in
communities
Issues in Justice Populations

• Infractions committed while impaired by untreated mental

illness
• Legal charges related to drug use
• Convictions make it much more difficult to get housing and
employment leading to vulnerability for recidivism
• Transition from incarceration to release challenging in
terms of ongoing mental health needs with frequent loss
from treatment
• Anosognosia can make it difficult for a person to recognize
their illness leading to non-adherence and cycling of
adverse outcomes: unstable housing, justice involvement,
risk for incarceration
 Advances in Our Understanding of SMI

• Multifactorial etiology:
• Abnormal brain development
• Evidence for neurodegenerative process in schizophrenia: neuronal atrophy,
progressive structural brain changes; genetic vulnerability
• Neurotransmitter abnormalities: glutamate/excitatory amino acid
neurotransmission deficits that alter dopamine neurotransmission: medications
development areas of focus
• Evidence for more refractory symptoms and more severe course of illness with
increased duration of untreated psychosis
• Medications to address psychosis are also associated with improvement in
cognitive function: attention, memory, learning
• Cognitive therapies have been developed that can assist a person in managing
illness
• Peer supports can help people with SMI live in their communities
• Early intervention improves function and diminishes impact of illness
• Why aren’t we demanding that people with psychotic
disorders have access to treatment?
Potential Solutions: Addressing Untreated Serious Mental Illness in a
Person with Dangerous Behavior with Assisted Outpatient Treatment

• A judge orders a person with serious mental illness to

follow a court-ordered treatment plan
• Outcomes from New York (Civil commitment for SMI
authorized through Kendra’s Law):
 74% fewer participants experienced homelessness
 77% fewer experienced psychiatric hospitalization
 56% reduction in length of hospitalization
 83% fewer experienced arrest
 87% fewer experienced incarceration
 49% fewer abused alcohol
 48% fewer abused drugs
 81% said AOT helped them get and stay well
Addressing Serious Mental Illness Going Forward:
Legislative Mandates

• A review of the current state of

treatment and recovery services
for SMI/SED in the United States

• Recommendations by public
members aimed at improving care
and services

• Consideration and exploration of

how federal departments that
currently serve these populations
might enact recommendations
 INTERDEPARTMENTAL SERIOUS MENTAL ILLNESS
COORDINATING COMMITTEE

Report to Congress required:

• A summary of advances in serious mental illness (SMI) and
serious emotional disturbance (SED)

• An evaluation of the effect federal programs related to

serious mental illness have on public health

• 45 specific recommendations for actions that agencies can

take to better coordinate the administration of mental
health services for adults with SMI or children with SED
organized into 5 focus areas
INTERDEPARTMENTAL SERIOUS MENTAL ILLNESS
COORDINATING COMMITTEE

• Focus 1: Strengthen Federal Coordination to Improve Care

 Improve interdepartmental coordination; evaluate the federal
approach to serving those with SMI/SED; use data to improve
quality of care/outcomes
• Focus 2: Access and Engagement: Make It Easier to Get Good Care
 Early identification and intervention for youth
 Crisis intervention services development
 Continuum of care with outpatient services as alternatives to
inpatient care/psychiatric bed capacity
 Reassessment of civil commitment standards and processes
 Use of new technologies to increase access e.g., telehealth
 INTERDEPARTMENTAL SERIOUS MENTAL ILLNESS
COORDINATING COMMITTEE

• Focus 3: Treatment and Recovery – Close the Gap

Between What Works and What Is Offered
 Coordinated specialty care for first episode psychosis:
FEP/CHR
 Advance suicide prevention strategies: Zero Suicide
 Make housing more available for people living with
SMI/SED
 Focus on development of integrated services for
mental and substance use disorders; physical
healthcare: CCBHCs/integrated care at FQHCs
 INTERDEPARTMENTAL SERIOUS MENTAL ILLNESS
COORDINATING COMMITTEE

• Focus 4: Increase Opportunities for Diversion and Improve

Care for People With SMI and SED Involved in the Criminal
and Juvenile Justice Systems
 Train first responders on how to work with people with SMI/SED
 Sustain therapeutic dockets in federal, state, and local courts
 Universal screening for mental disorders, substance use disorders,
and behavioral health needs for each person incarcerated
 Reduce barriers that impede immediate access to treatment and
recovery services on release
 INTERDEPARTMENTAL SERIOUS MENTAL ILLNESS
COORDINATING COMMITTEE

• Focus 5: Develop Finance Strategies to Increase Availability and

Affordability of Care
 Eliminate financing practices that discriminate against behavioral
healthcare
 Enforce existing parity laws
 Pay for psychiatric and other behavioral health services at rates
comparable to those for physical health problems
 Provide reimbursement for outreach/engagement services related
to mental health care
 Expand the Certified Community Behavioral Health Clinic model
nationwide
 INTERDEPARTMENTAL SERIOUS MENTAL ILLNESS
COORDINATING COMMITTEE

• Report sets the stage for work by HHS and other federal government
departments in the years ahead
• In the immediate future, the ISMICC will help to prioritize
recommendations and will continue to meet on a routine basis to
provide guidance as necessary to assist in addressing the
recommendations in this report
• Overall goal is to improve the health and welfare of those living with
serious mental illness
SAMHSA Justice Programs: Mental Illness
• Adult and Youth Treatment Court Collaboratives:
– Programs supporting local courts with greater flexibility to collaborate with
multiple criminal justice system components and local community treatment
and recovery providers
– Focuses on connecting with individuals early in their involvement with the
criminal justice system and prioritizing the participation of municipal and
misdemeanor courts in the collaborative
• Early Diversion Grants:
– Establishes or expands programs that divert adults with SMI or COD from CJ
system to community-based services prior to arrest
– Proposed $10 million increase for 2019
• Assisted Outpatient Treatment: civil commitment to outpatient treatment
– Implements and evaluates new AOT programs and identifies evidence-based
practices in order to reduce the incidence and duration of psychiatric
hospitalization, homelessness, incarcerations, and CJ system interactions
SAMHSA Justice Programs: Substance Use Disorders
• Jail Diversion Program grants –
• Pre-booking diversion
• Veterans programs
• Drug Treatment Courts
– Adult drug courts, juvenile drug courts, family
treatment drug courts
– Drug court grantees may use up to 20 percent of their
award for Medication Assisted Treatment (MAT)
– From FY15-FY16, nearly 16,000 individuals were
diverted into SAMHSA-supported drug court programs
• Offender Reentry Program – Expand access to substance use
treatment services for individuals reintegrating into communities
– Grantees may now begin process of linkage to services
prior to release
Solutions: SAMHSA Criminal Justice Programs and Activities

• Training and Technical Assistance Programs

– GAINS Center for Behavioral Health Transformation and
Justice – Provides webinars, TA events, and a wide variety of
resources for providers and criminal justice practitioners
– Policy Academies
– Technical Expert Panels
• Principles of community-based behavioral health services for
criminal justice
• Peer Roles in Criminal Justice Settings – draft core
competencies for peer workers in criminal justice settings.
• Web resources: Guidelines for Successful Transition of People
with Mental or Substance Use Disorders from Jail and Prison:
Implementation Guide
Summary
• Does everyone with serious mental illness need to be
committed to treatment?
• Should a person experiencing first episode psychosis be
committed for treatment?
• We should reserve civil commitment for those disabled
to the point of dangerousness
• Great majority of those with SMI will not need
compulsory treatment
• Those with SMI of severity to present serious risk
should have access to treatment and recovery services
before legal issues arise
• Serious mental illness is not a crime. Let’s get people
the help they need to keep them out of the legal
system.
Discussion
 References
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L. Glaze and E. Parks, Correctional Populations in the United States, 2011 (Washington, DC: Bureau of Justice
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L.Teplin, G McClelland, K.M Abram, et al., “Crime Victimization in Adults with Severe Mental Illness,” Archives of
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