Involuntary detention – He “willingly put others at risk”

A common retort by opponents of civil commitment is that “we don’t lock up people with diseases other than severe mental illnesses.”

But that isn’t true. Take the involuntary detention of a man with treatment-resistant tuberculosis in an Arizona jail since July. Robert Daniels refused to wear a mask and take other measures to prevent spreading his disease to the public.

Drug-resistant TB, or drug-resistant staph infections, or pandemic flu can create the need for involuntary isolation. So why is it more common for people with mental illnesses to be involuntarily detained compared to other illnesses?

"It's very uncommon that someone would both not want to take treatment and will willingly put others at risk," one expert said of Daniels.

And that is likely the rub – the word “willingly.” Unlike most other illnesses, about half of patients with schizophrenia and bipolar disorder suffer from a condition that affects their ability to recognize the risks associated with failing to treat their illnesses. Anosognosia, or lack of insight, impairs the patient’s ability to recognize that they have an illness - therefore it is more likely that they will not accept treatment that can reduce the risks associated with their untreated illness.

Committing someone to restore them to competency – so they can recognize their illness and the consequences of its nontreatment – is a measure that protects not just society, but also the patient. Most cases of people with untreated severe mental illnesses who endanger the public later turn out to be because the person thought they were saving the world from aliens, or escaping a CIA plot, or responding to commands from ethereal voices. They aren’t choosing to put people at risk – their disease leaves them with no choices.

"She belongs in jail where she can't hurt somebody else"

Tiffany Sutton is under arrest for stabbing a man and attempting to drink his blood.

Her mother - like many others - is actually feeling a measure of relief that her daughter is now in an Arizona jail - because perhaps now, she will get help, or treatment, or at least be kept safe.

"I knew it was coming," [Lorrie] Hanneman said. "I told the police officer I talked to on the last time that she's become a danger to herself and others. She's not afraid to die right now. I honestly believe she wants to die, so I just keep waiting for that phone call that she's dead."

"If I can't help her, then she belongs in jail where she can't hurt somebody else. What else can I do?"

The status quo is unacceptable

It took five terrible years for a jury to decide that Andrea Yates was insane when she murdered her children, despite overwhelming evidence regarding the severity of her illness. She will likely spend the rest of her days in a maximum-security forensic hospital. Eric Clark will spend at least the next 25 years in an Arizona prison, where his family still struggles to ensure he receives adequate treatment. And a story from Pensacola, Florida is the latest in a mind-numbingly long list detailing the terrible conditions the mentally ill face when incarcerated.

The theme running through each of these tragedies is simple: the criminal justice system is a meager substitute for mental health care. Mental health departments across the country are failing in their missions, and are far too willing to abandon the most difficult individuals to jail cells and prisons.

So the next time you read an article about the horrendous conditions in a local jail, or an incident where a family couldn’t get treatment for their son because he wasn’t “dangerous enough yet,” ask yourself, is my mental health department doing all it can to help the most severely ill? Have they implemented AOT? Are they still relying on outdated dangerousness standards for determining who needs care? Are they advocating for change, or simply enforcing the status quo?

We’ve seen the results of the status quo, and they are unacceptable.

SCOTUS ruling

The Court ruled Arizona's law on the insanity defense does not violate constitutional due process and upheld Arizona's definition of the insanity defense. Resources for reporters on U.S. Supreme Court: Clark v. Arizona.

Wash Post: Mentally ill people and their families can't get help

Last week, the U.S. Supreme Court heard a case questioning the constitutionality of Arizona’s insanity defense. The case involves Eric Clark, a young man with untreated schizophrenia who was delusional and thought that aliens had invaded Flagstaff. Eric’s family tried desperately to get help, but could not because he was not yet dangerous. Clark was convicted for shooting and killing a police officer.

On Saturday, April 24, 2006, a Washington Post editorial, writing about the insanity case noted that:

[t]his legal question, however important, comes into play only after the system has failed. The real question should be why people like Mr. Clark's parents so often cannot get help before it's too late. The answer, unfortunately, is as glaring as it is intractable. Politicians don't like paying for care for the critically mentally ill. And the courts, in their zeal to protect the rights of the mentally ill, often neglect their welfare; the courts will generally not allow authorities to hold anyone for treatment in the absence of evidence that he poses a threat, evidence not always available before somebody gets hurt. Instead of taking responsibility for sick people -- some of whose very illnesses prevent them from making informed choices -- our system "frees" them to homelessness or delusions until they do something for which it can exact revenge.

TAC to SCOTUS: Crime, anosognosia, weak laws

The Treatment Advocacy Center filed a “friend of the court” brief filed in the Clark v. Arizona case, that said in part:

[A]nosognosia increases the likelihood that victims of severe mental illness will reject or fail to seek treatment. This problem is exacerbated by antiquated state civil commitment laws that forbid treatment interventions until individuals pose an immediate physical danger to themselves or others. Because untreated severe mental illnesses are closely correlated to an increased risk of violence, anosognosia and these commitment laws operate together to ensure that mental illness will cause some of those it afflicts to engage in criminal behavior.

Some states are reacting to the tragic ramifications of untreated mental illnesses, and consequently anosognosia, by adopting more comprehensive commitment schemes with less restrictive, more flexible standards. New York’s improved law, known as Kendra’s Law, has resulted in dramatic reductions in incarceration, arrests, homelessness and hospitalizations of the severely mentally ill. [1]

Extensive clinical research has found analogous outcomes for reformed commitment laws in numerous states. [2]

TAC respectfully submits that reforms such as these, as opposed to unduly limiting—if not completely obliterating—the insanity defense, are the proper method to balance safety concerns of States with the due process rights of the mentally ill.

The staff and board of directors of TAC thank the attorneys from the Dechert law firm who provided invaluable pro bono services on TAC’s brief:

David A. Kotler
Megan Elizabeth Zavieh
William Gibson, and
Elliot M. Gardner
Princeton, NJ 08543-5218

[1] See N.Y. Mental Hyg. Law § 9.60 (Consol. 2005). Individuals in the first five years of New York’s assisted outpatient treatment (“AOT”) program experienced fewer hospitalizations (77%), episodes of homelessness (74%), arrests (83%), and incarceration (87%), and had improved medication compliance (fifty percent) and participation in substance abuse treatment (65%). Fifty-five percent fewer recipients engaged in suicide attempts or physical harm to themselves. Three out of every four of the program participants reported that Kendra’s Law had helped them regain control of their lives; four out of five said that AOT helped them to get and stay well. See New York State Office of Mental Health, Kendra’s Law: Final Report on the Status of Assisted Outpatient Treatment (2005).

[2] See, e.g., Marvin S. Swartz et al., Can Involuntary Outpatient Commitment Reduce Hospital Recidivism?, 156 Am. J. Psychiatry 1968, 1973 (1999) (hospital admissions reduced by 57% when used for at least six months and combined with routine mental health services); Jeffrey Swanson et al., Involuntary Out-Patient Commitment and Reduction of Violent Behaviour in Persons With Severe Mental Illness, 176 Brit. J. Psychiatry 224 (2000) (assisted outpatient treatment of six months or more combined with routine outpatient services reduced the incidence of violence in half (24% versus 48%)); Jeffrey Swanson et al., Can Involuntary Outpatient Commitment Reduce Arrests Among Persons with Severe Mental Illness?, 28 Crim. Just. & Behav. 156, 182–83 (2001) (same); Virginia A. Hiday et al., Impact of Outpatient Commitment on Victimization of People with Severe Mental Illness, 159 Am. J. Psychiatry 1403 (2002); Gustavo A. Fernandez & Sylvia Nygard, Impact of Involuntary Outpatient Commitment on the Revolving-Door Syndrome in North Carolina, 41 Hosp. and Community Psychiatry 1001, 1003 (1990) (median readmissions decrease from 3.7 to 0.7 per 1,000 days); Virginia A. Hiday & Teresa L. Scheid-Cook, The North Carolina Experience with Outpatient Commitment: A Critical Appraisal, 10 Int’l J. Law & Psychiatry 215, 229 (1987) (over six months, 30% medication refusal versus 60% absent orders); Robert A. Van Putten et al., Involuntary Outpatient Commitment in Arizona: A Retrospective Study, 39 Hosp. & Community Psychiatry 953, 957 (1988) (“almost no patients” without orders voluntarily maintain treatment in mental health system versus 71% who do in group with orders); Guido Zanni & Leslie deVeau, Inpatient Stays Before and After Outpatient Commitment, 37 Hosp. & Community Psychiatry 941, 942 (1986) (hospital readmissions decrease from 1.81 to 0.95 per year).

Wrapup on Supreme Court case

SCOTUS blog on the arguments in today’s insanity defense case Clark v. Arizona …

More: NPR story TAC’s brief to the Court AP story on the Clark case

NPR on Supreme Court case

On NPR’s “Morning Edition” this morning ...

Legal Affairs: High Court Takes on Case Questioning Insanity Defense
by Nina Totenberg

Morning Edition, April 19, 2006 · The Supreme Court is reviewing a challenge to the insanity defense. A young Arizona man killed a police officer and his parents want him declared guilty but insane. But the state does not want the defendant's mental state considered in court. The case of Clark v. Arizona could end up making it more difficult for criminal defendants to prove insanity.

LISTEN NOW ...

Supreme Court hears insanity defense

Tomorrow the US Supreme Court will hear a direct challenge to the insanity defense for the first time in more than 25 years, since the John Hinckley case prompted so many states to change their laws.

At issue? Eric Clark, a young man with untreated schizophrenia who killed a police officer because he thought he was an alien. He didn’t know he was ill, like about half of those with schizophrenia.

His parents just want to get him treatment – the same thing they wanted before he shot Officer Jeff Moritz.

"Lock him up for his crime," Terry Clark says, "but treat him for his mental illness, please. Eric didn't choose to be mentally ill. It chose him." – CNN (Associated Press), April 18, 2005

25 years since Hinkley ...

Today is the 25th anniversary of John Hinckley’s shooting of President Ronald Reagan. This case’s impact on the insanity defense has been phenomenal.

On April 19, the U.S. Supreme Court will hear an insanity defense case for the first time since the Hinckley case led to the change in so many state laws. The case centers around Eric Clark, a young man with schizophrenia. Clark killed a Flagstaff, Arizona, police officer during a traffic stop and was sentenced to 25 years in prison.

As with about 50 percent of those with schizophrenia, Clark lacked insight into his illness - he didn't know he was sick, and in fact thought that Flagstaff was being invaded by aliens.