Risk Communication & Assessment: Are Meteorologists Superior to Psychologists/Psychiatrists?

Abstract

Meteorology is often thought of as a field with highly developed techniques for forecasting rare and severe events. Risk assessment of another type of rare and severe event – violence to others – occurs in mental health law. The analogy between these 2 forms of risk assessment is explored in this article. How meteorologists go about assessing the risk of harmful weather is described. Implications from the meteorological analogy are drawn for 1 aspect of violence prediction that is routinely ignored in mental health law: the communication of risk “forecasts.”

Reference

Monahan, J. & Steadman, H.J. (1996) Violent Storms and Violent People: How Meteorology can Inform Risk Communication in Mental Health Law. American Psychologist. 51(9), pp.931-938. https://doi.org/10.1037/0003-066X.51.9.931.

You can read a free copy of the article here.

What is the Paranoia Network?

Introduction

The Paranoia Network, founded in November 2003, is a self-help user-run organisation in Sheffield, England, for people who have paranoid or delusional beliefs.

Background

In contrast to mainstream psychiatry, that tends to see such beliefs as signs of psychopathology, the Paranoia Network promotes a philosophy of living with unusual and compelling beliefs, without necessarily pathologising them as signs of mental illness. It was partly inspired by the Hearing Voices Network’s approach to auditory hallucinations.

What would otherwise seem to be a relatively minor disagreement over theory is complicated by the fact that people diagnosed as delusional can often be detained under mental health law and treated without their consent. Therefore, many of the criticisms of the diagnosis or definition have important ethical and political implications, which often leads to heated public debate.

This page is based on the copyrighted Wikipedia article < https://en.wikipedia.org/wiki/Paranoia_Network >; it is used under the Creative Commons Attribution-ShareAlike 3.0 Unported License (CC-BY-SA). You may redistribute it, verbatim or modified, providing that you comply with the terms of the CC-BY-SA.

What is Informed Refusal?

Introduction

Informed refusal is where a person has refused a recommended medical treatment based upon an understanding of the facts and implications of not following the treatment. Informed refusal is linked to the informed consent process, as a patient has a right to consent, but also may choose to refuse.

Refer to Informed Consent, Mature Minor Doctrine, and Gillick Competence.

Background

The individual needs to be in possession of the relevant facts as well as of their reasoning faculties, such as not being intellectually disabled or mentally ill and without an impairment of judgement at the time of refusing. Such impairments might include illness, intoxication, drunkenness, using drugs, insufficient sleep, and other health problems. In cases where an individual is considered unable to give informed refusal, another person (guardian) may be authorised to give consent on their behalf. The concept grew out of and is similar to that of informed consent, but much less commonly used and applied. In the United States, it is recognised in certain state laws (in 2006: California, Nevada, Vermont, and Michigan) as well as in various court decisions.

As applied in the medical field, a physician has made an assessment of a patient and finds a specific test, intervention, or treatment is medically necessary. The patient refuses to consent to this recommendation. The physician then needs to explain the risks of not following through with the recommendations to allow the patient to make an informed decision against the recommendation. While in the past documentation of refusal of treatment has not been important, the widespread use of managed care, cost containment processes, as well as increased patient autonomy have created a situation where documented “informed refusal” is viewed as becoming more important. When refusal of treatment may result in significant damage or death, the interaction needs to be documented to protect the care giver in a potential later litigation against the allegation that the recommendation was either not made or not understood. On occasion, a patient will also refuse to sign the “informed refusal” document, in which case a witness would have to sign that the informed process and the refusal took place.

The pregnant patient represents a specific dilemma in the field of informed refusal as her action may result in harm or death to the foetus. Ethicists disagree on how to handle this situation.

What is Marion’s Case (1982)?

Introduction

Secretary of the Department of Health and Community Services v JWB and SMB, commonly known as Marion’s Case, is a leading decision of the High Court of Australia, concerning whether a child has the capacity to make decisions for themselves, and when this is not possible, who may make decisions for them regarding major medical procedures.

It largely adopts the views in Gillick v West Norfolk Area Health Authority, a decision of the House of Lords in England and Wales.

Refer to Mature Minor Doctrine, Informed Consent, and Informed Refusal.

Background

“Marion”, a pseudonym for the 14-year-old girl at the centre of this case, suffered from intellectual disabilities, severe deafness, epilepsy and other disorders. Her parents, a married couple from the Northern Territory sought an order from the Family Court of Australia authorising them to have Marion undergo a hysterectomy and an oophrectomy (removal of ovaries). The practical effect would be sterilisation and preventing Marion from being able to have children and many of the hormonal effects of adulthood.

Under the Family Law Act the primary concern for matters involving children is that the court must act in the child’s best interests. The majority of the High Court made it clear that it was merely deciding a point of law and that the decision about what was in the child’s “best interests” would be left to the Family Court of Australia after the case.

The main legal debate that arose was who has the legal authority to authorise the operation. Three options existed: the parents (as legal guardians of their daughter), Marion or an order of a competent court, such as the Family Court of Australia. The Full Court of the Family Court was asked to decide:

  1. Could the parents, as joint guardians authorise the sterilisation procedure;
  2. If not, does the Family Court have jurisdiction to:
    (a) authorise the carrying out of such a procedure;
    (b) enlarge the powers, rights or duties of the parents to enable them to authorise such a procedure; or
    (c) approve the consent of the Applicants, as to the proposed procedure.

The majority of the Family Court, Strauss and McCall JJ held that the parents, as joint guardians could authorise the sterilisation procedure. Nicholson CJ held that the Family Court had jurisdiction to authorise the procedure.

The department, together with the Attorney-General for Australia, argued that only a court could authorise such a major operation and that the Family Court jurisdiction included any matter relating to the welfare of a child even if it was not a dispute about custody, guardianship or access.

The parents, however, “argued that the decision to sterilise a child is not significantly different from other major decisions that parents and guardians have to make for children and that the involvement of the Family Court is optional and only of a ‘supervisory nature’. Their argument was that, provided such a procedure is in the best interests of the child, parents as guardians can give lawful consent to a sterilisation on behalf of a mentally incompetent child.”

Judgement

The High Court recognised the right of everyone to bodily integrity under national and international law, and made a distinction between therapeutic and non-therapeutic surgical procedures as well as the duty of surrogates to act in the best interests of the incompetent patient.

In the case, the High Court ruled that while parents may consent to medical treatment for their children, the authority does not extend to treatment not in the child’s best interests. Also, the Court held that if medical treatment has sterilisation as its principal objective, parents do not have the authority to consent on behalf of their child.

Obiter Dictum

The statement by Deane J that parents may grant surrogate consent for the non-therapeutic circumcision of male children is obiter dictum and not part of the judgment. Male circumcision was not at issue in the case and no evidence or testimony was offered regarding male circumcision.

What is Mental Health Law?

Introduction

Mental health law includes a wide variety of legal topics and pertain to people with a diagnosis or possible diagnosis of a mental health condition, and to those involved in managing or treating such people. Laws that relate to mental health include:

  • Employment laws, including laws that prohibit employment discrimination on the basis of a mental health condition, require reasonable accommodations in the workplace, and provide mental health-related leave;
  • Insurance laws, including laws governing mental health coverage by medical insurance plans, disability insurance, workers compensation, and Social Security Disability Insurance;
  • Housing laws, including housing discrimination and zoning;
  • Education laws, including laws that prohibit discrimination, and laws that require reasonable accommodations, equal access to programmes and services, and free appropriate public education;
  • Laws that provide a right to treatment;
  • Involuntary commitment and guardianship laws;
  • Laws governing treatment professionals, including licensing laws, confidentiality, informed consent, and medical malpractice;
  • Laws governing admission of expert testimony or other psychiatric evidence in court; and
  • Criminal laws, including laws governing fitness for trial or execution, and the insanity defence.

Mental health law has received relatively little attention in scholarly legal forums. The University of Memphis Cecil C. Humphreys School of Law in 2011 announced the formation of a student-edited law journal entitled “Mental Health Law & Policy Journal.”

United States

Employment

Title I of the Americans with Disabilities Act of 1990 (“ADA”) is a civil rights law that protects individuals with depression, posttraumatic stress disorder (“PTSD”), and other mental health conditions in the workplace. It prohibits employers with 15 or more employees from firing, refusing to hire, or taking other adverse actions against a job applicant or employee based on real or perceived mental health conditions. It also strictly limits the circumstances under which an employer can ask for information about medical conditions, including mental health conditions, and imposes confidentiality requirements on any medical information that the employer does have.

The ADA also requires employers to provide reasonable accommodations to job applicants or employees with mental health conditions under some circumstances. A reasonable accommodation is a special arrangement or piece of equipment that a person needs because of a medical condition to apply for a job, do a job, or enjoy the benefits and privileges of employment. Examples include a flexible schedule, changes in the method of supervision, and permission to work from home. To have the right to a reasonable accommodation, the worker’s mental health condition must meet the ADA’s definition of a “current disability.” Conditions that should easily qualify include major depression, PTSD, bipolar disorder, obsessive-compulsive disorder (“OCD”), and schizophrenia. Other conditions may also qualify, depending on what the symptoms would be if the condition were left untreated, during an active episode (if the condition involves active episodes). The symptoms do not need to be severe or permanent for the condition to be a disability under the ADA.

Under the Family and Medical Leave Act of 1993 (FMLA), certain employees are entitled to up to twelve weeks of job-protected and unpaid leave to recover from a serious illness or to care for a family member with a serious illness, among other reasons. To be eligible, the employer must have had 50 or more employees in 20 or more workweeks in the current or preceding calendar year, or else must be a public agency, elementary school, or secondary school, and the employee must have worked for the employer for at least 12 months, must have at least 1,250 hours of service for the employer during the 12-month period immediately preceding the leave, and must work at a location where the employer has at least 50 employees within 75 miles.

United Kingdom

Various pieces of legislation including Mental Health Act 1983 and the Mental Capacity Act 2005 govern mental health law giving mental health professionals the ability to commit individuals, treat them without consent and place restrictions on them while in public through outpatient commitment, according to the rules of this legislation. These decisions can be challenged through the mental health tribunals which contain members of the judiciary, though the initial decisions are made by mental health professionals alone.

Around the World

Civil Commitment

Mental health legislation is largely used in the management of psychiatric disorders, such as dementia or psychosis, and developmental disabilities where a person does not possess the ability to act in a legally competent manner and requires treatment and/or another person to act in his or her best interests. The laws generally cover the requirements and procedures for involuntary commitment and compulsory treatment in a psychiatric hospital or other facility.

In some jurisdictions, court orders are required for compulsory treatment; in others, psychiatrists may treat compulsorily by following set procedures, usually with means of appeal or regular scrutiny to ensure compliance with the law.

Sources of Law

Mental health law includes areas of both civil and criminal common and statutory law.

Common law is based on long-standing English legal principles, as interpreted through case law. Mental health-related legal concepts include mens rea, insanity defences; legal definitions of “sane,” “insane,” and “incompetent;” informed consent; and automatism, amongst many others.

Statutory law usually takes the form of a mental health statute. An example is the Mental Health Act 1983 in England and Wales. These acts codify aspects of the treatment of mental illness and provides rules and procedures to be followed and penalties for breaches.

Not all countries have mental health acts. The World Health Report (2001) lists the following percentages, by region, for countries with and without mental health legislation.

What is the Community Mental Health Act of 1963?

Introduction

The Community Mental Health Act of 1963 (CMHA) (also known as the Community Mental Health Centres Construction Act, Mental Retardation Facilities and Construction Act, Public Law 88-164, or the Mental Retardation and Community Mental Health Centres Construction Act of 1963) was an act to provide federal funding for community mental health centres and research facilities in the United States.

Background

This legislation was passed as part of John F. Kennedy’s New Frontier. It led to considerable deinstitutionalisation.

In 1955, Congress passed the Mental Health Study Act, leading to the establishment of the Joint Commission on Mental Illness and Mental Health. That Commission issued a report in 1961, which would become the basis of the 1963 Act.

The CMHA provided grants to states for the establishment of local mental health centres, under the overview of the National Institute of Mental Health. The NIH also conducted a study involving adequacy in mental health issues. The purpose of the CMHA was to build mental health centres to provide for community-based care, as an alternative to institutionalisation. At the centres, patients could be treated while working and living at home.

Only half of the proposed centres were ever built; none were fully funded, and the act did not provide money to operate them long-term. Some states saw an opportunity to close expensive state hospitals without spending some of the money on community-based care. Deinstitutionalisation accelerated after the adoption of Medicaid in 1965. During the Reagan administration, the remaining funding for the act was converted into a mental-health block grant for states. Since the CMHA was enacted, 90% of beds have been cut at state hospitals.

The CMHA proved to be a mixed success. Many patients, formerly warehoused in institutions, were released into the community. However, not all communities had the facilities or expertise to deal with them. In many cases, patients wound up in adult homes or with their families, or homeless in large cities, but without the mental health care they needed.

What was Addington vs Texas (1979)?

Introduction

Addington v. Texas, 441 U.S. 418 (1979), was a landmark decision of the US Supreme Court that set the standard for involuntary commitment for treatment by raising the burden of proof required to commit persons for psychiatric treatment from the usual civil burden of proof of “preponderance of the evidence” to “clear and convincing evidence”.

Background

Before Frank Addington was arrested on the misdemeanour charge of “assault threat” against his mother, Addington’s mother filed a petition with the court, in accordance with Texas law, requesting that Addington be indefinitely involuntarily committed to a state psychiatric hospital. Addington had a long history of mental and emotional problems and past psychiatric hospitalisations. The state trial court issued jury instructions that the decision be based on “clear, unequivocal and convincing evidence” that Addington was mentally ill and that hospitalisation was required for his own welfare and the welfare of others. The jury found that Addington was mentally ill and required hospitalisation. Thereupon the trial court ordered his indefinite commitment. He was indefinitely committed to Austin State Hospital.

However, Addington appealed to the Texas Court of Appeals, based on the argument the court should have used the “beyond a reasonable doubt” standard of proof. The appeals court reversed, agreeing with Addington. The Texas Supreme Court then reversed the Court of Appeals’ decision, reinstating the trial court’s orders. It concluded that the standard of proof of the preponderance of the evidence satisfied due process in a civil commitment proceeding.

Addington then appealed to the US Supreme Court on a writ of certiorari (in law, certiorari is a court process to seek judicial review of a lower court of government agency).

Opinion of the Court

The appeal was dismissed and certiorari granted; the lower court’s decision was vacated and remanded. The court said the issue of an individual’s interest in liberty is of such weight and gravity that a higher standard of proof is required than is normal in civil cases brought under state law. Because of the uncertainties of psychiatric diagnosis, the burden of proof does not need to be as high as “beyond a reasonable doubt” in criminal cases, but should be a “clear and convincing” standard of proof as required by the Fourteenth Amendment in such a civil proceeding to commit an individual involuntarily for an indefinite period to a state psychiatric hospital.

Further, the opinion touched on the issue of an involuntary commitment as primarily medical in nature and needing the expertise of mental health experts.

Whether the individual is mentally ill and dangerous to either himself or others and is in need of confined therapy turns on the meaning of the facts which must be interpreted by expert psychiatrists and psychologists.

Subsequent Developments

The court raised the bar for committing someone against their will in a civil commitment proceeding. When the stakes are exceptionally high in civil matters, the burden of proof must be “clear and convincing evidence”. The case raised important issues regarding civil commitment by placing the burden of proof on the petitioner, that is the party seeking the involuntary commitment of a person.

The opinion also suggested that it was not necessarily for the trier of facts to draw the necessary conclusions without the expertise of psychiatrists and psychologists.

The Supreme Court also cited the Addington case in Santosky v. Kramer, which set a clear and convincing evidence standard in termination of parental rights cases.

What is Involuntary Commitment?

Introduction

Involuntary commitment, civil commitment, or involuntary hospitalisation (also known informally as sectioning or being sectioned in some jurisdictions, such as the UK) is a legal process through which an individual who is deemed by a qualified agent to have symptoms of severe mental disorder is detained in a psychiatric hospital (inpatient) where they can be treated involuntarily. This treatment may involve the administration of psychoactive drugs, including involuntary administration. In many jurisdictions, people diagnosed with mental health disorders can also be forced to undergo treatment while in the community; this is sometimes referred to as outpatient commitment and shares legal processes with commitment.

Refer to Voluntary Commitment.

Criteria for civil commitment are established by laws which vary between nations. Commitment proceedings often follow a period of emergency hospitalisation, during which an individual with acute psychiatric symptoms is confined for a relatively short duration (e.g. 72 hours) in a treatment facility for evaluation and stabilisation by mental health professionals who may then determine whether further civil commitment is appropriate or necessary. Civil commitment procedures may take place in a court or only involve physicians. If commitment does not involve a court there is normally an appeal process that does involve the judiciary in some capacity, though potentially through a specialist court.

Historically, until the mid-1960s in most jurisdictions in the US, all committals to public psychiatric facilities and most committals to private ones were involuntary. Since then, there have been alternating trends towards the abolition or substantial reduction of involuntary commitment, a trend known as “deinstitutionalisation”. In many currents, individuals can voluntarily admit themselves to a mental health hospital and may have more rights than those who are involuntarily committed. This practice is referred to as voluntary commitment.

In the United States, an indefinite form of commitment is applied to people convicted of some sexual offences.

Purpose

For most jurisdictions, involuntary commitment is applied to individuals believed to be experiencing a mental illness that impairs their ability to reason to such an extent that the agents of the law, state, or courts determine that decisions will be made for the individual under a legal framework. In some jurisdictions, this is a proceeding distinct from being found incompetent. Involuntary commitment is used in some degree for each of the following although different jurisdictions have different criteria. Some jurisdictions limit involuntary treatment to individuals who meet statutory criteria for presenting a danger to self or others. Other jurisdictions have broader criteria. The legal process by which commitment takes place varies between jurisdictions. Some jurisdictions have a formal court hearing where testimony and other evidence may also be submitted where subject of the hearing is typically entitled to legal counsel and may challenge a commitment order through habeas corpus. Other jurisdictions have delegated these power to physicians, though may provide an appeal process that involves the judiciary but may also involve physicians. For example in the UK a mental health tribunal consists of a judge, a medical member, and a lay representative.

First Aid

Training is gradually becoming available in mental health first aid to equip community members such as teachers, school administrators, police officers, and medical workers with training in recognising, and authority in managing, situations where involuntary evaluations of behaviour are applicable under law. The extension of first aid training to cover mental health problems and crises is a quite recent development. A mental health first aid training course was developed in Australia in 2001 and has been found to improve assistance provided to persons with an alleged mental illness or mental health crisis. This form of training has now spread to a number of other countries (Canada, Finland, Hong Kong, Ireland, Singapore, Scotland, England, Wales, and the United States). Mental health triage may be used in an emergency room to make a determination about potential risk and apply treatment protocols.

Observation

Observation is sometimes used to determine whether a person warrants involuntary commitment. It is not always clear on a relatively brief examination whether a person should be committed.

Containment of Danger

Refer to Obligatory Dangerousness Criterion.

Austria, Belgium, Germany, Israel, the Netherlands, Northern Ireland, Russia, Taiwan, Ontario (Canada), and the United States have adopted commitment criteria based on the presumed danger of the defendant to self or to others.

People with suicidal thoughts may act on these impulses and harm or kill themselves.

People with psychosis are occasionally driven by their delusions or hallucinations to harm themselves or others. Research has found that those who suffer from schizophrenia are between 3.4 and 7.4 times more likely to engage in violent behaviour than members of the general public. However, because other confounding factors such as childhood adversity and poverty are correlated with both schizophrenia and violence it can be difficult to determine whether this effect is due to schizophrenia or other factors. In an attempt to avoid these confounding factors, researchers have tried comparing the rates of violence amongst people diagnosed with schizophrenia to their siblings in a similar manner to twin studies. In these studies people with schizophrenia are found to be between 1.3 and 1.8 times more likely to engage in violent behaviour.

People with certain types of personality disorders can occasionally present a danger to themselves or others.

This concern has found expression in the standards for involuntary commitment in every US state and in other countries as the danger to self or others standard, sometimes supplemented by the requirement that the danger be imminent. In some jurisdictions, the danger to self or others standard has been broadened in recent years to include need-for-treatment criteria such as “gravely disabled”.

Deinstitutionalisation

Refer to Deinstitutionalisation.

Starting in the 1960s, there has been a worldwide trend toward moving psychiatric patients from hospital settings to less restricting settings in the community, a shift known as deinstitutionalisation. Because the shift was typically not accompanied by a commensurate development of community-based services, critics say that deinstitutionalisation has led to large numbers of people who would once have been inpatients as instead being incarcerated or becoming homeless. In some jurisdictions, laws authorising court-ordered outpatient treatment have been passed in an effort to compel individuals with chronic, untreated severe mental illness to take psychiatric medication while living outside the hospital (e.g. Laura’s Law and Kendra’s Law).

Before the 1960s deinstitutionalisation there were earlier efforts to free psychiatric patients. Philippe Pinel (1745-1826) ordered the removal of chains from patients.

In a study of 269 patients from Vermont State Hospital done by Courtenay M. Harding and associates, about two-thirds of the ex-patients did well after deinstitutionalisation.

Around the World

France

In 1838, France enacted a law to regulate both the admissions into asylums and asylum services across the country. Édouard Séguin developed a systematic approach for training individuals with mental deficiencies, and, in 1839, he opened the first school for the intellectually disabled. His method of treatment was based on the idea that the intellectually disabled did not suffer from disease.

United Kingdom

In the United Kingdom, provision for the care of the mentally ill began in the early 19th century with a large state-led effort. Public mental asylums were established in Britain after the passing of the 1808 County Asylums Act. This empowered magistrates to build rate-supported asylums in every county to house the many ‘pauper lunatics’. Nine counties first applied, and the first public asylum opened in 1812 in Nottinghamshire. Parliamentary Committees were established to investigate abuses at private madhouses like Bethlem Hospital – its officers were eventually dismissed and national attention was focused on the routine use of bars, chains and handcuffs and the filthy conditions the inmates lived in. However, it was not until 1828 that the newly appointed Commissioners in Lunacy were empowered to license and supervise private asylums.

The Lunacy Act 1845 was an important landmark in the treatment of the mentally ill, as it explicitly changed the status of mentally ill people to patients who required treatment. The Act created the Lunacy Commission, headed by Lord Shaftesbury, to focus on lunacy legislation reform. The commission was made up of eleven Metropolitan Commissioners who were required to carry out the provisions of the Act; the compulsory construction of asylums in every county, with regular inspections on behalf of the Home Secretary. All asylums were required to have written regulations and to have a resident qualified physician. A national body for asylum superintendents – the Medico-Psychological Association – was established in 1866 under the Presidency of William A. F. Browne, although the body appeared in an earlier form in 1841.

At the turn of the century, England and France combined had only a few hundred individuals in asylums. By the late 1890s and early 1900s, this number had risen to the hundreds of thousands. However, the idea that mental illness could be ameliorated through institutionalisation was soon disappointed. Psychiatrists were pressured by an ever-increasing patient population. The average number of patients in asylums kept on growing. Asylums were quickly becoming almost indistinguishable from custodial institutions, and the reputation of psychiatry in the medical world had hit an extreme low.

United States

In the United States, the erection of state asylums began with the first law for the creation of one in New York, passed in 1842. The Utica State Hospital was opened approximately in 1850. The creation of this hospital, as of many others, was largely the work of Dorothea Lynde Dix, whose philanthropic efforts extended over many states, and in Europe as far as Constantinople. Many state hospitals in the United States were built in the 1850s and 1860s on the Kirkbride Plan, an architectural style meant to have curative effect.

In the United States and most other developed societies, severe restrictions have been placed on the circumstances under which a person may be committed or treated against their will as such actions have been ruled by the United States Supreme Court and other national legislative bodies as a violation of civil rights and/or human rights (e.g. O’Connor v. Donaldson). Thus a person is rarely committed against their will and it is illegal for a person to be committed for an indefinite period of time.

United Nations

United Nations General Assembly Resolution 46/119, “Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care“, is a non-binding resolution advocating certain broadly drawn procedures for the carrying out of involuntary commitment. These principles have been used in many countries where local laws have been revised or new ones implemented. The UN runs programmes in some countries to assist in this process.

Criticism

The dangers of institutions were chronicled and criticized by reformers almost since their foundation. Charles Dickens was an outspoken and high-profile early critic, and several of his novels, in particular Oliver Twist and Hard Times demonstrate his insight into the damage that institutions can do to human beings.

Enoch Powell, when Minister for Health in the early 1960s, was a later opponent who was appalled by what he witnessed on his visits to the asylums, and his famous “water tower” speech in 1961 called for the closure of all NHS asylums and their replacement by wards in general hospitals:

“There they stand, isolated, majestic, imperious, brooded over by the gigantic water-tower and chimney combined, rising unmistakable and daunting out of the countryside – the asylums which our forefathers built with such immense solidity to express the notions of their day. Do not for a moment underestimate their powers of resistance to our assault. Let me describe some of the defenses which we have to storm.”

Scandal after scandal followed, with many high-profile public inquiries. These involved the exposure of abuses such as unscientific surgical techniques such as lobotomy and the widespread neglect and abuse of vulnerable patients in the US and Europe. The growing anti-psychiatry movement in the 1960s and 1970s led in Italy to the first successful legislative challenge to the authority of the mental institutions, culminating in their closure.

During the 1970s and 1990s the hospital population started to fall rapidly, mainly because of the deaths of long-term inmates. Significant efforts were made to re-house large numbers of former residents in a variety of suitable or otherwise alternative accommodation. The first 1,000+ bed hospital to close was Darenth Park Hospital in Kent, swiftly followed by many more across the UK. The haste of these closures, driven by the Conservative governments led by Margaret Thatcher and John Major, led to considerable criticism in the press, as some individuals slipped through the net into homelessness or were discharged to poor quality private sector mini-institutions.

Wrongful Involuntary Commitment

Mental health professionals have, on occasion, wrongfully deemed individuals to have symptoms of a mental disorder, and thereby commit the individual for treatment in a psychiatric hospital. Claims of wrongful commitment are a common theme in the anti-psychiatry movement.

In 1860, the case of Elizabeth Packard, who was wrongfully committed that year and filed a lawsuit and won thereafter, highlighted the issue of wrongful involuntary commitment. In 1887, investigative journalist Nellie Bly went undercover at an asylum in New York City to expose the terrible conditions that mental patients at the time had to deal with. She published her findings and experiences as articles in New York World, and later made the articles into one book called Ten Days in a Mad-House.

In the first half of the twentieth century there were a few high-profile cases of wrongful commitment based on racism or punishment for political dissenters. In the former Soviet Union, psychiatric hospitals were used as prisons to isolate political prisoners from the rest of society. British playwright Tom Stoppard wrote Every Good Boy Deserves Favour about the relationship between a patient and his doctor in one of these hospitals. Stoppard was inspired by a meeting with a Russian exile. In 1927, after the execution of Sacco and Vanzetti in the United States, demonstrator Aurora D’Angelo was sent to a mental health facility for psychiatric evaluation after she participated in a rally in support of the anarchists. Throughout the 1940s and 1950s in Canada, 20,000 Canadian children, called the Duplessis orphans, were wrongfully certified as being mentally ill and as a result were wrongfully committed to psychiatric institutions where they were forced to take psychiatric medication that they did not need, and were abused. They were named after Maurice Duplessis, the premier of Quebec at the time, who deliberately committed these children to in order to misappropriate additional subsidies from the federal government. Decades later in the 1990s, several of the orphans sued Quebec and the Catholic Church for the abuse and wrongdoing. In 1958, black pastor and activist Clennon Washington King Jr. tried enrolling at the University of Mississippi, which at the time was white, for summer classes; the local police secretly arrested and involuntarily committed him to a mental hospital for 12 days.

Patients are able to sue if they believe that they have been wrongfully committed. In one instance, Junius Wilson, an African American man, was committed to Cherry Hospital in Goldsboro, North Carolina in 1925 for an alleged crime without a trial or conviction. He was castrated. He continued to be held at Cherry Hospital for the next 67 years of his life. It turned out he was deaf rather than mentally ill.

In many American states sex offenders who have completed a period of incarceration can be civilly committed to a mental institution based on a finding of dangerousness due to a mental disorder. Although the United States Supreme Court determined that this practice does not constitute double jeopardy, organisations such as the American Psychiatric Association (APA) strongly oppose the practice. The Task Force on Sexually Dangerous Offenders, a component of APA’s Council on Psychiatry and Law, reported that “in the opinion of the task force, sexual predator commitment laws represent a serious assault on the integrity of psychiatry, particularly with regard to defining mental illness and the clinical conditions for compulsory treatment. Moreover, by bending civil commitment to serve essentially non-medical purposes, statutes threaten to undermine the legitimacy of the medical model of commitment.”

What is O’Connor vs. Donaldson (1975)?

Introduction

O’Connor v. Donaldson, 422 U.S. 563 (1975), was a landmark decision of the US Supreme Court in mental health law ruling that a state cannot constitutionally confine a non-dangerous individual who is capable of surviving safely in freedom by themselves or with the help of willing and responsible family members or friends.

Since the trial court jury found, upon ample evidence, that petitioner did so confine respondent, the Supreme Court upheld the trial court’s conclusion that petitioner had violated respondent’s right to liberty.

Refer to Involuntary Commitment.

Overview

Kenneth Donaldson (confined patient) had been held for 15 years in Florida State Hospital at Chattahoochee, due to needs of “care, maintenance, and treatment.” He filed a lawsuit against the hospital and staff members claiming they had robbed him of his constitutional rights, by confining him against his will. Donaldson won his case (including monetary damages) in United States District Court, which was affirmed by the United States Court of Appeals for the Fifth Circuit. In 1975, the United States Supreme Court agreed that Donaldson had been improperly confined but vacated the award of damages. On remand, the Fifth Circuit ordered that a new trial on damages be held.

A finding of “mental illness” alone cannot justify a State’s locking a person up against his will and keeping him indefinitely in simple custodial confinement. Assuming that that term can be given a reasonably precise content and that the “mentally ill” can be identified with reasonable accuracy, there is still no constitutional basis for confining such persons involuntarily if they are dangerous to no one and can live safely in freedom.

May the State confine the mentally ill merely to ensure them a living standard superior to that they enjoy in the private community? That the State has a proper interest in providing care and assistance to the unfortunate goes without saying. But the mere presence of mental illness does not disqualify a person from preferring his home to the comforts of an institution. Moreover, while the State may arguably confine a person to save him from harm, incarceration is rarely if ever a necessary condition for raising the living standards of those capable of surviving safely in freedom, on their own or with the help of family or friends. May the State fence in the harmless mentally ill solely to save its citizens from exposure to those whose ways are different? One might as well ask if the State, to avoid public unease, could incarcerate all who are physically unattractive or socially eccentric. Mere public intolerance or animosity cannot constitutionally justify the deprivation of a person’s physical liberty. In short, a State cannot constitutionally confine without more a non-dangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends.

Kenneth Donaldson

The origins of Donaldson’s institutionalisation began in 1943, at age 34, when he suffered a traumatic episode. He was hospitalized and received treatment, before resuming life with his family.

In 1956 Donaldson travelled to Florida to visit his elderly parents. While there, Donaldson reported that he believed one of his neighbours in Philadelphia might be poisoning his food. His father, worried that his son suffered from paranoid delusions, petitioned the court for a sanity hearing. Donaldson was evaluated, diagnosed with “paranoid schizophrenia,” and civilly committed to the Florida State mental health system. At his commitment trial, Donaldson did not have legal counsel present to represent his case. Once he entered the Florida hospital, Donaldson was placed with dangerous criminals, even though he had never been proved to be dangerous to himself or others. His ward was understaffed, with only one doctor (who happened to be an obstetrician) for over 1,000 male patients. There were no psychiatrists or counsellors, and the only nurse on site worked in the infirmary.

He spent 15 years as a patient; he did not receive any treatment, actively refusing it, and attempting to secure his release. Throughout his stay he denied he was ever mentally ill, and refused to be put into a halfway house.

Donaldson later wrote a book about his experience as a mental patient titled Insanity Inside Out.

What is the California Mental Health Services Act (2005)?

Introduction

On November 2004, voters in the US state of California passed Proposition 63, the Mental Health Services Act (MHSA), which has been designed to expand and transform California’s county mental health service systems.

The MHSA is funded by imposing an additional one percent (1%) tax on individual, but not corporate, taxable income in excess of one million dollars. In becoming law on January 2005, the MHSA represents the latest in a Californian legislative movement, begun in the 1990s, to provide better coordinated and more comprehensive care to those with serious mental illness, particularly in underserved populations. Its claim of successes thus far, such as with the development of innovative and integrated Full Service Partnerships (FSPs), are not without detractors who highlight many problems but especially a lack of oversight, large amount of unspent funds, poor transparency, lack of engagement in some communities, and a lack of adherence to required reporting as challenges MHSA implementation must overcome to fulfil the law’s widely touted potential.

Background

At one time, California was known for having a strong mental health system. Treatment was available for Medi-Cal recipients with few limitations on care. Legislators and voters have acknowledged the inadequacy of California’s historically underfunded mental health system to care for the state’s residents, especially those with serious mental illness, over the past few decades. In 1991, to build a more community- and county-based system of care, the California legislature instituted realignment, a delegation of the control over mental health funds and care delivery from state to county. This was followed by a succession of legislation targeted towards marginalised populations with high documented rates of mental illness, such as the homeless (AB 2034, in 1999) and the potentially violent mentally ill (Laura’s Law, in 2002). However, with the passage of Proposition 63 in 2004, California voters acted upon a widespread perception that state and county mental health systems were still in disrepair, underfunded, and requiring a systematic, organizational overhaul. This perception echoed a nationwide perspective, with the President’s New Freedom Commission on Mental Health in 2003 calling for fundamental transformation of the historically fragmented mental health system. The MHSA is California’s attempt to lead the way in accomplishing such systemic reform.

In the end, voter consciences were pricked by the well-organised and -funded campaign that displayed both the need (50,000 mentally ill homeless people, according to the National Alliance on Mental Illness) and the promise (successes of past mental health initiatives) of increased funding for the mental health system. Then-Assemblyman Darrell Steinberg and Rusty Selix, executive director of the Mental Health Association in California, led the initiative by collecting at minimum 373,816 signatures, along with financial ($4.3 million) and vocal support from stakeholders. Though Governor Arnold Schwarzenegger and the business community were opposed to Proposition 63 because of the tax it would impose on millionaires, the opposition raised only $17,500. On 02 November 2004, Proposition 63 passed with 53.8% of the vote, with 6,183,119 voting for and 5,330,052 voting against the bill.

Overview

The voter-approved MHSA initiative provides for developing, through an extensive stakeholder process, a comprehensive approach to providing community based mental health services and supports for California residents. Approximately 51,000 taxpayers in California will be helping to fund the MHSA through an estimated $750 million in tax revenue during fiscal year 2005-2006.

The MHSA was an unprecedented piece of legislation in California for several reasons:

  • Its funding source, quantity, and allocation is dedicated for mental health services, including times of budget cuts to many other public programmes
  • It was intended to engage communities in prioritising which service elements would be funded.
  • It was focused on developing preventive and innovative programmes to help transform the mental health care system in California.

To accomplish its objectives, the MHSA applies a specific portion of its funds to each of six system-building components:

  • Community programme planning and administration (10%).
  • Community services and supports (45%).
  • Capital (buildings) and information technology (IT) (10%).
  • Education and training (human resources) (10%).
  • Prevention and early intervention (20%).
  • Innovation (5%).

Notably, none of the funds were to be used for programmes with existing fund allocations, unless it was for a new element or expansion in those existing programmes. 51% of the funds have to be spent on children’s service.

The MHSA stipulates that the California State Department of Mental Health (DMH) will contract with county mental health departments (plus two cities) to develop and manage the implementation of its provisions. Oversight responsibility for MHSA implementation was handed over to the sixteen member Mental Health Services Oversight and Accountability Commission (MHSOAC) on July 7, 2005, when the commission first met.

The MHSA specifies requirements for service delivery and supports for children, youths, adults and older adults with serious emotional disturbances and/or severe mental illnesses. MHSA funding will be made annually to counties to:

  • Define serious mental illness among children, adults and seniors as a condition deserving priority attention, including prevention and early intervention services and medical and supportive care
  • Reduce the long-term adverse impact on individuals, families and State and local budgets resulting from untreated serious mental illness.
  • Expand the kinds of successful, innovative service programs for children, adults and seniors already established in California, including culturally and linguistically competent approaches for underserved population.
  • Provide State and local funds to adequately meet the needs of all children and adults who can be identified and enrolled in programmes under this measure.
  • Ensure all funds are expended in the most cost-effective manner and services are provided in accordance with recommended best practices, subject to local and State oversight to ensure accountability to taxpayers and to the public.

Implementation

Starting from enactment, implementation of the MHSA was intended to take six months; in reality, the process of obtaining stakeholder input for administrative rules extended this period by several months. By August 2005, 12 meetings and 13 conference calls involving stakeholders across the state resulted in the final draft of rules by which counties would submit their three-year plans for approval.

Counties are required to develop their own three-year plan, consistent with the requirements outlined in the act, in order to receive funding under the MHSA. Counties are obliged to collaborate with citizens and stakeholders to develop plans that will accomplish desired results through the meaningful use of time and capabilities, including things such as employment, vocational training, education, and social and community activities. Also required will be annual updates by the counties, along with a public review process. County proposals will be evaluated for their contribution to achieving the following goals:

  • Safe and adequate housing, including safe living environments, with family for children and youths.
  • Reduction in homelessness.
  • A network of supportive relationships.
  • Timely access to needed help, including times of crisis.
  • Reduction in incarceration in jails and juvenile halls.
  • Reduction in involuntary services, including reduction in institutionalisation and out-of-home placements.

MHSA specifies three stages of local funding, to fulfil initial plans, three year plans, and long term strategies. No services would be funded in the first year of implementation. The DMH approved the first county plan in January 2006. Allocations for each category of funding were planned to be granted annually, based upon detailed plans with prior approval. However, an amendment to the MHSA, AB 100, which passed in March 2011, serves to streamline the DMH approval and feedback process to the counties, ostensibly to relieve the DMH of some of its administrative burden.

Roles & Responsibilities

While the county mental health departments are involved in the actual implementation of MHSA programmes, the MHSA mandates that several entities support or oversee the counties. These include the State Department of Mental Health (DMH) and the Mental Health Services Oversight and Accountability Commission (MHSOAC).

California State Department of Mental Health (DMH)

In accordance with realignment, the DMH approves county three-year implementation plans, upon comment from the MHSOAC, and passes programmatic responsibilities to the counties. In the first few months immediately following its passage, the DMH has:

  • Obtained federal approvals and Medi-Cal waivers, State authority, additional resources and technical assistance in areas related to implementation.
  • Established detailed requirements for the content of local three year expenditure plans.
  • Developed criteria and procedures for reporting of county and state performance outcomes.
  • Defined requirements for the maintenance of current State and local efforts to protect against supplanting existing programmes and their funding streams.
  • Developed formulas for how funding will be divided or distributed among counties.
  • Determined how funding will flow to counties and set up the mechanics of distribution.
  • Established a 16-member Mental Health Services Oversight and Accountability Commission (MHSOAC), composed of elected State officials and Governor appointees, along with procedures for MHSOAC review of county planning efforts and oversight of DMH implementation.
  • Developed and published regulations and provide preliminary training to all counties on plan development and implementation requirements.

The DMH has directed all counties to develop plans incorporating five essential concepts:

  • Community collaboration.
  • Cultural competence.
  • Client/family-driven mental health system for older adults, adults and transition age youth and family-driven system of care for children and youth.
  • Wellness focus, which includes the concepts of recovery and resilience.
  • Integrated service experiences for clients and their families throughout their interactions with the mental health system.

The DMH, in assuming and asserting its primacy over MHSA implementation, has dictated requirements for service delivery and supports as follows:

  • Full Service Partnership (FSP) Funds: Funds to provide necessary services and supports for initial populations.
  • General System Development Funds: Funds to improve services and infrastructure.
  • Outreach and Engagement Funding: Funds for those populations that are currently receiving little or no service.

Mental Health Services Oversight and Accountability Commission (MHSOAC)

The authors of the MHSA created the MHSOAC to reflect the consumer-oriented focus of the law, mandating at least two appointees with severe mental illness, two other family members of individuals with severe mental illness, and various other community representatives. This diverse commission holds the responsibility of approving county implementation plans, helping develop mental illness stigma-relieving strategies, and recommending service delivery improvements to the state on an as-needed basis. Whenever the commission identifies a critical issue related to the performance of a county mental health programme, it may refer the issue to the DMH.

The first meeting of the MHSOAC was held July 7, 2005, at which time Proposition 63 author Darrell Steinberg was selected unanimously by fellow commissioners as chairman, without comment or discussion. After accepting the gavel, Steinberg was roundly praised for devising Proposition 63’s ‘creative financing’ scheme. Steinberg then said, “We must focus on the big picture,” and stated his priorities with regard to the implementation of the MHSA:

  • Prioritise prevention and early intervention, without falling into the trap of fail first service provision;
  • Address “the plight of those at risk of falling off the edge,”; and
  • Advocate for mental health services from his “bully pulpit.”

MHSOAC Commissioners

In accordance with MHSA requirements, the Commission shall consist of 16 voting members as follows:

  • The Attorney General or his or her designee.
  • The Superintendent of Public Instruction or his or her designee.
  • The Chairperson of the Senate Health and Human Services Committee or another member of the Senate selected by the President pro Tempore of the Senate.
  • The Chairperson of the Assembly Health Committee or another member of the Assembly selected by the Speaker of the Assembly.
  • Twelve appointees of the Governor, who shall seek individuals who have had personal or family experience with mental illness, to include:
    • Two persons with a severe mental illness.
    • A family member of an adult or senior with a severe mental illness.
    • A family member of a child who has or has had a severe mental illness.
    • A physician specialising in alcohol and drug treatment.
    • A mental health professional.
    • A county Sheriff.
    • A Superintendent of a school district.
    • A representative of a labour organisation.
    • A representative of an employer with less than 500 employees.
    • A representative of an employer with more than 500 employees.
    • A representative of a health care services plan or insurer.

State Government Appointees

The initial government officials and designee appointed:

  • Senator Wesley Chesbro (Democrat), of Arcata, chair of the Senate Budget and Fiscal Review Committee and the Senate Select Committee on Developmental Disabilities and Mental Health.
  • Assemblyman Mark Ridley-Thomas (Dem), of Los Angeles, a member of the Assembly Health committee and former L.A. city councilman.
  • Attorney General Bill Lockyer, of Hayward, a former State Senator and Assemblyman.
  • Darrell Steinberg (Dem), of Sacramento, an attorney, the author of Proposition 63, former Assemblyman. Steinberg is the appointee of the Superintendent of Public Instruction.

Governor’s Appointees

On 21 June 2005, then Governor Schwarzenegger announced his appointment of twelve appointees to the MHSOAC:

  • MHOAC Vice Chairman Linford Gayle (declined to state party), 46, of Pacifica, a mental health program specialist at San Mateo County Mental Health Services.
  • Karen Henry (Republican), 61, of Granite Bay, a labour attorney and a board member of California National Alliance for the Mentally Ill (NAMI). Henry is afflicted by ‘rapid cycling’ bipolar disorder, has a son who has autism, and another son with a mental illness.
  • William Kolender (Rep), 70, of San Diego, the San Diego County Sheriff and president of the State Sheriffs Association, a member of the State Board of Corrections, and was for three years the director of the California Youth Authority (CYA). Kolender’s wife died as a result of mental illness, and he has a son with a mental disorder.
  • Kelvin Lee, Ed.D. (Rep), 58, of Roseville, a superintendent of the Dry Creek Joint Elementary School District.
  • Andrew Poat (Rep), 45, of San Diego, former director of the government relations department for the City of San Diego, a member of the public policy committee for the San Diego Gay and Lesbian Centre, and a former deputy director of the United States Office of Consumer Affairs. Poat represented employers of more than 500 workers on the commission, and says he will use his experience building multimillion-dollar programs to bring together mental health advocates.
  • Darlene Prettyman (Rep), 71, of Bakersfield, is a psychiatric nurse, a board member and past president of NAMI California, and a past chairman and a member of the California Mental Health Planning Council. Her son has schizophrenia, and her stated priority is to enhance provision of housing for mental health service clients.
  • Carmen Diaz (Dem), 53, of Los Angeles, a family advocate coordinator with the L.A. County Department of Mental Health and a board member of United Advocates for Children of California. Diaz has a family member with a severe mental illness.
  • F. Jerome Doyle (Dem), 64, of Los Gatos, is chief executive officer of EMQ (a provider of mental health services for children and youth), a board member and past president of the California Council of Community Mental Health Agencies, and a board member of California Mental Health Advocates for Children.
  • Saul Feldman DPA, (Dem), 75, of San Francisco, is chairman and CEO of United Behavioural Health, a member of the American Psychological Association, the founder and former president of the American College of Mental Health Administration, and a former president and CEO of Health America Corporation of California. Feldman was appointed as a health care plan insurer.
  • Gary Jaeger, M.D. (Dem), 62, of Harbour City, is currently the chief of addiction medicine at Kaiser Foundation Hospital, South Bay, a member and former chair of the Behavioural Health Advisory Board of the California Healthcare Association, and former medical director of family recovery services at St. Joseph Hospital in Eureka. He says members of his family have an “80 percent rate of drug and alcohol abuse.”
  • Mary Hayashi (Dem), 38, of Castro Valley, president of the Iris Alliance Fund and a board member for Planned Parenthood Golden Gate and member of the Board of Registered Nursing. Hayashi’s concerns include transportation access for clients and paratransit services, and represents employers with 500 or fewer workers.
  • Patrick Henning (Dem), 32, of West Sacramento, is the legislative advocate for the California Council of Laborers. He was previously the Assistant Secretary at the Labour and Workforce Development Agency (An Agency that he helped create), deputy director for the Department of Industrial Relations and Prior to his State service Special Advisor and Congressional Liaison to President Bill Clinton. Henning is a member of the Career Technical Education Standards and Framework Advisory Group and the California Assembly Speaker’s Commission on Labour Education. He represents labour.

Current Progress

One unqualified success story from the MHSA thus far involves the implementation of Full Service Partnerships (FSPs) demonstrating the “whatever it takes” commitment to assist in individualised recovery – whether it is housing, “integrated services, flexible funding [such as for childcare], intensive case management, [or] 24 h access to care.” FSP interventions are based upon evidence from such programs as Assertive community treatment (ACT), which has effectively reduced homelessness and hospitalisations while bettering outcomes. But the FSP model looks more like that of the also-popular MHA Village in Long Beach, which is a centre that offers more comprehensive services besides those specifically mental health-related. Beyond these guiding principles, however, there has not been much consensus over unifying strategies to define and implement an FSP – resulting in varying FSP structures across counties.

Overall, though, the Petris Centre, funded by the DMH and California HealthCare Foundation to evaluate the MHSA, has reported quantifiable improvements in many areas:

  • Homelessness rates.
  • Entry rates into the criminal justice system.
  • Suffering from illness.
  • Daily functioning.
  • Education rates.
  • Employment rates.
  • General satisfaction with FSPs.

Continued Challenges

According to the UCLA Centre for Health Policy Research, the 2007 and 2009 California Health Interview Surveys (CHIS) demonstrate continued mental health needs of almost two million Californians, about half of which were unmet in 2011. In spite of steady tax revenue ($7.4 billion raised as of September 2011) earmarked for the MHSA, the unremittingly high numbers of mentally ill who lack treatment contrast starkly with the implementation of new programs like the FSPs, which may cost tens of thousands of dollars annually per person. The MHA Village programme, for example, averages around $18,000 annually per person. One of the major growing concerns regarding MHSA implementation is its unintentional but worrying tendency to create silos of care. As directed by the DMH, counties search for “unserved” mentally ill or at-risk individuals to enrol in their new programmes, while keeping existing and perhaps underserved clients in old programs that are usually underfunded, but cannot take MHSA funds. Ironically, while the MHSA was established in part to address racial/ethnic disparities in health care, it may be perpetuating the disparity in services delivery between underfunded and well-funded, new programmes.

A possible solution to this issue highlights another challenge for the MHSA: the need for more comprehensive evaluation, oversight, and advisory mechanisms. Though there is an accountability commission, the MHSOAC, its oversight and regulatory responsibilities are not well-defined. However, it is a relatively new entity, having been created by the MHSA in 2004, and has yet to fully delineate its role in the MHSA. With time, the MHSOAC will hopefully continue to develop towards its stated function. Objective and expert evaluation of the MHSA will also be necessary to achieve the kind of longstanding system-wide improvement that then becomes a model for others.