Tag: Mental Illness & Law

An Overview of Mental Health Among Female Offenders in the US

Published on by Andrew Marshall1 Comment

Introduction

People in prison are more likely than the general United States (US) population to have received a mental disorder diagnosis, and women in prison have higher rates of mental illness and mental health treatment than do men in prison. Furthermore, women in prisons are three times more likely than the general population to report poor physical and mental health. Women are the fastest growing demographic of the US prison population. As of 2019, there are about 222,500 women incarcerated in state and federal prisons in the US. Women comprise roughly 8% of all inmates in the US.

In 2011, 11% of male inmates had an overnight hospital stay due to psychiatric problems, while the proportion of women who did was roughly twice that of men. In 2010, 73% of incarcerated women and 55% of incarcerated men self-reported mental health problems. This statistic accounts for the reporting of at least one of two criteria, as a self-reported mental or emotional problem, or a reported overnight hospital stay. The most common mental health problems among incarcerated women are substance abuse/dependence, post-traumatic stress disorder, and depression. Other common disorders include schizophrenia, bipolar disorder, and dysthymia.

Refer to An Overview of Mental Illness in US Jails and Prisons.

Before Crime

Early Experiences of Victimisation

Criminality among females is intimately associated with experiences of trauma and victimisation occurring early in life. The majority of incarcerated females have experienced some kind of victimisation, defined as experiences of physical, sexual, or emotional trauma. Among female offenders 78% of have reported prior sexual or physical abuse, compared to only 30% of male offenders. Furthermore, “research consistently links histories of violence with negative mental health outcomes, such as depression, substance abuse, and intimate partner violence among incarcerated women at higher rates than those in the general female population”. Early experiences of victimisation predispose women to be more likely to suffer from certain psychiatric disorders, particularly post-traumatic stress disorder (PTSD), depression, and dysthymia. A study conducted in 2017, found that 60% of participating female inmates had been diagnosed with a mental illness.

Following PTSD and substance abuse/dependence, depression is the third most common psychiatric disorder among incarcerated women. Depression and substance abuse, too, are closely linked with experiences of victimisation or PTSD, and more so for women than for men. In fact, according to the National Comorbidity Survey, women are twice as likely as men to experience co-occurring PTSD and depression. The prevalence of depression among incarcerated females links to trends within the general population as well. A study found that of the 54% of incarcerated women diagnosed with lifetime PTSD, 63% reported experiencing three or more traumatic events. While women are more likely than men to suffer internalised problems, such as anxiety and depression, men are more likely to be treated for externalised problems such as delinquency, aggression, and substance abuse. This difference coincides with a gendered discrepancy in the experiences of mentally ill offenders once they enter the criminal justice system.

Victimisation and Criminal Offending

In both males and females, sexual abuse, physical abuse, and neglect increase the likelihood of arrest for a juvenile by 59% and as an adult by 28%. Although sociologists do not point to a single explanation for the association between victimisation, trauma, and incarceration, researchers have found that trauma frequently cause women to abuse drugs and alcohol as a coping mechanism. Sociologists also point out that early victimisation increases the likelihood of women’s continued or exacerbated involvement in harmful settings. According to one ethnography of female offenders in Boston, “In fact, running away from home—often to escape abuse in households dominated by violent men—is the charge in the first arrest for nearly a quarter of girls in the juvenile justice system… On the streets, women are vulnerable to harassment, exploitation, and drug use, all of which drag them into the correctional circuit”. In addition to symptoms of trauma, other mental health problems such as major depression, schizophrenia, and mania are linked with patterns of violent offending and homelessness prior to arrest.

Substance Abuse

Substance abuse and dependence are the most common mental health problems among incarcerated females, and drug use is the most common reason for women’s incarceration. At the end of 2018, 26% of female state prisoners were serving time for drug related offenses. This percentage is double than that of male state prisoners who are serving time for drug related charges. Seventy percent of incarcerated females suffer from drug abuse or dependence, and incarcerated females are nine times more likely than the general population to experience substance abuse and dependence. Social researchers have linked substance abuse to experiences of trauma and victimisation.

Sociologists have conducted extensive research in favour of a self-medication hypothesis in relation to women’s drug use and abuse, positing that women use drugs as a way to cope with experiences of sexual or physical trauma. Past research suggests that consequences of childhood sexual abuse increase a woman’s risk for self-medicating with alcohol and drugs. Incarcerated women with a history of substance abuse are more likely have had prior mental health and criminal justice experiences than incarcerated women with no history of drug abuse.

In The Courts

Within the US justice system, women’s criminal activity is more likely than men’s to be medicalised, in connection with a tendency to perceive female offenders as “mad, rather than bad.” Female offenders are more likely than men to receive psychiatric evaluations, even when they have not self-reported a mental illness. Sociologists have noted that gendered stereotypes among men and women contribute to this discrepancy in mental health evaluations. While criminal behaviour and aggression are more associated with masculinity, traits such as passivity and submission are more associated with feminine roles. Female offenders are more likely to be identified as having engaged in role-incongruent or deviant behaviour that is explained, diagnosed, and treated psychiatrically. Receiving a psychiatric evaluation reduces the chances that a defendant will have charges dropped against her or him, and also increases the likelihood of conviction, incarceration, and lengthier prison sentences. Because women who have engaged in crime are thought to have violated gender norms, some sociologists posit that female offenders may receive harsher sentences than men. However, among men and women in the general population, sociologists have not reached a consensus on the differences in sentencing, treatment, and leniency among males and females in general. For instance, among juveniles, males are more likely to be arrested, petitioned, and adjudicated than females. Among juvenile females who are sentenced, studies vary on whether these women receive lighter or harsher sentences. Some studies find that women are treated more leniently by courts. Other studies show that juvenile women may be sentenced more harshly than their male counterparts.

During Incarceration

Prevalence of Mental Illness

Several studies have found that rates of mental illness in prisons are higher than those in the general population and that rates of mental illness in women’s prisons are higher than those in men’s prisons. In 1999 a report for the Department of Justice estimated16% of the prison population had some form of mental disorder. However, much research in this area “lack[s] specificity regarding important subpopulations, such as female offenders.” That work which has looked at female offenders as an “important subpopulation” has found that they experience mental health problems at greater rates than their male counterparts. According to a report through the Bureau of Justice Statistics, female prisoners are about twice as likely than male prisoners to have a history of mental health problems.

A study through the Mental Health Prevalence Project which used “three major indicators of mental illness: diagnosis of a serious mental illness, history of inpatient psychiatric care, and psychotropic medication use” found that female offenders have “on average, twice the rate of various indicators as males.” The study found (using a weighted sample) that 17.8% of male offenders and 35.1% of female offenders have a mental health problem upon being committed. This study did not treat substance abuse as a mental health disorder.

Other studies report much higher rates of mental illness among prisoners. One Bureau of Justice Statistics survey in 2004 found that 55% of male inmates and 73% of female inmates self-reported a mental health problem. The Sentencing Project, in their 2007 Briefing Sheets, also report that 73.1% of women in prisons have a mental health problem. Female inmates who experience co-occurring disorders are four times more likely than other female inmates to receive severe disciplinary punishment. No significant relationship has been found between severe punishment and a singular mental health disorder or substance use disorder. Female inmates are more likely than male inmates to be diagnosed with depression, substance abuse, developmental disabilities, bipolar disorder, PTSD, and eating disorders.

Mental Health Treatment and Services

For many offenders, incarceration provides a rare opportunity to access mental health services not available to offenders within their communities. Despite the growing prison population in the US and the prevalence of mental health problems “In-prison services have not expanded sufficiently to meet treatment needs. In fact, between 1988 and 2000, prison mental health services declined, and those services that are available are concentrated only in the most secure facilities.” One study found that 41% of female inmates report use of mental health services while incarcerated, while 73% report mental health problems.

According to the Bureau of Justice Statistics “All Federal prisons and most State prisons and jail jurisdictions, as a matter of policy, provide mental health services to inmates, including screening inmates at intake for mental health problems, providing therapy or counseling by trained mental health professionals, and distributing psychotropic medication.” Researchers working with the Mental Health Prevalence Project note that “legal mandates and humanitarian concerns alone require that [mental health] services be provided. In addition, the effective, safe, and orderly management of correctional facilities require that these needs be met.”

While sociologists have recommended trauma-focused treatments for offenders, these services are still lacking. Researchers have also noted that “there is strong empirical support for gender-specific, trauma-focused treatments”. In one study, researchers offered 25 therapeutic group sessions to female inmates with mental health problems. It was found that the sessions were “successful at significantly decreasing post-traumatic stress disorder (PTSD) and substance use disorder (SUD) symptoms, with almost 50% of participants no longer meeting criteria for the disorder and 65% reporting no substance use at the 3-month follow up”. Reasons for the lack of gender-specific treatment in women’s prisons despite their proven use may be the difficulties of setting up such programmes, including navigation of “legal and logistical barriers.”

It has been found that female inmates are medicated at higher rates than their male counterparts. Women are also treated differently than men in prisons in regard to mental illness. Studies suggest “that female inmates’ behaviour is more likely than males’ to be ‘psychiatrized’ by correctional staff”. One study shows that “role incongruence” effects how female and male inmates are treated. According to the study “female inmates who perpetrated acts of violence against others and/or property, or who demonstrated aggressiveness or agitation, were significantly more likely than men exhibiting similar behaviors to be placed in mental health units”. Furthermore, the researchers found that men exhibiting “female psychiatric disorders (e.g., depression)” were more likely to receive mental health care than females exhibiting the same disorders. The study suggests that differential treatment of male and female inmates may be based on the inmates adherence to gender norms, and that a breaking of these norms is likely to be treated psychiatrically. Therapeutic or rehabilitation programmes in prisons also differ for men and women, with male prisons providing more access to programs for anger management, and female prisons providing more access to programmes addressing trauma or loss.

After Prison

In many instances, living in prison obligates individuals to adapt socially and psychologically, making it difficult to reintegrate into daily life outside of prison and to develop healthy relationships. Furthermore, due to the prevalence of chronic diseases within jails, offenders returning to low-income communities may be inadvertently contributing to health inequities in low-income areas. The difficulties facing women upon their release from prison range from “finding housing, getting a job, earning enough money to support themselves, reconnecting with children and family.” Failure to find work and a stable home may lead women back to committing crime and back to prison. The recidivism rates among prisoners is so high that it has been termed the “revolving door phenomenon.” Studies have found that among women released from prison in 1994 “58% were arrested” within three and a half years of release, and “39% were returned to prison”. A 2011 study by Pew Centre of the States find similar recidivism rates. The release and re-entry difficulties that female prisoners face are often exacerbated by mental health challenges.

The high rates of mental health problems among female offenders follows them past prison and into re-entry. A study published in 2010 by the Re-entry Planning for Offenders with Mental Disorders: Policy and Practice found that “of 357 women released from prison in six states, 44% reported they had been diagnosed with bipolar disorder, depression, obsessive compulsive disorder, post traumatic stress disorder, phobia, or schizophrenia.” A majority, 56%, of these women, felt they were currently in need of treatment. However, studies find that mental health and substance abuse treatment is not readily available to women returning to their communities from prison. Furthermore, upon release many women often have trouble keeping up with medication they had access to in prison. These mental health problems may hinder offenders as they try to find a job and housing. Their health problems may be so severe they cannot work, they face the additional job of managing their health problem and mental illness increases the likelihood of engaging in “inappropriate behavior that provokes a law enforcement response.” These challenges may increase recidivism rates. An individual’s chance of recidivism decreases if significant change occurs to their in-prison mental health.

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An Overview of Mental Illness in US Jails and Prisons

Published on by Andrew Marshall2 Comments

Introduction

Mental illness, or mentally ill people, is/are overrepresented in United States (US) jail and prison populations relative to the general population.

There are three times more seriously mentally ill persons in jails and prisons than in hospitals in the United States. Scholars discuss many different causes of this overrepresentation including the deinstitutionalization of mentally ill individuals in the mid-twentieth century; inadequate community mental health treatment resources; and the criminalisation of mental illness itself. The majority of prisons in the United States employ a psychiatrist and a psychologist. There is a general consensus that mentally ill offenders have comparable rates of recidivism to non-mentally ill offenders. Mentally ill people experience solitary confinement at disproportionate rates and are more vulnerable to its adverse psychological effects. Twenty-five states have laws addressing the emergency detention of the mentally ill within jails, and the US Supreme Court has upheld the right of inmates to mental health treatment.

Refer to An Overview of Mental Health Among Female Offenders in the US.

Prevalence

There is broad scholarly consensus that mentally ill individuals are overrepresented within the US jail and prison populations. In a 2010 study, researchers concluded that, based on statistics from sources including the Bureau of Justice Statistics and the U.S. Department of Health and Human Services, there are currently three times more seriously mentally ill persons in jails and prisons than in hospitals in the United States, with the ratio being nearly ten to one in Arizona and Nevada. “Serious mental illness” is defined here as schizophrenia, bipolar disorder or major depression. Further, they found that 16% of the jail and prison population in the US has a serious mental illness (compared to 6.4% in 1983), although this statistic does not reflect differences among individual states. For example, in North Dakota they found that a person with a serious mental illness is equally likely to be in prison or a jail versus hospital, whereas in states such as Arizona, Nevada and Texas, the imbalance is much more severe. Finally, they noted that a 1991 survey through the National Alliance for the Mentally Ill concluded that jail and/or prison is part of the life experience of 40% of these mentally ill individuals. In addition to mood and anxiety disorders, other psychopathologies have also been found in the US Prison System. Antisocial personality disorder is found in less than 6% of the general American population, but seems to be found in anywhere between 12% to 64% of prison samples. Estimates of Borderline Personality Disorder seem to make up around 1% to 2% in the general public vs 12% to 30% within prisons. Personality disorders, especially of the inmate population, are often found to be comorbid with other disorders.

A separate research study “The Prevalence of Mental Illness among Inmates in a Rural State” noted that national statistics like those previously mentioned primarily pull data from urban jails and prisons. In order to investigate possible differences in rural areas, researchers interviewed a random sample of inmates in both jails and prisons in a rural northeastern state. They found that in this rural setting, there was little evidence of high rates of mental illness within jails, “suggesting the criminalization of mental illness may not be as evident in rural settings as urban areas.” However, high rates of serious mental illness were found among the rural prison inmates.

A 2017 report issued by the Bureau of Justice Statistics used self-report survey data from inmates to assess the prevalence of mental health problems among prisoners and jail inmates. They found that 14% of prisoners and 25% of jail inmates had past 30-day serious psychological distress, compared to 5% of the general population. In addition, 37% of prisoners and 44% of jail inmates had a history of a mental health problem.

In 2015 lawyer and activist Bryan Stevenson claimed in his book Just Mercy that over fifty percent of inmates in jails and prisons in the United States had been diagnosed with a mental illness and that one in five jail inmates (around 20%) had a serious mental illness. As for the gender, age, and racial demographics of mentally ill offenders, the 2017 Bureau of Justice Statistics report found that female inmates, when compared to male inmates, had statistically significant higher rates of serious psychological distress (20.5% of female prisoners and 32.3% of female jail inmates had serious psychological distress, versus 14% of male prisoners and 25.5% of male jail inmates) and a history of a mental health problem (65.8% of female prisoners and 67.9% of female jail inmates compared to 34.8% of male prisoners and 40.8% of male jail inmates). Significant differences between race and ethnicity were also observed. White prisoners and jail inmates were more likely than black or Hispanic inmates to have serious psychological distress or a history of mental health problems. For example, in local jails, 31% of white inmates compared to 22.3% of black inmates and 23.2% of Hispanic inmates had serious psychological distress. Finally, with regards to age, there were virtually no statistical differences between age groups and the percentage who has serious psychological distress or a history of a mental health problem.

Potential Reasons for the High Humber of Incarcerated People Diagnosed with Mental Illnesses

Deinstitutionalisation

Researchers commonly cite deinstitutionalisation, or the emptying of state mental hospitals in the mid-twentieth century, as a direct cause of the rise of mentally ill people in prisons. In the 2010 study “More mentally ill persons are in jails and prisons than hospitals: a survey of the states,” researchers noted, at least in part due to deinstitutionalization, it is increasingly difficult to find beds for mentally ill people who need hospitalisation. Using data collected by the Department of Health and Human Services, they determined there was one psychiatric bed for every 3,000 Americans, compared to one for every 300 Americans in 1955. They also noted increased percentages of mentally ill people in prisons throughout the 1970s and 1980s and found a strong correlation between the amount of mentally ill persons in a state’s jails and prisons and how much money that state spends on mental health services. In the book Criminalising the Seriously Mentally Ill: The Abuse of Jails As Mental Hospitals, researchers note that while deinstitutionalisation was carried out with good intentions, it was not accompanied with alternate avenues for mental health treatment for those with serious mental illnesses. According to the authors, Community Mental Health Centres focused their limited resources on individuals with less serious mental illnesses, federal training funds for mental health professionals resulted in lots more psychiatrists in wealthy areas but not in low-income areas, and a policy that made individuals eligible for federal programmes and benefits only after they’d been discharged from state mental hospitals unintentionally incentivised discharging patients without follow-up.

In the article “Assessing the Contribution of the Deinstitutionalization of the Mentally Ill to Growth in the U.S. Incarceration Rate” researchers Steven Raphael and Michael A. Stoll discuss transinstitutionalisation, or how many patients released from mental hospitals in the mid-twentieth century ended up in jail or prison. Using US census data collected between 1950 and 2000, they concluded that “those most likely to be incarcerated as of the 2000 census experienced pronounced increases in overall institutionalisation between 1950 and 2000 (with particularly large increases for black males). Thus, the impression created by aggregate trends is somewhat misleading, as the 1950 demographic composition of the mental hospital population differs considerably from the 2000 demographic composition of prison and jail inmates.” However, when estimating (using a panel data set) how many individuals incarcerated between 1980 and 2000 would have been institutionalised in years past, they found significant transinstitutionalisation rates for all men and women, with the largest rate for white men.

Accessibility

A main contributing factor as to why the US is seeing a steady increase in those who are mentally ill within the prison system, can be due to the lack of accessibility in various communities. Specifically, those who come from a lower income background face these issues, in which there are little to no resources being offered that are readily available for those experiencing ongoing difficulty with their mental health. The AMA Journal of Ethics discusses more specific factors as to why there are consistent high arrest rates of those with severe mental illness within communities, stating that the arrests of drug offenders, lack of affordable housing, as well as significant lack of funding for community treatments are main contributors. With the introduction of Medicaid, many state run mental health facilities closed due to a shared responsibility of funding with the federal government. Eventually, states would entirely close a good portion of their facilities, so that mentally ill patients were being treated at hospitals where they would partially be covered by Medicaid and the government. The National Council for Behavioural Health conducted a study in October 2018, which included survey results that confirmed:

“nearly six in 10 (56%) Americans [are] seeking or wanting to seek mental health services either for themselves or for a loved one…These individuals are skewing younger and are more likely to be of lower income and military background”.

Criminalisation

A related cause of the disproportionate amount of mentally ill people in prisons is criminalization of mental illness itself. In the 1984 study “Criminalizing mental disorder: The comparative arrest rate of the mentally ill”, researcher L.A. Teplin notes that in addition to a decline in federal support for mental illness resulting in more people being denied treatment, mentally ill people are often stereotyped as dangerous, making fear a factor in action taken against them. Bureaucratic and legal impediments to initiating mental health referrals means arrest can be easier, and in Teplin’s words, “Due to the lack of exclusionary criteria, the criminal justice system may have become the institution that cannot say no.” Mentally ill people do indeed experience higher arrest rates than those without mental illness, but in order to investigate whether or not this was due to criminalization of mental illness, researchers observed police officers over a period of time. As a result, they concluded, “within similar types of situations, persons exhibiting signs of mental disorder have a higher probability of being arrested than those who do not show such signs.”

The authors of the book Criminalising the Seriously Mentally Ill: The Abuse of Jails As Mental Hospitals claim that nationwide, 29% of jails will hold mentally ill individuals with no charges brought against them, sometimes as a means of ‘holding’ them when psychiatric hospitals are very far away. This practice occurs even in states where it is explicitly forbidden. Beyond that, according to the authors, the vast majority of people with mental illnesses in jails in prisons are held on minor charges like theft, disorderly conduct, alcohol/drug related charges, and trespassing. These are sometimes “mercy bookings” intended to get the homeless mentally ill off the street, a warm meal, etc. Family members have reported being encouraged by mental health professionals or police to get their loved ones arrested as a means of getting them treatment. Finally, some mentally ill people are in jails and prisons on serious charges, such as murder. The authors of Criminalising the Seriously Mentally Ill claim many such crimes wouldn’t have been committed if the individuals had been receiving proper care.

Malingering

Some inmates feign psychiatric symptoms for secondary gain. For example, an inmate may hope to receive a transfer to a more desirable setting or receive psychotropic medication.

Exacerbation of Mental Illness in a Prison Setting

Another proposed reason for the high number of incarcerated with mental illness is the way how a prison setting can worsen mental health. Individuals with pre-existing mental health conditions can worsen, or new mental health problems may arise. A few reasons are listed as to how prisons can worsen the mental health of the incarcerated:

  • Separation from loved ones;
  • Lack of movement/isolation;
  • Overcrowded prisons; and/or
  • Witnessing violence in the prison setting.

Mental Health Care in Prisons and Jails

Psychologists report that one in every eight prisoners were receiving some mental health therapy or counselling services by the middle of the year in 2000. Inmates are generally screened at admission and depending on the severity of the mental illness they are placed in either general confinement or specialised facilities. Inmates can self report mental illness if they feel it is necessary. In the middle of the year in 2000, inmates self-reported that State prisons held 191,000 mentally ill inmates. A 2011 survey of 230 correctional mental health service providers from 165 state correctional facilities found that 83% of facilities employed at least one psychologist and 81% employed at least one psychiatrist. The study also found that 52% of mentally ill offenders voluntarily received mental health services, 24% were referred by staff, and 11% were mandated by a court to receive services. Although 64% of providers of mental health services reported feeling supported by prison administration and 71% were involved in continuity of care after release from prison, 65% reported being dissatisfied with funding. Only 16% of participants reported offering vocational training, and the researchers noted that although risk/need/responsivity theory has been shown to reduce the risk for recidivism (or committing another crime after being released), it is unknown whether it is incorporated into mental health services in prisons and jails. A 2005 article by researcher Terry A. Kupers noted that male prisoners tend to underreport emotional problems and don’t request help until a crisis, and that prison fosters an environment of toxic masculinity, which increases resistance to psychotherapy. A 2017 report from the Bureau of Justice Statistics noted that 54.3% of prisoners and 35% of jail inmates who had past 30-day serious psychological distress has received mental health treatment since admission to the current facility; and 63% of prisoners and 44.5% of jail inmates with a history of a mental health problem said they had received mental health treatment since admission.

Finally, the book Criminalising the Seriously Mentally Ill: The Abuse of Jails As Mental Hospitals points out that 20% of jails have no mental health resources. In addition, small jails are less likely to have access to mental health resources and are more likely to hold individuals with mental illnesses without charges brought against them. Jails in richer areas are more likely to have access to mental health resources, and jails with more access to mental health resources also dealt less with medication refusal.

Recidivism

Research shows that rates of recidivism, or re-entry into prison, are not significantly higher for mentally ill offenders. A 2004 study found that although 77% of mentally ill offenders studied were arrested or charged with a new crime within the 27-55 month follow-up period, when compared with the general population, “our mentally ill inmates were neither more likely nor more serious recidivists than general population inmates.” In contrast, a 2009 study that examined the incarceration history of those in Texas Department of Criminal Justice facilities found that “Texas prison inmates with major psychiatric disorders were far more likely to have had previous incarcerations compared with inmates without a serious mental illness.” In the discussion, the researchers noted that their study’s results differed from most research on this subject, and hypothesized that this novelty could be due to specific conditions within the state of Texas.

A 1991 study by L. Feder noted that although mentally ill offenders were significantly less like to receive support from family and friends upon release from prison, mentally ill offenders were actually less likely to be revoked on parole. However, for nuisance arrests, mentally ill offenders were less likely to have the charges dropped, although they were more likely to have charges dropped for drug arrests. In both cases, mentally ill offenders were more likely to be tracked into mental health. Finally, there were no significant differences in charges for violent arrests.

Tools for Effective Mental Healthcare

A research paper published in 2020 by M. Georgiou remarked that having a well defined consultation process of mental health services will allow for effective care. This is called the Care Programme Approach. It lists six steps to effective care of the prisoner:

  • Identify the health and need of care of the prisoner.
  • Written and clear plans.
  • Having key persons in supervision of the program.
  • Regular assessments of the program.
  • Interprofessional involvement.
  • Career involvement.

Solitary Confinement

A broad range of scholarly research maintains that mentally ill offenders are disproportionately represented in solitary confinement and are more vulnerable to the adverse psychological effects of solitary confinement. Due to differing schemes of classification, empirical data on the makeup of inmates in segregated housing units can be difficult to obtain, and estimates of the percentage of inmates in solitary confinement who are mentally ill range from nearly a third, to 11% (with a “major mental disorder”), to 30% (from a study conducted in Washington), to “over half” (from a study conducted in Indiana), depending on how mental illness is determined, where the study is conducted, and other differences in methodology. Researchers J. Metzner and J. Fellner note that mentally ill offenders in solitary confinement “all too frequently” require crisis care or psychiatric hospitalisation, and that “many simply won’t get better as long as they are isolated.” Researchers T. L. Hafemeister and J. George note that mentally ill offenders in isolation are at higher risk for psychiatric injury, self-harm and suicide. A 2014 study that analysed data from medical records in the New York City jail system found that while self-harm was significantly correlated with having a serious mental illness regardless of whether or not an inmate was in solitary confinement, inmates with serious mental illness in solitary confinement under 18 years of age accounted for the majority of acts of self-harm studied. When brought before federal courts, judges have prohibited or curtailed this practice, and many organisations that deal with human rights, including the United Nations, have condemned it.

In addition, scholars argue the conditions of solitary confinement make it much more difficult to deliver proper psychiatric care. According to researchers J. Metzner and J. Fellner, “Mental health services in segregation units are typically limited to psychotropic medication, a health care clinician stopping at the cell front to ask how the prisoner is doing (i.e. mental health rounds), and occasional meetings in private with a clinician.” One study in the American Journal of Public Health claimed that health care professionals must “frequently” conduct consultation through a slit in a cell door or an open tier that provides no privacy.

However, some researchers disagree with the scope of claims surrounding the psychological effects of solitary confinement. For example, in 2006 researchers G.D. Glancy and E. L. Murray conducted a literature review in which they claimed that many frequently-cited studies have methodological concerns, including researcher bias, the use of volunteer non-prisoners, naturalistic experiments, or case reports, case series, and anecdotes” and concluded “there is little evidence to suggest the majority…kept in SC…experience negative mental health effects.” However, they did support claims that inmates with pre-existing mental illnesses are more vulnerable and do suffer adverse effects. In their conclusion they claim “we should therefore be concerned about those with pre-existing mental illness who are housed in segregation because there is nowhere else to put them within the correctional system.”

Community Standpoint and Outcome

Social stigma regarding this issue is significant due to the public’s outlook and perception of mental health, where some may not recognise it as a health factor that needs to be addressed. It is for this reason that some may avoid or deny the assistance being offered to them, thus further suppressing feelings and experiences that eventually need to be dealt with. The NCBH notes that about one-third of Americans, or 38%, state that they worry of their peers and family members judging them if they were to seek mental help.

Without the presence of these facilities within communities, there is an outcome of mentally ill individuals carrying on with no preventative treatment or care to keep the severity of their condition to a healthy level. Just about 2 million of these individuals go to jail each year, moreover, data shows that 15% of men and 30% of women who are taken to prison, do in fact have a serious mental health condition. The National Alliance on Mental Illness further looks into the results of decreased mental health services, and they found that for many, individuals do ultimately become homeless, or they find themselves in emergency rooms, as a result of inaccessibility to mental services and support groups. Statistics show that about 83% of jail inmates did not have access to needed treatment, prior to their incarceration, within their community which is why some may be rearrested for crimes as a way to return to some form of assistance. The Marshall Project has gathered data regarding those being treated in jail, and what they found was that the Federal Bureau of Prisons implicated a new policy to be initiated that was meant to improve the care for inmates with mental-health issues. It ultimately led to decreasing the number of inmates who were categorized as needing higher care levels by more than 35%. After this policy change, the Marshall Project noted the steady decline since May 2014 of inmates receiving treatment for a mental illness. Research shows that within recent years, those with “serious psychotic disorders, especially when untreated, can be more likely to commit a violent crime”.

It is said that an institutional shift would be more effective in reducing the number of incarcerated through the collaboration of multiple agencies, especially when it comes to the criminal justice system and the community. This collaboration between agencies deviates from the “self-perpetuating” system meant to incarcerate and process individuals in an administrative manner; therefore, it focuses closely on people with severe mental illness, and ensure ongoing care within and out of prison to reduce recidivism.

Legal Aspects

Current Laws

The Federal Bureau of Prisons have claimed to have made policy changes, but those changes only apply to the rules within the system, and they did not fund resources to carry those new implementations out. It should also be noted that within the prison system, states have laws and responsibilities to ensure as well, one being within the Eighth amendment that requires prisoners’ medical needs to consistently be met. The Prison Litigation Reform Act upholds this right in federal court cases.

As of late December 2018, the First Step Act (S 756) was signed into law as a way to a way to reduce recidivism and provide overall improvements to the conditions faced within federal prisons, as well as working to reduce the mandatory sentences given. Although, this Act primarily applies to about 225.000, or 10%, of individuals in federal prisons and jails, whereas this reform may not be applied to those in state prisons and jails. Some of the provisions that result from this act include staff training as to how to identify and assist those suffering from a mental illness, and providing improved, accessible treatment regarding drug abuse with programs like medication-assisted treatment.

The implementation of significantly more Certified Community Behavioural Health Clinics has been discussed as a solution to the issue of mental health in the prison system as well. Its primary goal is to cater to the needs of its specific communities and expand access to mental health treatment for everyone. The claims of an organisation like this is to reduce criminal justice costs, as well as hospital readmissions, and, once again, to reduce recidivism. They strive to treat individuals with mental illness early on, rather than allowing them to carry on without professional care and general support.

Emergency Detention

One major area of legal concern is the emergency detention of the non-criminal mentally ill in jails while waiting for formal procedures for involuntary hospitalisation. Twenty-five states and the District of Columbia have laws that specifically address this practice; eight of these states, as well as D.C., explicitly forbid it. Seventeen states, on the other hand, explicitly allow it. Within this set, the criteria and circumstances necessary differ by state, and most states limit the detention periods in jails to one to three days. One distinguishing factor of this practice is that it is often initiated by a non-medical professional such as a police officer. In many states, especially those in which a non-public official such as a medical health professional or concerned citizen can initiate the detention, a judge or magistrate is required to approve it before or soon after the initiation.

When emergency detention in jails has been brought to court, judges have generally agreed that the practice itself is not unconstitutional. One notable exception was Lynch v. Baxley; however, later cases, particularly Boston v. Lafayette County, Mississippi, have connected the ruling of unconstitutionality in that case with the conditions of the jails themselves rather than the fact that they were jails. That being said, the Supreme Court of Illinois has stated that this practice is unconstitutional if the person being detained does not pose an imminent threat to himself or others.

Supreme Court Cases

Several landmark Supreme Court cases, notably Estelle v. Gamble, have established the constitutional right of prison inmates to mental health treatment. Estelle v. Gamble determined that “deliberate indifference to serious medical needs” of prisoners was a violation of the Eighth Amendment to the US Constitution. This case was the first time the phrase “deliberate indifference” was used; it is now a legal term. In order to determine “serious medical need” later cases would use tests such as the treatment being mandated by a physician or an obvious need to a layman. On the other hand, other cases, notably McGukin v. Smith, used much stricter terms, and in 1993 researchers Henry J. Steadman and Joseph J. Cocozza commented that “serious medical need” had little definitional clarity. Langley v. Coughlin involved a prisoner “regularly isolated without proper screening or care” and clarified that a single, distinctive act is not necessary to constitute deliberate indifference but rather “if seriously ill inmates are consistently made to wait for care while their condition deteriorates, or if diagnoses are haphazard and records minimally adequate then, over time, the mental state of deliberate indifference may be attributed to those in charge.”

The landmark case Washington v. Harper determined that although inmates do have an interest in and the right to refusal of treatment, this can be overridden without judicial process even if the inmate is competent provided there this act is “reasonably related to legitimate penological interest”. Washington’s internal process for determining this need was seen as affording due process. In contrast, in Breads v. Moehrle, the forcible injection of drugs in a jail was not upheld because sufficient procedures were not taken to ensure “substantive determination of need”.

Court Cases

George Daniel, a mentally ill man on Alabama’s death row was arrested and charged with capital murder. In jail, George became acutely psychotic and could not speak in complete sentences. Daniel, had been on death row until several years later, Lawyer Bryan Stevenson uncovered the truth of the doctor who lied about the examination of Daniels mental illness. Daniel’s trial was then overturned and he has been in a mental institution since. Another mentally ill man, Avery Jenkins, was convicted of murder and sentenced to death. Throughout Jenkins’s childhood, he had been in and out of foster homes and developed a serious mental illness. Jenkins erratic behaviour did not change, so his foster mother decided to get rid of him by tying him to a tree and left him there. Around the age of sixteen he was left homeless and started to experience psychotic episodes. At the age of twenty, Jenkins had wandered into a strange house and stabbed a man to death as he perceived it to being a demon. He then was sentenced to death and spent several years in prison as if he had been sane and responsible for his actions. Jenkins then got off death row and was put into a mental institution.

In the past, overall living and treatment conditions within US prisons were not up to par, which can be seen through the details and points made by the Coleman v. Brown case that went to trial in 1995. The district court judge in another case, ultimately recognised the systemic failure within the system to properly care for and provide resources to mentally ill inmates. These individuals were not receiving treatment prior to prison, and were sent there with expectations from others that they would be receiving treatment there, but that expectation was not fulfilled.

With Coleman v. Brown, a special court, including three judges that can make final decisions on whether or not a problem is significant enough to enact change, came to the conclusion that overcrowding was in fact a reason for poor conditions in prisons, therefore they called for a reduction in the prison population to partially relieve said issue. Justice Alito at this time questioned whether the solution of reduction was actually helpful, when they could be looking into constructing additional prison medical and mental health facilities. Although, the decision did not take care of the living conditions that were problematic before and even after the case. It has been noted that psychotic prisoners were often held in small, narrow essentially restricted areas in which standing on their own secretions was common. As far as actual mental health treatment conditions, the waiting time to even receive care could take up to a year, and when they finally reached that date, the screenings for such lacked privacy for those being evaluated as the spaces were often shared by several physicians at a time. Other case that has been discussed, is John Rudd , who was being a federal prison in West Virginia as of 2017. Rudd had a history of mental health disorders consisting of posttraumatic stress disorder, as well as schizophrenia. He was evaluated and diagnosed by a doctor as early as 1992. In 2017, he stopped taking his psychiatric medication, then proceeded to inform staff of his intentions to take his own life. Staff proceeded to put him in a suicide watch cell, where he would physically and violently hurt himself. Staff injected him with haloperidol, an anti-psychotic drug, to treat him, but after some time they concluded that Rudd was not ill enough to receive proper, regular treatment and continued to categorize him as a level one inmate, meaning no significant mental health needs. Although they were aware of his pre-existing conditions, the prison staff claimed those were resolved and simply adjusted it to Rudd having an antisocial personality disorder.

On 07 December 2020, Thomas Lee Rutledge died of hyperthermia at the home of William E. Donaldson in Bessemer. According to a lawsuit filed by his sister, Rutledge had a core temperature of 109 degrees when he was found unconscious in his psychiatric cell.

A more recent case is that a mentally ill man froze to death at an Alabama jail as of 2023, according to a lawsuit filed by the man’s family who say he was kept naked in a concrete cell and believe he was also placed in a freezer or other frigid environment. Anthony Don Mitchell, 33, arrived at the hospital’s emergency room with a body temperature of 72 degrees (22 degrees Fahrenheit) and was pronounced dead hours later, according to the lawsuit. He was rushed to the hospital on January 26 from the Walker County Jail, where he had been held for two weeks. The paramedic who tried unsuccessfully to resuscitate Mitchell writes, “I believe hypothermia was the ultimate cause of death,” according to a lawsuit filed by Mitchell’s mother in federal court Monday. Mitchell, who had a history of substance abuse, was arrested on January 1st.12 after a cousin asked authorities to check on his well-being for wandering through portals to heaven and hell at his home and apparently suffering a nervous breakdown. According to the lawsuit, prison video shows Mitchell being held naked in a solitary cell with a concrete floor. The lawsuit speculates that Mitchell was also taken to the prison kitchen “freezer” or similar freezing environment and left there for hours “because his body temperature was so low.”

Prison staff in general, have also been experiencing issues for various years now. Previously in the 1990s, just about one-third of positions went unfilled for mental health staff, and it became increasingly impactful on inmates when the vacancy rates for psychiatrists reached 50% and up. Staffing shortage is still seen today in which some counsellors can be pulled and asked to serve as a corrections officers for the time being. This situation had worsened due to the Trump administration and the hiring freeze that was meant to reduce costs. Rudd, now out of prison and receiving counselling and taking medication, speaks on triggers within the prison environment that are not in any way healthy for those who are mentally ill.

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

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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.

What is the Bazelon Centre for Mental Health Law?

Published on by Andrew Marshall4 Comments

Introduction

The Bazelon Centre for Mental Health Law is a national legal-advocacy organisation representing people with mental disabilities in the US (Washington, D.C.).

Originally known as The Mental Health Law Project, the Centre was founded as a national public-interest organization in 1972 by a group of specialised attorneys and mental disability professionals who were working to help the court define a constitutional right to treatment in terms of specific standards for services and protections.

In 1993, the organisation changed its name to the Judge David L. Bazelon Centre for Mental Health Law to honour the legacy of Judge David L. Bazelon, whose decisions as Chief Judge of the United States Court of Appeals for the District of Columbia Circuit had pioneered the field of mental health law.

Refer to the Treatment Advocacy Centre.

Litigation

The Centre’s precedent-setting litigation has established important civil rights for people with mental illnesses or developmental disabilities. These include the right to treatment in Wyatt v. Stickney (decided in 1971 and successfully concluded in 1999), and the Supreme Court’s 1999 Olmstead v. L.C. ex rel. Zimring decision affirming the right of people with disabilities to receive public services in the most integrated setting consistent with their needs.

Federal Policy

The Centre also engages in federal policy advocacy, working with Congress and the administrative agencies to ensure, for example, that people with mental disabilities are included under the protections of the Americans with Disabilities Act and amendments to the federal Fair Housing Act, and to generate resources such as Supplemental Security Income and Medicaid that can enable them to live and thrive in the community. In 2009, a major thrust was the integration of mental health in healthcare reform.

Publications

The Bazelon Centre’s publications include reports; issue papers; law, regulation, and policy analyses; advocacy manuals; and consumer-friendly guides to legal rights. These are available for free download from the centre’s website, or print copies may be ordered by postal mail, telephone, or email.

Funding

During the 2015 fiscal year, most of the Bazelon Centre’s revenue came from contributions, gifts, and grants. Notable organisations providing grant support to the Bazelon Centre include the Open Society Foundations and the MacArthur Foundation. Beginning in 1978, the MacArthur Foundation has awarded multiple grants to the Bazelon Centre, totalling $14,035,000 as of 2016.

What is Forensic Psychiatry?

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Introduction

Forensic psychiatry is a subspeciality of psychiatry and is related to criminology. It encompasses the interface between law and psychiatry.

According to the American Academy of Psychiatry and the Law, it is defined as “a subspecialty of psychiatry in which scientific and clinical expertise is applied in legal contexts involving civil, criminal, correctional, regulatory, or legislative matters, and in specialized clinical consultations in areas such as risk assessment or employment.”

A forensic psychiatrist provides services – such as determination of competency to stand trial – to a court of law to facilitate the adjudicative process and provide treatment, such as medications and psychotherapy, to criminals.

Court Work

Forensic psychiatrists work with courts in evaluating an individual’s competency to stand trial, defences based on mental disorders (e.g. the insanity defence), and sentencing recommendations. The two major areas of criminal evaluations in forensic psychiatry are competency to stand trial (CST) and mental state at the time of the offense (MSO).

Competency to Stand Trial

Competency to stand trial (CST) is the competency evaluation to determine that defendants have the mental capacity to understand the charges and assist their attorneys. In the United States, this is seated in the Fifth Amendment to the United States Constitution, which ensures the right to be present at one’s trial, to face one’s accusers, and to have help from an attorney. CST, sometimes referred to as adjudicative competency, serves three purposes: “preserving the dignity of the criminal process, reducing the risk of erroneous convictions, and protecting defendants’ decision-making autonomy”.

In 1960, the Supreme Court of the United States in Dusky v. United States established the standard for federal courts, ruling that “the test must be whether the defendant has sufficient present ability to consult with his attorney with a reasonable degree of rational understanding and a rational as well as factual understanding of proceedings against him.” The evaluations must assess a defendant’s ability to assist their legal counsel, meaning that they understand the legal charges against them, the implications of being a defendant, and the adversarial nature of the proceedings, including the roles played by defence counsel, prosecutors, judges, and the jury. They must be able to communicate relevant information to their attorney, and understand information provided by their attorney. Finally, they must be competent to make important decisions, such as whether or not to accept a plea agreement.

In England, Wales, Scotland, and Ireland, a similar legal concept is that of “fitness to plead”.

As an Expert Witness

Forensic psychiatrists are often called to be expert witnesses in both criminal and civil proceedings. Expert witnesses give their opinions about a specific issue. Often, the psychiatrist will have prepared a detailed report before testifying. The primary duty of the expert witness is to provide an independent opinion to the court. An expert is allowed to testify in court with respect to matters of opinion only when the matters in question are not ordinarily understandable to the finders of fact, be they judge or jury. As such, prominent leaders in the field of forensic psychiatry, from Thomas Gutheil (2009) to Robert Simon and Liza Gold (2010) and Sadoff (2011) have identified teaching as a critical dimension in the role of expert witness. The expert will be asked to form an opinion and to testify about that opinion, but in so doing will explain the basis for that opinion, which will include important concepts, approaches, and methods used in psychiatry.

Mental State Opinion

Mental state opinion (MSO) gives the court an opinion, and only an opinion, as to whether a defendant was able to understand what he/she was doing at the time of the crime. This is worded differently in many states, and has been rejected altogether in some, but in every setting, the intent to do a criminal act and the understanding of the criminal nature of the act bear on the final disposition of the case. Much of forensic psychiatry is guided by significant court rulings or laws that bear on this area which include these three standards:

  • M’Naghten rules: Excuses a defendant who, by virtue of a defect of reason or disease of the mind, does not know the nature and quality of the act, or, if he or she does, does not know that the act is indeed wrong.
  • Durham rule: Excuses a defendant whose conduct is the product of mental disorder.
  • ALI test: Excuses a defendant who, because of a mental disease or defect, lacks substantial capacity to appreciate the criminality (wrongfulness) of his or her conduct or to conform his conduct to the requirements of law.

“Not guilty by reason of insanity” (NGRI) is one potential outcome in this type of trial. Importantly, insanity is a legal and not a medical term. Often, psychiatrists may be testifying for both the defence and the prosecution.

Forensic psychiatrists are also involved in the care of prisoners, both in jails and prisons, and in the care of the mentally ill who have committed criminal acts (such as those who have been found not guilty by reason of insanity).

Risk Management

Many past offenders against other people, and suspected or potential future offenders with mental health problems or an intellectual or developmental disability, are supervised in the community by forensic psychiatric teams made up of a variety of professionals, including psychiatrists, psychologists, nurses, and care workers. These teams have dual responsibilities: to promote both the welfare of their clients and the safety of the public. The aim is not so much to predict as to prevent violence, by means of risk management.

Risk assessment and management is a growth area in the forensic field, with much Canadian academic work being done in Ontario and British Columbia. This began with the attempt to predict the likelihood of a particular kind of offense being repeated, by combining “static” indicators from personal history and offense details in actuarial instruments such as the RRASOR and Static-99, which were shown to be more accurate than unaided professional judgment. More recently, use is being made also of “dynamic” risk factors, such as attitudes, impulsivity, mental state, family and social circumstances, substance use, and the availability and acceptance of support, to make a “structured professional judgment.” The aim of this is to move away from prediction to prevention, by identifying and then managing risk factors. This may entail monitoring, treatment, rehabilitation, supervision, and victim safety planning and depends on the availability of funding and legal powers. These schemes may be based on published assessments such as the HCR-20 (which incorporates 10 Historical, 5 Clinical and 5 Risk Management factors) and the risk of sexual violence protocol from Simon Fraser University, BC.

United Kingdom

In the UK, most forensic psychiatrists work for the National Health Service, in specialist secure units caring for mentally ill offenders (as well as people whose behaviour has made them impossible to manage in other hospitals). These can be either medium secure units (of which there are many throughout the country) or high secure hospitals (also known as special hospitals), of which three are in England and one in Scotland (the State Hospital, Carstairs), the best known of which is Broadmoor Hospital. The other ‘specials’ are Ashworth hospital in Maghull, Liverpool, and Rampton hospital in Nottinghamshire. Also, a number of private-sector medium secure units sell their beds exclusively to the NHS, as not enough secure beds are available in the NHS system.

Forensic psychiatrists often also do prison inreach work, in which they go into prisons and assess and treat people suspected of having mental disorders; much of the day-to-day work of these psychiatrists comprises care of very seriously mentally ill patients, especially those suffering from schizophrenia. Some units also treat people with severe personality disorder or learning disabilities. The areas of assessment for courts are also somewhat different in Britain, because of differing mental health law. Fitness to plead and mental state at the time of the offence are indeed issues given consideration, but the mental state at the time of trial is also a major issue, and this assessment most commonly leads to the use of mental health legislation to detain people in hospitals, as opposed to their getting a prison sentence.

Learning-disabled offenders who are a continuing risk to others may be detained in learning-disability hospitals (or specialised community-based units with a similar regimen, as the hospitals have mostly been closed). This includes those who commit serious crimes of violence, including sexual violence, and fire-setting. They would be cared for by learning disability psychiatrists and registered learning disability nurses. Some psychiatrists doing this work have dual training in learning disability and forensic psychiatry or learning disability and adolescent psychiatry. Some nurses would have training in mental health, also.

Court work (medicolegal work) is generally undertaken as private work by psychiatrists (most often forensic psychiatrists), as well as forensic and clinical psychologists, who usually also work within the NHS. This work is generally funded by the Legal Services Commission (used to be called Legal Aid).

Canada

Criminal Law Framework

In Canada, certain credentialed medical practitioners may, at their discretion, make state-sanctioned investigations into and diagnosis of mental illness. Appropriate use of the DSM-IV-TR is discussed in its section entitled “Use of the DSM-IV-TR in Forensic Settings”.

Concerns have been expressed that the Canadian criminal justice system discriminates based on DSM IV diagnosis within the context of Part XX of the Criminal Code. This part sets out provisions for, among other things, court ordered attempts at “treatment” before individuals receive a trial as described in section 672.58 of the Criminal Code. Also provided for are court ordered “psychiatric assessments”. Critics have also expressed concerns that use of the DSM-IV-TR may conflict with section 2(b) of the Canadian Charter of Rights and Freedoms, which guarantees the fundamental freedom of “thought, belief, opinion, and expression”.

Confidentiality

The position of the Canadian Psychiatric Association holds, “in recent years, serious incursions have been made by governments, powerful commercial interests, law enforcement agencies, and the courts on the rights of persons to their privacy.” It goes on to state, “breaches or potential breaches of confidentiality in the context of therapy seriously jeopardize the quality of the information communicated between patient and psychiatrist and also compromise the mutual trust and confidence necessary for effective therapy to occur.”

An outline of the forensic psychiatric process as it occurs in the province of Ontario is presented in the publication The Forensic Mental Health System In Ontario: An Information Guide published by the Centre for Addiction and Mental Health in Toronto. The Guide states: “Whatever you tell a forensic psychiatrist and the other professionals assessing you is not confidential.” The Guide further states: “The forensic psychiatrist will report to the court using any available information, such as: police and hospital records, information given by your friends, family or co-workers, observations of you in the hospital.” Also according to the Guide: “You have the right to refuse to take part in some or all of the assessment. Sometimes your friends or family members will be asked for information about you. They have the right to refuse to answer questions, too.”

Of note, the emphasis in the guide is on the right to refuse participation. This may seem unusual given that a result of a verdict of “Not Criminally Responsible by reason of Mental Disorder” is often portrayed as desirable to the defence, similar to the insanity defence in the United States. A verdict of “Not Criminally Responsible” is referred to as a “defence” by the Criminal Code. However, the issue of the accused’s mental state can also be raised by the Crown or by the court itself, rather than solely by the defence counsel, differentiating it from many other legal defences.

Treatment/Assessment Conflict

In Ontario, a court-ordered inpatient forensic assessment for criminal responsibility typically involves both treatment and assessment being performed with the accused in the custody of a single multidisciplinary team over a 30- or 60-day period. Concerns have been expressed that an accused may feel compelled on ethical, medical, or legal grounds to divulge information, medical, or otherwise, to assessors in an attempt to allow for and ensure safe and appropriate treatment during that period of custody.

Some Internet references address treatment/assessment conflict as it relates to various justice systems, particularly civil litigation in other jurisdictions. The American Academy Of Psychiatry and the Law states in its ethics guidelines, “when a treatment relationship exists, such as in correctional settings, the usual physician-patient duties apply”, which may be seen as contradiction.

South Africa

In South Africa, patients are referred for observation for a period of 30 days by the courts if questions exist as to CST and MSO. Serious crimes require a panel, which may include two or more psychiatrists. Should the courts find the defendant not criminally responsible, the defendant may become a state patient and be admitted in a forensic psychiatric hospital. They are referred to receive treatment for an indefinite period, but most were back in the community after three years.

Training Standards

Some practitioners of forensic psychiatry have taken extra training in that specific area. In the United States, one-year fellowships are offered in this field to psychiatrists who have completed their general psychiatry training. Such psychiatrists may then be eligible to sit for a board certification examination in forensic psychiatry. In Britain, one is required to complete a three-year subspeciality training in forensic psychiatry, after completing one’s general psychiatry training, before receiving a Certificate of Completion of Training as a forensic psychiatrist. In some countries, general psychiatrists can practice forensic psychiatry, as well. However, other countries, such as Japan, require a specific certification from the government to do this type of work.

References

Gutheil, T.G. (2009) The Psychiatrist as Expert Witness. 2nd Ed. Washington: American Psychiatric Publishing.

Robert, S. & Gold, L. (Eds). (2010) American Psychiatric Textbook of Forensic Psychiatry. Washington: American Psychiatric Publishing.

Sadoff, R.L. (2011). Ethical Issues in Forensic Psychiatry: Minimizing Harm. New Jersey: Wiley-Blackwall.