Notes on the Presentation by Mary Zdanovicz

Twenty to thirty years ago, when West Virginia's treatment laws were enacted, it was thought that mental illnesses were not physical illnesses. The medications used at that time were not very effective and the side effects could be devastating. Hospitalization was generally a life sentence. In many cases, the mentally ill were treated like criminals. In fact, civil commitment laws resemble criminal statutes and use many of the same concepts. Most states adopted laws that prevented treatment over an objection until an individual became a danger to themselves or others.

All of this was occurring at the same time deinstitutionalization was taking place. In 1955, more than 600,000 mentally ill persons were institutionalized in state psychiatric facilities. Today there are less than 70,000 institutionalized nationwide but the promise of community service was never fully realized. The funds saved from closing hospitals were never passed on to community. As a result, more than 40% of persons with severe mental illnesses are not receiving treatment at any given time; that's more than one million people.

Failure to treat yields tragic consequences. One third of the nation's homeless are mentally ill; 28% of those people get at least some of their food from garbage cans. At least 10% of the population of the nation's jails and prisons suffer severe psychiatric illnesses. About 1,000 homicides a year are committed by those who are not receiving treatment. The untreated mentally ill are three times more likely than others to be victims of violent crime. Suicide rates are ten to fifteen times higher for schizophrenics and those with manic depressive illness. Delaying treatment results in worsening symptoms, increased treatment resistance, increased hospitalizations and delayed remission of symptoms.

In the last decade there has been a revolution in the understanding of the nature of mental illness and the possibilities for treatment. We now know that mental illness is not a life style choice or a result of bad mothering but a physical illness like Alzheimer's or Parkinson's disease. Most important, some people refuse treatment because they are unable to recognize that they are ill. Today, there are medications that are tremendously helpful in controlling symptoms that do not have the negative side effects of older medications.

Treatment is not punitive but a means of liberating a captive from the symptoms of his or her illness. We must not treat people like criminals but treat their illnesses instead. States have begun to reform treatment laws.

Changes to the standards for commitment or treatment

Every state uses a "dangerousness" standard with definitions ranging from "imminent danger of serious harm" to "likely to cause harm." West Virginia's standard, "likely to cause serious harm," is somewhere in the middle. The Supreme Court of Appeals has interpreted West Virginia's standard to mean "substantial risk of harmful conduct within the reasonably foreseeable future." Other states incorporate the "gravely disabled" concept of dangerousness, i.e., a person who is a danger to themselves (or a substantial danger to themselves) because they are unable to provide for their own basic needs such a food and shelter.

The practical application of these standards is troubling because a person must spiral to the depths of their illness or do something dreadful to prove that they are dangerous.

  To address this problem, several states have added a second standard, the "need for treatment" standard. These states add some or all of the following factors to their standards to help make these decisions: (1) the probability of deteriorating symptoms that will result in the person becoming dangerous; (2) the incapacity to make an informed treatment decision; (3) a person who is likely to benefit from treatment; (4) a history of a need for treatment; (5) a person exhibiting symptoms that previously resulted in a need for treatment; (6) and/or a person that needs treatment to prevent deterioration of symptoms.

All of the states have used either "likely to deteriorate" or "incapable of making an informed treatment decision." The capacity issue should be added as well; someone who is able to weigh the benefits and drawbacks of treatment should be able to make treatment decisions.

Some states have reformed their laws to provide for a family that is the primary caretaker of a mentally ill adult child. These persons cannot be involuntarily hospitalized for treatment because they do not meet the "gravely disabled" standard because someone is providing for their care. Parents must sometimes put their adult child out into the street to prove that they are a danger to themselves. This is cruel. Some states, such as Colorado, have solved this problem by not actually requiring the parents to put the child out. To get treatment for an adult mentally ill child, the parents need only say that they are "withdrawing support." If the court then finds that the adult child cannot survive without the support, the adult child can receive treatment.

Another common problem is that people who are symptomatic but not yet dangerous end up in jail instead of in treatment. South Dakota has handled this problem by including the following factor in its "dangerousness" assessment: "evidence of harm includes arrest for criminal behaviors which occur as a result of worsening of a person's severe mental illness."

O'Connor v. Donaldson

  (U. S. Supreme Court decision on "dangerousness") Mr. Donaldson was held for fifteen years in a state psychiatric hospital when he was clearly not a danger to himself. The Supreme Court held that "the state cannot constitutionally confine, without more, a nondangerous individual who is capable of surviving safely in freedom by himself, or with the willing help of responsible members or friends." The "without more" means without more than just being held in custody. The Court made it clear that it was not deciding whether a state could hold a person for treatment. There is a more humane basis for treating people. At least eleven states are using a "need for treatment standard" and none have been overturned.

Another phenomenon that plagues every state is the "revolving door" syndrome. With new medications, hospitalization time is short. Released patients, due to lack of insight, often stop taking their medication, destabilize, and then need to be readmitted. To handle this problem, thirty-nine states use "outpatient treatment orders." There are two kinds of these orders: "conditional discharge" and "outpatient commitment." Conditional discharge is used for patients who are already hospitalized on inpatient status. Patients on conditional discharge are released on certain conditions, i.e., they continue to take their medication. If the individual fails to comply with the conditions, he or she can be returned to the hospital for additional treatment. West Virginia provides for both of these. A 1981 Attorney General's opinion allows for outpatient treatment orders and conditional discharge under W. Va. Code § 27-5-4(j).

A North Carolina study shows that outpatient treatment orders can be very effective and result in better outcomes. The study found that patients with these orders have fewer psychiatric admissions, spend fewer days hospitalized, and have lower odds of violence. Outpatient treatment orders are particularly effective for those with a history of substance abuse or violence. However, these orders are only effective if there is an effective enforcement procedure in place. Fewer hospitalizations increase the liberty of the patient.

Some states have a less stringent standard for ordering a patient into outpatient treatment than for involuntary commitment. For example, North Carolina has a dangerousness-based standard for inpatient commitment but uses a deterioration-based standard for outpatient commitment.

Who makes the treatment or commitment decision? How can we decriminalize the process?
Nebraska uses "Mental Health Boards" that are administered by the courts. They are three-person panels which consist of a lawyer and two of the following: a physician, a psychiatric social worker, a psychologist, a psychiatric nurse, or a lay person with a demonstrated interest in mental health issues. The people who make decisions about mental health care should understand the nature of the illnesses.

How can so much degradation and death so much inhumanity be justified in the name of civil liberties. It cannot. The opposition to involuntary committal and treatment betrays a profound misunderstanding of the principles of civil liberties. Medication can free victims from their illness, free them from the Bastille of their psychosis and restore their dignity, their free will, and meaningful exercise of liberty.

                            Hershel Hardy