At meeting after meeting of the Regional Health Commission, I watched people desperately try to reshape some kind of psychiatric emergency care for uninsured St. Louisans. The room vibrated with good intentions.
Until we reached the topic of “hold” prisoners.
They are in jail, awaiting trial—or awaiting an evaluation of their ability to stand trial. And sometimes they lose all hold on sanity, or loosen their grip deliberately. They may start banging their head against the wall, they may try to kill themselves, they may scream and rage and refuse medication. Or maybe it’s stopped working, or none’s ever been prescribed, or they just want out so badly, nothing will stop them.
Those patients, it was announced, would need to be parceled out to community hospitals. And the care would not be reimbursed. And they could not be garbed in their defining orange jumpsuits, and having a guard with them would be problematic, as uniformed guards upset the other psych patients.
Nobody wanted those patients.
After one of the meetings, a gentleman leaned over and told me, “I think I have a way to fix this.”
He turned out to be Dr. Alan R. Felthous, a psychiatrist at the Saint Louis County Jail, and the director of forensic psychiatry at Saint Louis University School of Medicine. He said no one would print his words without chopping them up, because what he’d written was too long and complicated.
So’s the issue.
Here’s his piece.
– Jeannette Cooperman
“[I]t is not infrequent that mentally ill persons become violators of the law. When this happens it poses a problem of establishing sanctions of social control. It is also very important to ensure the protection of rights of those who are judged to be incompetent. Both inmates of penal institutions and psychiatric patients in mental hospitals are vulnerable to misused and frivolously used power. Therefore, society’s attitude toward these two groups of people should be considered a measure of the humaneness of the society in question. This is not a new idea. It was proposed by many people over many years.”
With these words Dr. Anatoly Koryagin, the Soviet dissident psychiatrist, who experienced the worst of “psychiatric treatment” in the former Soviet Union, began his address to the American Academy of Psychiatry and the Law in Ottawa Ontario, October 1987. Dr. Koryagin’s scathing critique of the government’s misuse of psychiatry helped to bring international light to that society’s persecution of political dissidents as well as its inhumane attitudes towards mental patients and prisoners. There have also been abuses of psychiatric excess and misfeasance in the United States, but today in Saint Louis the “least of our brethren” are our fellow citizens who suffer from severe mental illness, are charged with but not convicted of a crime, are detained in jail awaiting trial, and are not receiving treatment that would relieve their suffering and improve their functioning. The attitude to be measured for the humaneness of our society is not one of persecution but of indifference.
Today across the country there are more mentally ill individuals in our nation’s jails and prisons than in all hospitals, general and mental. In many cases the treatment that mentally ill inmates receive is just as if not more effective than treatment offered in other settings. Even inmates with psychotic disturbance are more often than not provided with excellent mental health services; they improve and stabilize while in jail. There is however, a subset of mentally ill inmates whose disturbance is of such severity and quality that they are incapable of consenting to voluntary treatment. If ever there is a mentally disturbed detainee for whom hospital treatment is needed, it is the inmate who requires involuntary treatment. After these inmates are involuntarily hospitalized and provided with appropriate treatment, they are then returned to the jail to accept a plea offer or stand trial.
Jail detainees have a right to treatment under the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution. They also have a qualified right to refuse treatment. They have a right not to stand trial when they are mentally incompetent to do so, and detainees, whether mentally ill or not, have a constitutional right to a speedy trial. Beyond the detainee’s rights which should ensure timely and appropriate treatment for most serious disorders, health care professionals have an ethical responsibility to ensure access to health care.
Seriously mentally ill inmates who refuse treatment and therefore go untreated until hospital transfer, fall into one of two categories. In the first category are those who because of their mental disorder present an imminent risk of harm to themselves or others. Because of the risk of harm, these detainees qualify for court ordered emergency involuntary hospitalization. Until last month, July 15, mentally ill detainees who refused treatment and presented an imminent risk could be court ordered and transferred to Metropolitan Psychiatric Center. Since then the emergency and commitment services were to close as planned by the Missouri State Department of Mental Health, with the hope that another hospital would provide these services.
Recently MPC as allowed some commitments from area jails, but this is a temporary measure pending a complete and enduring solution. Thus far no other hospital has agreed to provide inpatient services for mentally ill inmates in crisis. Neither have Saint Louis hospitals agreed to share the burden. Neither has DMH authorized the use of another facility to meet this need. An acute need that goes unmet leads to desperation and corruption, or worse, indifference and neglect. So long as the system is broken and indifference prevails, the “least” among us will consume more resources than if hospitalized and treated and, more importantly, will continue to suffer.
There is another serious problem of indifference concerning seriously mentally disordered detainees which has long existed prior to the current crisis over emergency psychiatric services. Some jail detainees with serious mental disorder refuse appropriate treatment in the jail, yet because they present no imminent risk of harm to self or others, they do not meet criteria for court ordered emergency hospitalization and therefore remain in the jail, typically for many months. Some of these detainees eventually become an obvious risk, and then, where emergency hospitalization becomes an option, they could be transferred under court order, at least prior to July 15. Others simply remain in the jail without treatment and appropriate care.
Some may well ask why not involuntarily medicate detainees in jail? The Missouri legislature could enact law that allows involuntary medication in jail as the California legislature did during that state’s failing financial management. The U.S. Supreme in Harper allowed involuntarily medication of mentally disordered prisoners under certain conditions. Jails and prisons have much in common yet they are very different. State and federal prison systems are large networks with their own mental hospitals and other resources, whereas jails are diverse in character and administratively separate one from the other. Prisons house sentenced felons, whereas jails accommodate pre-trial detainees who have not been tried in court and convicted. The Supreme Court has thus far not extended its findings in Harper to jails. For these and other reasons, the High Court could find that jails and prisons are sufficiently different, that its holding for prison systems would not apply to jails. Moreover, the United States Department of Justice can be expected to find fault with a procedure for involuntary medication in jails as it has in the past.
Even if a Missouri law to permit involuntary medication in jails, a law that could withstand investigation by the Department of Justice and jail accreditation visits as well as constitutional challenges, were enacted, -- a big “if”-- legalizing such procedures does not render them ethical or clinically acceptable. Medication can be physically forced on anyone in any setting. The ethics of forcing mind altering medication with potential side effects to a defendant pretrial while involuntarily confined in a total institution whose purposes in the criminal justice system have nothing to do with treatment is problematic enough.
The second ethical and clinical problem is that a jail, even a jail infirmary is not a reasonable proxy for a hospital. Except for electroconvulsive therapy (ECT) and rarely used psychosurgery, involuntary intramuscular injection of antipsychotic medication is the most invasive procedure used in psychiatry. For good reasons the accepted standard for involuntary intramuscular injections of antipsychotic medication is to provide such treatment in a mental hospital or on the mental unit of a general hospital. The treatment of acute psychosis or disorganized schizophrenia is much more than piercing the refusing patient’s buttocks with a needle, as critical as that measure may be. It involves a panoply of various approaches to convince the patient to accept mediation and to comply with medication once accepted, as well as close medical and nursing monitoring that does not pause after hours and on weekends. For this level of intensive and coerced treatment, humanitarian hospital standards are far more appropriate than the relatively stark conditions of jail confinement.
Although totally impractical for most jails and lockups, one way to address this second problem with involuntary medication in jail—a jail is not a hospital—is to convert a section of a large metropolitan jail into a “hospital mental ward”. This would require substantial changes in staffing, programming and even building structure, changes that could be cost prohibitive. Assuming that the necessary expenses were provided—this also includes additional professional time needed to seek court ordered medication. Creation of a hospital ward within a jail would overcome the second problem but not the first. And it would not address the mentally disorganized but non-acutely dangerous inmate who likely lacks competence to stand trial without medication.
There is a solution to the neglected mentally ill detainee who is not at imminent risk, and once the solution is implemented, it will substantially reduce the number of inmates who require emergency hospitalization. The neglected mentally disordered inmate whose charges are minor could have the charges dropped or suspended and he could be transferred to the mental health system. If the charges are serious he will either plead or stand trial, and in either case, because of his obvious mental disorder, he will need to be assessed for competence to stand trial. Once found incompetent, he will be court ordered for hospital treatment and restoration of competence. It can unfortunately take months before the mentally disordered inmate’s defense counsel notices signs of mental disturbance, months before the court orders a competency evaluation, months before the evaluation is conducted, months before the report is completed and submitted. During such lengthy delays the detainee remains mentally disturbed, often psychotically disorganized in his thinking, in the jail, sometimes but not always, showing behavior that qualifies for emergency hospitalization.
As emergency hospital services are withdrawn from jails, more services are deployed towards restoration of competence. Unclear is to what extent the entire system, including the courts, will work concertedly to eliminate the various unnecessary delays from arrest to restoration of competence. Each step towards the resolution of incompetence should be accomplished efficiently and without temporization. Other communities have achieved this. Saint Louis certainly can.
Addressing the psychotically disturbed inmate responsively through competence procedures will diminish the number of crises that place a burden on emergency services, but just as importantly, it will provide access to proper treatment for the seriously mentally ill who do not present imminent risk of harm beyond that of progressive deterioration of their mental state and behavior.
No doubt that public defenders, private attorneys, courts, and forensic evaluators are all overstretched, understaffed, and far behind on their respective responsibilities. Such concerns however realistic were insufficient excuse for not recognizing that felony defendants have a right to defense counsel (Gideon v. Wainwright). Such concerns did not excuse the Alabama mental health system from hiring enough staff and providing appropriate treatment for hospitalized mentally ill patients (Wyatt v. Stickney). Such concerns should not obstruct the severely disabled detainee from receiving needed treatment and proceeding to trial. Until potential resources are appropriately deployed to meet the urgent and dire mental health needs of the least among us, those involved in ensuring access to treatment can prioritize based in part on extremity and urgency of need. It’s a matter of care
