Commitment often not an option for the mentally ill

from The Oregonian, by Don Colburn


The fraying of Oregon’s mental health safety net in the past few years has forced more chronically ill people into crisis situations that play out in hospital emergency rooms, courts and jails.

It also intensifies an already heated debate over civil commitment, the use of a court order to keep a mentally ill person in the hospital against his or her will for up to 180 days.

Civil commitment laws, designed as a buffer between the mental health system and the criminal justice system, date to the 19th century. But their tone has changed sharply over the years.

Oregon law allows involuntary hospitalization only for mentally ill people who pose an immediate danger to themselves or others. But defining “dangerous” is tricky, said Dr. Neil Falk, a psychiatrist and medical director for crisis services at Cascadia Behavioral Healthcare, the largest provider of mental health care in Multnomah County. “That’s a very subjective term.”

Civil commitment of a person who refuses treatment poses a clash between two lofty principles: the right of an individual to be left alone and the societal need to protect people from harm, even from themselves. Lately, the outcome has tilted toward the individual.

“There are a lot of tough issues in mental health, but that one is the most contentious,” said Lee Carty, spokeswoman for the Bazelon Center for Mental Health Law in Washington, D.C. The controversy reflects a mental health system that is increasingly crisis-driven, she said.

“In the 1960s, we decided to empty the state hospitals,” said Phil Chadsey, an attorney who works with Oregon’s chapter of the National Alliance on Mental Illness. “Basically, we put many of the mentally ill on the streets because we didn’t fund outpatient services for them. It’s a long, sad story.”

A recent high-profile case in Portland raises questions about how police deal with people who are mentally ill. James P. Chasse Jr., 42, a man with schizophrenia, died Sept. 17 in police custody. The officers who confronted Chasse said they did not realize he was mentally ill.

In the aftermath, Portland Mayor Tom Potter and Police Chief Rosie Sizer vowed to give all officers training in dealing with the mentally ill. With recent cutbacks in mental health coverage and services, including critical cuts in the past three years, police increasingly find themselves on those front lines.

People see others on the street who are mentally ill and not doing well, and they wonder why the courts don’t step in, said Mike Morris, a policy manager for the state Mental Health and Addiction Services division. But civil commitment means taking away someone’s liberty even though that person hasn’t committed a crime. “That’s why it’s a tough standard.”

“It’s always a balancing act,” said Dr. Joseph Bloom, emeritus professor of psychiatry at Oregon Health & Science University. Bloom recently studied trends in civil commitment over the past 20 years in Oregon and concluded that it’s becoming something of a legal endangered species.

A civil commitment typically begins when doctors or police bring a patient in crisis to a hospital for an emergency “hold” of up to five days. A county investigator looks into whether the person should be released or given a civil commitment hearing before a judge –who can order a psychiatric hospital stay of up to 180 days.

The number of holds in Oregon doubled between 1983 and 2003. But the commitment rate is half what it was 20 years ago, Bloom said.

In other words, fewer people placed on hold are moving to the next stage: a commitment hearing. Theoretically, that might be because they stabilize their lives with no need to stay in a hospital.

Unfortunately, that’s not what usually happens, Bloom said.

“When you decrease civil commitments, as we have, you get more people in jail,” he said. “We’ve directed a lot of mentally ill people either into the criminal justice system or onto the streets.”

Between 10 percent and 15 percent of people jailed nationwide have a severe mental illness, according to a U.S. Justice Department guide for police published in May. A recent state report in Oregon found estimated that 20 percent of all jail and prison inmates have a mental illness.

“The jails are considered the biggest psychiatric holding areas,” said Circuit Judge Lewis Lawrence, who hears most civil commitment cases in Multnomah County.

Fate decided in Room 220

No one commands, “All rise,” when Lawrence enters Courtroom 220 in the Multnomah County Courthouse. He wears a white shirt and tie –no black judicial robe –and presides from an ordinary chair across an oval conference table from the patient.

It’s here in Room 220 that some of the county’s most vexing medical-legal-social interactions play out, in hearings that decide whether someone with a mental disorder should be civilly committed. The informality of the setting is aimed at making the proceedings less intimidating, Lawrence said.

An Oregon Court of Appeals ruling last month shows how hard it is to hospitalize a person against his will, even one who is delusional.

The appeals court overturned the involuntary commitment of a 29-year-old man with schizophrenia, Thomas R. Olsen. Olsen, who reported seeing leprechauns, had been hospitalized repeatedly. He had heard voices since he was 11 years old.

A county investigator concluded that Olsen was “totally unable to assist in any discharge planning or realistic discussion of his future,” could not identify his medicines and had not arranged for outpatient care or a place to live.

But at his commitment hearing, Olsen asked to be released, saying he could take care of himself.

Two psychological examiners found Olsen delusional and potentially dangerous to himself. Judge Lawrence agreed and ordered him committed for 180 days.

Olsen appealed, and the Court of Appeals backed him.

“Delusional or eccentric behavior –even behavior that may be inherently risky –is not necessarily sufficient to warrant commitment,” concluded Judge Jack Landau, writing for the court. Civil commitment is “not intended to be used as a ‘paternalistic vehicle’ to ‘save people from themselves,’ ” he said.

Civil commitment “should not be a dumping ground for a failed mental health system,” said Lance Perdue, Olsen’s lawyer. “The courts are making a statement: You can’t just have people locked up because they can’t get services.”

“There’s a real struggle going on right now,” Lawrence said, adding that the Olsen case typifies an intensifying dispute. When he started hearing civil commitment cases eight years ago, the Court of Appeals hardly ever overruled him.

That has changed dramatically.

“It has gone from a flood of affirmations to a flood of reversals,” said Lawrence, 55, a judge for 22 years. “A lot of mentally ill people are going out on the street. The Court of Appeals believes they are protecting the freedom of the individual. But there’s more than liberty at stake here.”

A divisive trend

Civil libertarians hail the decades-long trend away from institutionalized care and civil commitment for those who refuse care. They say eccentric, reckless, even threatening behavior –without clear and immediate danger such as knife wielding –is not grounds for taking away someone’s freedom and forcing treatment.

Others say the pendulum has swung too far, depriving patients of needed treatment and allowing some, as one psychiatrist put it, “to die with their rights on.”

During the fiscal year ending June 30, Multnomah County had about 4,000 emergency holds. Most of those cases were soon dismissed, because the patient got past the immediate crisis or was not deemed sick enough and dangerous enough for a commitment hearing. But 380 reached the hearing stage, and about 300 patients were civilly committed –up slightly from the year before.

“We’re seeing sicker people, a lot more (with) drug and alcohol problems and a lot more meth use,” said Jean Dentinger, county supervisor for involuntary treatment. Still, nine of 10 hold cases are dropped. “That doesn’t mean they don’t need treatment,” she said. “It means they no longer meet the legal criteria for being forced into treatment.”

It’s the hospital emergency staff’s responsibility to try to link such patients –those who are willing –with help, if it can be found. Help could mean anything from medication or private counseling to a homeless shelter.

A major shift in Oregon commitment law came in 1973, when the standard changed from “unsafe to be at large” or “suffering from neglect, exposure or otherwise” to “dangerous to self or others.” During the 1980s, as urban homelessness grew more visible, a backlash prompted some states –including Washington, but not Oregon –to broaden their laws to cover the “gravely disabled.”

Civil commitment remains a crucial tool for people “who are seriously ill but don’t have good insight into that fact,” OHSU’s Bloom said. But it’s not enough by itself. “You can have the greatest civil commitment law in the world,” he said, “but if you don’t have any beds available, it’s a train to nowhere.”

“All the hospitals are full,” said Bob Joondeph, executive director of the Oregon Advocacy Center, an independent group aimed at protecting the rights of the mentally and physically disabled. “It’s a clogged system. It’s hard to get in and hard to move through in a timely manner.”

Multnomah County has lost nearly 200 psychiatric hospital beds in the past five years with the closure of Eastmoreland, Pacific Gateway and Woodland Park hospitals and the Crisis Triage Center at Providence Portland.

Conflicting definitions

One reason civil commitment poses such a dilemma, psychiatrist Falk said, is that the medical and legal definitions of “dangerous” are not the same –and may even conflict.

Consider, he said, a man who is homeless and psychotic, refuses to seek treatment and sleeps outdoors on a Portland sidewalk during a chilly, rainy winter. The man is vulnerable to hypothermia and to others on the street and sometimes acts aggressively toward passers-by. “Medically, you know the man needs treatment,” Falk said. “But legally, it’s a very high threshold.”

The man probably wouldn’t meet the legal commitment standard of being dangerous to himself or others, because he says he knows where the homeless shelter is and will go there if things get rough.

The issue has shifted radically, said Dr. Paul Appelbaum, head of psychiatry, law and ethics at Columbia University and a pst president of the American Psychiatric Association. The question used to be mainly medical: How sick is this person? Today, it’s more complex; Is this person dangerous?

“It’s extremely difficult for family members,” Appelbaum said. “I’ve been called on innumerable occasions by families who say their loved one has left home and is wandering the streets and eating out of dumpsters.

“It’s heartbreaking to tell them that under the law, unless the person can be shown to be dangerous, there may not be anything they can do.”