TO COMMIT OR NOT: VIRGINIA OVERHAULS ITS MENTAL HEALTH SYSTEM

Volume 29, Issue 507 January 22, 2008

Christina Kent

When a Virginia Tech student killed 33 students and professors last April 16, he drew national attention to a recurring, controversial subject: how to ensure that persons with mental illnesses get the help they need, when they need it.

“Mental health will be a significant issue in the Commonwealth of Virginia during its 2008 session,” said Delegate Phil Hamilton. By January 9 (the deadline for introduction of legislation) lawmakers had proposed more than 100 bills pertaining to the issue.

“I think there’s a consensus that we’re going to do something on these issues in particular,” Delegate Rob Bell told the Hampton Roads Pilot. “What is the actual shape it will take? I’m hesitant to predict.”

Virginia lawmakers have a jump on reforms. In 2006, the Chief Justice of the state Supreme Court appointed a Commission on Mental Health Law Reform to analyze the existing system. Last December, the commission released a preliminary report of recommendations, and its members will continue framing other long-term reforms.

“Six percent of Virginians have a serious mental illness, and one of every four citizens of the Commonwealth has a diagnosable mental illness of some type,” Governor Tim Kaine said. “…Due to chronic under-funding and an insufficient focus on the quality of care, our mental health system has not been measuring up to the needs of Virginia’s mentally ill.” He proposed increasing funding for the system by $42 million, as well as issuing $55 million in bonds to improve mental health facilities.

Controversies Aplenty

The General Assembly faces a wide variety of difficult issues in its 2008 session, such as how to:

foster communication between the different entities (such as criminal justice, housing and child welfare) that people with mental disorders come into contact with;

track people as they move through these systems; and

keep people with mental disorders engaged in treatment, regardless of whether that treatment is voluntary or mandated.

One of the most controversial issues involves the process known as outpatient commitment, under which a person with a mental disability is ordered by a court to comply with a treatment plan, such as a medication regimen or therapy sessions, on an outpatient basis. Failure to comply may result in hospitalization. Nearly 40 states have statutes that mandate outpatient treatment, but few states have made substantial use of those laws—until relatively recently, that is.

Nationwide interest in outpatient commitment soared after 1999, when New York passed “Kendra’s Law,” according to a paper co-authored by Richard Bonnie and funded by the John D. and Catherine T. MacArthur Foundation. Bonnie is the University of Virginia professor who chairs Virginia’s mental health law commission. “In many states a take-no-prisoners battle is under way between advocates of outpatient commitment—who call this approach assisted outpatient treatment—and its opponents—who use the term ‘leash laws,’” the paper says.

The Treatment Advocacy Center (TAC) notes that some people, as a result of mental illness, reject treatment offered on a voluntary basis. These individuals often commit suicide; become homeless; end up in jail; or, on rare occasions, are involved in acts of violence, TAC says. Assisted outpatient commitment can help prevent such outcomes.

(Studies of violence perpetrated by people with mental disorders differ in their exact findings. But experts tend to agree that a person with an illness such as schizophrenia is no more likely commit an act of violence than is someone in the public at large, and, they say, persons with severe mental illnesses are more likely to be the victim of crimes than the perpetrators. A study published in the American Journal of Psychiatry found that, over a 13-year period, 5.2 percent of the violent crimes in Sweden were committed by someone with a severe mental illness.)

The Bazelon Center for Mental Health Law says that outpatient orders violate a person’s constitutional rights. Data show that access to appropriate services is just as effective as outpatient commitment, Bazelon adds. In one of only two controlled studies on the subject, individuals given the option of enhanced community services did as well as those under mandated treatment.

What’s the Standard?

At the heart of the controversy over outpatient commitment is what may look to some like a mere detail: the standard that judges must use to decide whether to order treatment. “Broad” standards allow judges to base their decisions on a large array of criteria, which could result in more persons being commited. Strict standards give judges less leeway, and often require that the judge find that the person in question is in immediate danger of harming himself or others.

In Virginia, a judge must find that the person in question is in “imminent danger” of harming himself or others. This standard is one of the most restrictive in the nation, and is given widely varying interpretations in different localities, the state commission found.

In contrast, Kendra’s Law allows a judge to determine whether to order outpatient treatment based on the individual’s treatment history and current behavior. Treatment may be ordered if the judge believes it will “prevent a relapse or deterioration which would be likely to result in serious harm to the person or others.” In other words, there is no need to wait until a deteriorating consumer actually is dangerous to self or others. Under Kendra’s Law, persons can start the process to "prevent a relapse" that could lead to dangerousness.

Virginia’s lawmakers are wrestling with the question of whether to revise their standard. The state commission answered this question with a “yea.” The commission recommended that a person with mental disorder be subject to involuntary treatment if:

(a) there is a substantial likelihood that, in the near future, he or she will cause serious physical harm to himself or herself or another person, as evidenced by recent behavior causing, attempting or threatening such harm; or

(b) there is a substantial likelihood that, in the near future, he or she will suffer serious harm due to substantial deterioration of his or her capacity to protect himself or herself from such harm or to provide for his or her basic human needs.

Delegate Bell’s HB 59 would act on this recommendation. Under his bill, a person may be taken into custody if he or she is mentally ill, and it is “substantially likely” that he or she will in the near future cause serious physical harm to himself or others as shown by recent behavior causing, attempting or threatening such harm, or has been proven to be so seriously mentally ill as to be unable to care for himself.

Delegate David Toscano’s HB 1323 deals with the fact that many persons with mental disorders who are in crisis are taken to emergency departments. The bill would enable judges to issue temporary detention orders based on the recommendations of emergency physicians, who would be trained to perform psychiatric evaluations.

Senator John Edwards’ SB 18 would direct the state Supreme Court to establish a pilot program of two to five mental health courts. Mental health courts strive to promote good mental health, and reduce incarceration and recidivism of persons who have been diagnosed with a mental illness, by linking nonviolent offenders to mental health services. At least 32 states have mental health courts, according to the National Center for State Courts.

For more on mental health issues, please go to: www.ncsl.org/programs/health/forum/screening.htm, or contact Sarah Steverman, Sarah.Steverman@NCSL.org, (202) 624-3583