Time for a change?
Involuntary treatment laws alterations considered
Like they did most mornings, Constance and David Johnston sat down for breakfast in their Richland home about 9:30 a.m. on Feb. 19, 2013. Connie read the comics as she ate, her husband of 51 years next to her.
Their adult grandson walked in, and without looking up, David said, “Good morning, Levi.”
The 26-year-old didn’t return the greeting. That wasn’t unusual — for years, Levi Staver’s schizophrenia had prevented him from having typical interaction with his family.
Instead, he shouted, “This has got to stop!” and plunged a 6-inch-long black Bowie knife into his grandmother’s back.
David leaped to his feet — trying to disarm Levi with one hand while trying to steady Connie, who was attempting to help him, with his other.
Ruth Johnston, the couple’s daughter — and Levi’s mother — had been in the basement when she heard scuffling upstairs. She raced up to find her mother bleeding and her father trying to get the knife away. She immediately called 911. “Drop the knife,” David demanded. “I can’t. It’s attached to my wrist,” Levi answered. “You’ll have to let me go.”
David finally wrestled Levi to the kitchen door and threw him down the concrete steps to the outside.
Ruth watched as her son’s face smashed off the ground, and then turned to see her father pulling his wife off the couch and into his lap on the living room floor.
It wasn’t until hours later, when she had been taken to the police department to give a statement and saw her father there that she learned what happened.
“I said, ‘Dad, has anyone gone to the hospital to be with mom?’”
“Mom never left the house,” David responded. “It was a murder.”
Levi was charged with criminal homicide, and nearly four years after he killed his grandmother, he pleaded guilty but mentally ill to third-degree murder. In June, despite argument that Levi’s schizophrenia had been stabilized in jail, as well as during an eight-month stay at Torrance State Hospital and expert reports suggesting he would be better served
by obtaining mental health treatment in the community, he was ordered to serve 10 to 20 years in prison. Although pleading guilty but mentally ill assures that Levi will be evaluated for mental illness and receive medication in prison, it does not guarantee him intensive treatment like he’d receive in a hospital.
Ruth and David, who said they have forgiven him for his actions, believe that had Pennsylvania’s involuntary treatment laws had a lesser standard than “clear and present danger,” Levi would not be facing a decade of incarceration.
“By the time you get to ‘clear and present danger,’ it’s too late,” Ruth said.
In the months leading up to the stabbing, the only remedy for the Johnston family was kicking Levi out of their home, which Connie said they would never do.
“All we could do was make him homeless,” David said. “That’s appalling. That’s Godlessness in a nation that deserves better.”
Instead, they kept Levi at home and continued to try to convince him to get treatment.
“We never really expected it to be violent,” Ruth said. “But he had pickled in the delusion for so long, it became real to him. It took him that much psychosis — five years — to get him to do something violent. He never punched a wall. He never raised his voice.
“He was never violent until he was.”
At its peak, in 1955, there were 555,000 people with mental illness in public hospitals.
Now, there are about 40,000.
And even though it was clear for decades — up through the 1970s — that too many people were being thrown away in institutions under the guise of mental illness, experts say, it is equally clear that the changes in the law made it far too difficult to get involuntary, inpatient treatment for those people who most needed it — like Levi Staver.
“We swung the pendulum too far,” said Frankie Berger, director of advocacy for the Treatment Advocacy Center in Washington, D.C., which focuses on legislative and policy issues for the most seriously mentally ill.
So now, little by little, across the country, individual states have been moving to swing it back.
Pennsylvania, however, is among the last to make any change.
The state’s Mental Health Procedures Act was passed in 1976, and 41 years later, it remains mostly unchanged. It sets the standard for involuntary commitment for a person who is “severely mentally disabled when, as a result of mental illness, his capacity to exercise self-control, judgment and discretion in the conduct of his affairs and social relations or to care for his own personal needs is so lessened that he poses a clear and present danger of harm to others or to himself.”
That criteria, “clear and present danger of harm,” is too high, experts say.
“It’s the strictest that I know of in the country,” Berger said. “We have to figure out a way to get these people help.”
She is talking about people with schizophrenia or severe bipolar disorder -— in Pennsylvania that’s about 111,000 and 222,000, respectively, her group estimates. They often fail to recognize the need for treatment, experts say, making it difficult for them to seek help voluntarily.
“Many people with severe mental illness who are not engaged in treatment because they deny anything is wrong would benefit from involuntary hospitalization,” said Dr. Paul Appelbaum, a psychiatry professor at Columbia University and past president of the American Psychiatric Association.
He supports an “awareness of illness” standard, which would recognize that a person is decompensating but not threatening, and notes that that criteria would allow the system to intervene in the most heart-rending of family cases.
Dr. Appelbaum noted, though, that changing to that more broad standard would also open the system up to a large group of people who previously were not getting treatment, and that would require increasing resources.
“If you’re not willing to do that, there’s no reason to expand your commitment law,” he said.
Berger, whose organization has been lobbying in Pennsylvania for years, called the involuntary treatment laws here “a convoluted, strange system,” that “have been fiercely protected by the Legislature.
“There’s very little political will, and a lot of opposition, to changing the inpatient threshold,” she said. “A couple of people killing their grandmas is not providing the impetus they need to change the criteria on the inpatient side.”
But, Berger notes with satisfaction, her organization, working with many others in Pennsylvania, may see movement this year on involuntary, outpatient treatment, known as Assisted Outpatient Treatment, or AOT.
AOT already exists in Pennsylvania, but those who work in the mental health field have rarely been able to use it on its own. That’s because it requires the same high burden, “clear and present danger of harm to others or to himself” as the inpatient law.
“If there is a concern for dangerousness, those folks are going to an in-patient commitment,” said Denise Macerelli, the deputy director for the Office of Behavioral Health, Allegheny County Department of Human Services.
Instead, as AOT in Pennsylvania stands now, it is most often used as a followup to inpatient commitment.
But that could change in coming months. The state House passed legislation 1890 in June changing the criteria for involuntary, out-patient treatment, and it has now been referred to the state Senate (see state House Bill 1233). The new standard would require “establishing by clear and convincing evidence that the person would benefit from (AOT) as manifested by evidence of behavior that indicates all of the following:
— The person is unlikely to survive safely in the community without supervision, based on a clinical determination;
— The person has a history of lack of voluntary adherence to treatment for mental illness and has either: twice within the last three years been involuntarily committed because of a failure to adhere to treatment; or within the last four years has acted on or threatened serious violence to self or others;
— The person is unlikely to voluntarily participate in treatment;
— The person is in need of treatment to prevent a relapse or deterioration that would be likely to result in a substantial risk of serious harm to the others or himself. The initial process of evaluation would be similar to what exists now, including the same due process, and if a person is found to meet the standards, a judge would issue a civil court order calling for outpatient treatment.
That treatment includes community psychiatric supportive treatment, medication assistance, individual or group therapy, financial services, housing services, and any other service prescribed to assist the patient.
But, those advocating for the change, note that there are no punitive measures attached to the law. If a participant doesn’t follow the treatment plan, they cannot be fined or jailed or involuntarily committed to a hospital, or anything else. Instead, they are asked to report back to their judge, explain why they’re no longer compliant, and the treatment plan gets adjusted.
“It’s tremendously successful,” said Berger, whose organization has been working on AOT legislation in Pennsylvania for 10 years.
Right now, 46 states have existing AOT laws.
“The data are quite positive,” Dr. Appelbaum said.
AOT, he continued, is effective in treatment and in preventing relapse, and is cost-effective. It’s also, he added, one of the least coercive interventions that exists, and the structure it provides to patients leads to better outcomes.
But there are other groups, like the National Coalition for Mental Health Recovery, that argue against involuntary outpatient treatment.
Joseph Rogers, whose organization, Mental Health Partnerships, based in Philadelphia, participated in developing a fact sheet on the issue, said that they believe the vast majority of people can be treated voluntarily in the community.
As for the proposed change to Pennsylvania law, Rogers said, there is no funding source attached to it.
“We take the position that the law is not the issue,” he said. “It’s the lack of services, cutting the budget, a lack of insurance coverage for longterm mental health care.
“(It will) make it easier to commit somebody to something that doesn’t exist. It’s a false solution.”
Dan Eisenhauer, the president of the Pennsylvania Association of County Administrators of Mental Health and Developmental Services, agrees there is a concern moving from county to county, where resources in more rural areas are less available.
But in Allegheny County, there are wrap-around services ready and available to address those needs, Macerelli said. People with mental illness or their families can call re:solve Crisis Network. That program takes calls, determines if a mobile team needs to be sent out to an individual, and can provide follow-up care — through calls, visits or voluntary admissions to its walk-in center.
It offers flexibility to those in need, Macerelli said, and “doesn’t have to be overwhelming (like) going into a mental health hospital.
“Families don’t need to figure it out, they just need to call and say ‘we need help.’”
But she also recognizes
the frustration that comes for families whose loved one refuses treatment.
“You can’t force the mental health crisis response on an individual,” Macerelli said.
That’s why she thinks a change in the AOT law could be beneficial and will get more people who need it into treatment. But, she’s also cautious. “As a county, we have no way of anticipating what the volume need will be,” Macerelli said. Too, she said, it’s essential to make sure it is adequately funded and supported, and that the details are thought through to ensure successful implementation.
Eisenhauer’s organization worked with legislators on crafting the current bill and issued a white paper on the issue, promoting the relaxation of the dangerousness standard both for AOT and inpatient treatment. He called Pennsylvania’s laws on this issue “antiquated.”
“We do believe in voluntary treatment for most people, because it works,” Eisenhauer said. “But we can’t ignore that there are instances where the current construct of the law isn’t helpful to people because of the dangerousness standard.”
He believes the change in the AOT law will “absolutely help with that population.”
But, he continued, “I don’t see it being this big gamechanger.”
That would come, Mr. Eisenhauer said, if the in-patient standard were changed.
All of the experts agreed that the vast majority of seriously mentally ill people never become violent, and instead are much more likely to be the victim of crime.
Berger doesn’t dispute that. But the Treatment Advocacy Center, in a recent report, also found that in 2013, out of 16,121 homicides across the United States, 1,149 of them involved a seriously mentally ill person killing a family member. That equaled 7 percent of all homicides.
“It’s not that everyone with a mental illness is violent,” she said. “But when they are, it’s against their family members. In Pennsylvania, we’re forcing families to walk that line in a very dangerous way.”
Her organization worked with the family of Michael McDaniel after he tried to kill his grandmother in 2012, and with the family of Levi Staver after he did kill his in 2013.
“He doesn’t have this history of violence in his past, but what he does have is a very clear path in decline,” Berger said of Staver. “He is decompensating. He is very sick. He is having hallucinations. He is having paranoid thoughts.
“All of these things, even if he’s not actively harming himself or anyone else . we can see the writing on the wall.”
Had Staver been living in Ohio in the months leading up to his crime, Berger said, he likely would have gotten involuntary, inpatient treatment. There, and in several other states, they used the standard of “grave risk,” and “inability to provide basic needs.”
“In other states, there’s a lot more legal flexibility to get the treatment he clearly needed.”
Changing the dangerousness standard, Berger continued, would allow mental health professionals to treat gravely ill people as if it were a medical illness, “instead of (like) a philosophical debate about civil liberties,” Ms. Berger said.
She emphasized that her organization believes in protecting individuals’ rights to refuse treatment.
“But we also have the responsibility to provide care for vulnerable people,” Ms. Berger said. “They’re going to end up homeless, or in jail or killing themselves.
“This isn’t hyperbolic.”
Levi Staver and Michael McDaniel have remarkably, dreadfully similar stories.
Michael, who has schizophrenia, tried very hard to kill his grandmother on Jan. 23, 2012.
Levi, who has schizophrenia, succeeded in killing his grandmother on Feb. 19, 2013.
Michael, 35, whose case occurred in Berks County, was ordered to inpatient treatment at Wernersville State Hospital for at least one year after the judge granted a motion for judgment of acquittal, finding that Michael was insane at the time of his crime and therefore not criminally responsible. It is the equivalent in criminal law to being found not guilty by reason of insanity.
Levi, 31, whose case occurred in Allegheny County, was forbidden by the judge in his case from admitting evidence of his mental illness at trial, and therefore pleaded guilty but mentally ill to thirddegree murder and was ordered to serve 10 to 20 years in prison.
The cases illustrate the difficulty in securing treatment in Pennsylvania before a person turns violent, and the wide range of discretion available to judges across the court system.
Paul Appelbaum, a psychiatry professor at Columbia University and past president of the American Psychiatry Association, said the criminal disposition of guilty but mentally ill came into being in the 1970s and ‘80s to give jurors an alternative to finding a defendant not guilty by reason of insanity.
“They recognize the defendant is mentally ill, but still punish him,” Dr. Appelbaum said. “But in many respects, guilty but mentally ill is a sham.”
Under Pennsylvania law, a verdict of guilty but mentally ill guarantees the defendant will be evaluated for treatment, but that’s it. It does not guarantee treatment or placement in a secure setting.
“In general, these people are kept in prison for a substantial period of time,” he said. “It’s an unfortunate direction that our law went.”
Dr. Appelbaum noted that the more heinous a crime is, the more unlikely a judge or jury will find a defendant not guilty by reason of insanity.
“We seem to be stuck with substantial discretion on the part of the judges, and depending on which judge gets assigned to the case that day,” he said.
When Judge Lieberman returned his verdict that would, someday, allow Michael to return home, the family was in shock.
His mother, Nina McDaniel, who now advocates for better mental health care for the seriously ill, has become friends with Levi’s mother, Ruth Johnston. They talk on the phone about the law, their struggles and lament how things could have been.
They compare stories.
“The positive thing is that we’re all alive,” Nina said. “We have deep wounds, but we’re all alive.”
And they compare their outcomes. Levi is now at the State Correctional Institution at Camp Hill. Michael is finding success in a group home.
“That’s what I wish would have happened for Levi,” Nina said. “Wow, what a difference it makes. (Michael) is even better than he was when he became ill.”
“Michael is not a schizophrenic first. He’s actually our Michael.”