Robert Nikkel has written a good article about concrete steps we need to take to effect meaningful change in our broken mental health system. He mentions “the tragedy of Andrew Rich,” noting that the only reason given for extending Andrew’s involuntary commitment was his disagreement with a psychiatrist’s opinion that he was “mentally ill.” This is not a valid or lawful basis for extending an involuntary commitment, but as an attorney who has represented many Wisconsin clients in these proceedings, I can tell you that it is done routinely. Nikkel outlines eight problems with the current system and provides specific suggestions for solutions we can implement.
This article uses Andrew’s story to illustrate how miserably the mental health treatment and legal system failed him. It’s an analysis of the failed paradigm that is euphemistically called “Assisted Outpatient Treatment.” It sounds so helpful, doesn’t it? We’re providing assistance to people who need it because, the theory goes, their brains are too broken to allow them to make their own treatment decisions. What it really means is forced drugging of people alleged to be mentally ill. Forced injections of psychotropic medications known to have debilitating, permanent side effects. People are placed on involuntary civil commitments that get renewed year after year with no meaningful judicial review and no end in sight for the person subjected to the commitment. The authors take on the myths surrounding mental illness (such as the supposed danger unmedicated people pose to society) and debunk them with strong scientific evidence. https://www.madinamerica.com/2019/07/twenty-years-kendras-law-case-aot/?fbclid=IwAR1RJktQnXwVMwmPSNGBttRt0XjL2MbEC4rYaMYkxib6BxsZSCpVI-27MfA
How would Jesus be assessed using currently accepted criteria for mental illness diagnosis?
Suppose that Jesus of Nazareth walked the earth, not 2000 years ago, but today. Suppose he showed up in Wisconsin. He had formerly been gainfully employed as a carpenter, but he had not worked in many months, indicating a reduced capacity to care for himself. Moreover, he would not be seeking work, because he believed the judgment day—the end of the world—was imminent. He told his followers that he was the Son of Man, sent by God to spread a message of hope and salvation to the world. He said he was a prophet. He believed that God gave him the power to perform miracles: changing water into wine (John 2:1-11), walking on water (John 6:15-21 and Matthew 14:22), feeding multitudes with only two fish and five loaves of bread (Matthew 14:31). He believed he had the power to raise Lazarus from the dead, and he did so (John 11:1-44). He was quoted as saying, “I am the resurrection and the life. He who believes in me will live, even though he dies.” (John 11:25). He challenged the prevailing religious and governmental authorities, saying that he did not need to abide by their rules because he answered to a higher power: God the Father. Whoa. We have a problem here.
The primary psychiatric diagnostic tool used in the United States today is the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, known as the DSM-5. This book is endorsed by the American Psychiatric Association, and is a hymnal from which almost every psychiatrist involved in mental illness sings. The DSM-5 is basically a cookbook, designed to allow the psychiatrist to come to a diagnosis and medication decision based on 5-15 minutes with a patient. By identifying 4-5 “diagnostic criteria,” the treating psychiatrist can quickly and efficiently label the patient with a diagnosis, prescribe medication, and move on to the next patient, all in the space of a few minutes. For subjects of involuntary commitment, this practice can impose drastic restrictions on their civil liberty.
So, how would our system handle this problem of Jesus of Nazareth? He would in all likelihood be detained by the police, and incarcerated in the detention center or a lock-down psychiatric ward. Within 72 hours, he would be brought before a court commissioner for a probable cause hearing. These hearings tend to be rubber-stamped, because the burden on the County (seeking to obtain an involuntary commitment) is so low. I have advocated for the subjects of these hearings, and have faced annoyance from judges and prosecutors because I actually cross-examine the doctors and law enforcement officers. This is not the norm; a typical probable cause hearing lasts about five minutes. Mine last 30 minutes or more, much to the exasperation of the courts.
Back to Jesus. Here is how I believe he would be assessed using the DSM-5:
Diagnostic Criteria (295.90 [F20.9])
Two (or more) of the following, each present “for a significant portion of time during a one-month period (or less if successfully treated). At least one of these must be (1), (2), or (3):
3. Disorganized speech
4. Grossly disorganized or catatonic behavior
5. Negative symptoms (i.e., diminished emotional expression or avolition)
B. For a significant portion of the time since the onset of the disturbance, level of functioning in one or more major areas, such as work, interpersonal relations, or self-care, is markedly below the level achieved prior to the onset…
Some individuals with psychosis may lack insight or awareness of their disorder (i.e., anosognosia). This lack of ‘insight’ includes unawareness of symptoms of schizophrenia and may be present throughout the entire course of the illness. Unawareness of illness is typically a symptom of schizophrenia itself rather than a coping strategy…This symptom is the most common predictor of non-adherence to treatment, and it predicts higher relapse rates, increased number of involuntary treatments, poorer psycho-social functioning, aggression, and a poorer course of illness.”
To find that Jesus is schizophrenic, we need only find that two of the symptoms listed in the DSM-5 “cookbook” apply. Clearly, he has exhibited delusions: these are fixed beliefs that are not amenable to change in light of conflicting evidence (DSM-5, p. 87). Delusions are deemed bizarre if they are clearly implausible and not understandable to same-culture peers and do not derive from ordinary life experiences.
Hallucinations are perception-like experiences that occur without an external stimulus. They are viivd and clear, with the full force and impact of normal perceptions, and not under voluntary control. (DSM-5, p. 87-88).
Delusional disorder, grandiose type: “This subtype applies when the central theme of the delusion is the conviction of having some great (but unrecognized) talent or insight or having made some important discovery.”
Based on the foregoing, we would diagnose Jesus as follows:
Schizotypal (Personality) Disorder
The patient presents with delusions and hallucinations, with grandiose type applications.
The patient believes that he is a prophet, and is the son of God or the Son of Man. He has said that he was sent to earth by God to take on the sins of all people, and in doing so, to save all of mankind. Such thinking is clearly delusional, of the grandiose type.
Further, the patient has multiple hallucinations. He hears voices that others do not; he claims the voice is that of his father, God. The patient believes that he has the power to cure the incurable; to raise people from the dead; to change water into wine; and to walk on water. All of these perceived “powers” or experiences fall within the DSM’s definition of hallucinations, and are further evidence of the patient’s schizophrenia.
There are also issues with the fifth criterion, lack of self-care. Jesus is unemployed and homeless. The patient has, on numerous occasions, expressed his belief that the end of the world is near. For that reason, the patient does not believe he should seek employment, housing, or take reasonable measures for self-care. For this reason, as well as the mental illness findings set forth above the County believes the subject is properly a person in need of mental health commitment.
But wait: Jesus has done nothing to indicate that he is a danger to himself or others. Doesn’t the government have the burden of proving dangerousness before involuntary commitment can be ordered? According to the seminal Wisconsin case, Lessard v. Schmidt, the answer to that question is a clear “yes.” In recent years, however, we have moved away from that standard and toward a more paternalistic view that significantly lowers the bar for a finding of dangerousness. In Wisconsin, this is known as the “fifth standard.” It has withstood several constitutional challenges, despite the fact that it allows someone to be involuntarily committed with no showing of dangerousness. More on that in another blog post.
Of course, there was that incident in the temple. Jesus violently expelled merchants and money changers from the temple which stood on the Temple Mount in Jerusalem. He reportedly used a whip on humans and animals alike, and forcibly overturned their tables. Matthew 21:12-17; Mark 11:15-19; and Luke 19:45-48. Clearly, this is someone who presents a danger to others.
The result? After the probable cause hearing, a final hearing will be held. The examining doctor will present the evidence above to show that Jesus has a mental illness and is dangerous to himself or others. He will recommend inpatient treatment (i.e., incarceration in a lock-down psych ward), as well as involuntary medication (meaning, if the patient refuses to take the medication, he will be placed in a four-point restraint and forcibly injected by a team wearing helmets, body shields and gloves). The judge will find in favor of the County, and will check the boxes on two pre-printed forms: mentally ill, check; dangerous, check. Involuntary medication (with no specific medication listed), check. We are not talking about incarceration for a few days. The statute allows the judge to order inpatient lock-down for up to six months. Then, typically, the County will petition for re-commitment for 12 months. For many people, the recommitment starts an infinite cycle from which there is no escape.
As Timon said in the Lion King, is everyone OK with this??? It is our position that they should not be.
Please, we can and must do better than this.
Marina Affo did a great job with this story about Andrew. We are especially pleased with her incorporation of some of Andrew’s writings in the story. Writing a great story, and having it published, was one of Andrew’s greatest dreams. This article is a start. I’m working on a book which will include legal analysis of system defects, and also Andrew’s perspective as one forced to live within that defective system.
SB 39, the Senate version of the expungement bill, passed out of committee. The House version passed out as well; so the bill will move forward. This is good news for nonviolent Wisconsinites saddled with life sentences for possession of small amounts of narcotic or other drugs. I’m referring to our prosecutors’ insistence on saddling people who struggle with addiction with misdemeanor and felony convictions for the crime of possessing drugs. If we recognize addiction as a disease, why do we make it a crime? The expungement bill won’t solve that problem; but at least addicts can do their time and be done. The way the law stands today, they are saddled with life sentences with collateral consequences that are wholly out of proportion to their offenses. The expungement bill would mean they still serve their sentences, but once they have done so their records can be cleared, so they have a shot at a fresh start.
We need to include the people who are being treated in our discussions of mental illness. Elyn Saks, an attorney and psychoanalyst, and also someone who has lived with schizophrenia her entire life, is a brilliant advocate for patients’ rights and elimination of inhumane treatment of the mentally ill. Her NYT best-selling book, The Center Cannot Hold, is a must read.
A federal court ruling will hold United Healthcare accountable for failing to provide coverage to a class of 50,000 people denied coverage for mental health-related claims. It’s rare for these giants to be challenged, so the opinion is a refreshing read.
Pennsylvania has now joined 46 other states that have adopted laws allowing “assisted outpatient treatment” (AOT) of people who are mentally ill but not dangerous to themselves or others. Rather, the standard is whether the court finds that a person is unlikely to survive safely in the community without supervision. We believe this standard is unconstitutionally vague. Further, while AOT is touted as being voluntary, the facts of how these cases are handled indicate otherwise. Certainly, that was true in Andrew’s case. See our blog post at http://andrewsvoice.org/involuntary-outpatient-commitment-whats-the-big-deal/
Kudos to Mental Health America @mhasheb https://www.mhasheboygan.org/for opposing this law and for articulating the very real dangers it poses to civil liberty:
People who are “coerced” into mental health treatment risk becoming alienated from support services, said Sue Walther, who heads the Mental Health Association of Pennsylvania.
“There are lots of studies that show this, about coercion, how forcing someone into a system they don’t want to be part of negatively impacts their willingness to go into it in the future,” Walther said.
The Mental Health Association was one of several mental health groups in Pennsylvania that opposed the passage of the law last fall.
Walther said the criteria for committing someone are too vague.
#MHA #mentalhealth #stopthemadness #VOICE
Since I began advocating for protecting civil liberty for the mentally ill, the comment I hear most often is this: “But what if we let them control their own treatment, and they go and shoot up a school?” Sadly, this is a widely-held misconception. The truth is that mentally ill people are far more likely to be the victims of violence than the perpetrators of it. As stated by one of the authors of the study, “Much of the limited research on gun violence and mental illness has focused on violence among individuals with severe mental illnesses or rates of mental illness among individuals arrested for violent crimes. What we found is that the link between mental illness and gun violence is not there.”
In January of 2019, Wisconsin Senator Alberta Darling introduced a bill that would make expungement of criminal records easier in Wisconsin. Wisconsin is the only state that requires expungement decisions to be made at the time of sentencing, rather than after sentences are completed. Only in Wisconsin are closed cases not eligible for expungement. Further, Wisconsin is one of a handful of states that limit expungement to defendants under the age of 25 (see the Public Policy Forum’s analysis, the source of this information, here: https://www.wpr.org/proposed-law-would-broaden-eligibility-criminal-expungement ) If this bill had been law a year ago, it could have saved Andrew’s life. As we said in his story, he was prosecuted for being a drug addict, and saddled with a felony conviction for possession of a very small amount of heroin. The collateral consequences of this conviction robbed him of his future. Sheboygan County prosecutors argued against expunging his record, meaning that serving time for the offense was not enough—rather, he was to serve a life sentence that included forever denials of educational, housing and occupational opportunities. He was understandably despondent regarding his circumstances. It’s time to change Wisconsin’s status as an outlier on this issue.
UPDATE: We just learned that AB 33, on expungement, is up for public hearing before the Assembly Committee on Criminal Justice and Public Safety tomorrow, Thursday, March 7. The hearing is 10:00 AM in room 225 Northwest of the Capitol in Madison. I urge anyone whose life (or whose loved one’s life) has been affected by a criminal record, especially a record related to convictions for drug use, attend and offer your perspective to the legislators. Wisconsin has the most restrictive expungement statute in the nation. This has created a whole subculture of people who, because of addiction, have been denied the ability to do their time and get on with their lives. Instead, they serve a life sentence of forever denials of education opportunities, job opportunities, and housing opportunities.