Fighting Involuntary Outpatient Treatment: Next Steps for Change

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.

AOT: A Failed Paradigm of Care

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.

How would Jesus be assessed using currently accepted criteria for mental illness diagnosis?

Depressed Jesus

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):
1. Delusions
2. Hallucinations
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.

Sheboygan Press Front Page Article About Andrew’s Story

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.


Expungement Bill Moves Forward

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.

Ellyn Saks TED Talk

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.

In scathing ruling, judge rips insurer for putting ‘bottom line’ over patients’ health

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.

Dangerous Trend Toward Involuntary Commitment of People Who Are Not Dangerous

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

Kudos to Mental Health America @mhasheb 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

No Link between Gun Violence and Mental Illness

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.”

Involuntary Outpatient Commitment: What’s the Big Deal?

The term “involuntary civil commitment” covers more than just forced incarceration at the psychiatric ward of a hospital or mental institution. In substantially increasing numbers, Wisconsin residents have been subjected to outpatient involuntary commitments, which more often than not are extended year after year on little more than a rubber stamp, all at taxpayer expense.

On the surface, it may seem as though the outpatient involuntary commitment is only a minor intrusion on the rights of the “subject,” as the person is referred to in the applicable statute. After all, the individual is free to live and work in the community, subject only to the terms of the involuntary commitment order. Those terms typically require that the individual comply with any terms of treatment that might be imposed by the treating psychiatrist, including involuntary administration of psychotropic and other medications, most of which have debilitating and often irreversible side effects. Additionally, the standard involuntary commitment order requires the individual to abstain from non-prescribed drugs and alcohol, and includes a lifetime ban on possession of firearms. And the order gives the treating psychiatrist troubling authority to order arrest and incarceration of the “subject” if the doctor—without inconvenient limitations of due process of law—determines that the conditions of the order have been violated.

A psychiatrist in conversation with me once likened the involuntary outpatient commitment to “training wheels;” simply a “safety net” to assure that a person diagnosed with a mental illness would not stray from the rigors of prescribed treatment. Such a description reflects a lack of understanding of the very significant intrusion involuntary commitment represents to the civil liberties of the individual so restricted. It is difficult for a person accustomed to freedom—one who has always had the ability to go about his or her business unfettered—to appreciate the massive intrusion represented by involuntary commitment, be it inpatient or outpatient.

Imagine a scenario where one of us not subject to an involuntary commitment is driving to a doctor’s appointment. Our car stalls in traffic. We pick up our cell phone, dial the doctor’s office, and explain the situation to the receptionist. We apologize, and re-schedule our appointment. For Andrew, as the “subject” of an involuntary outpatient commitment, the situation is much different. His car stalls in traffic on the way to his appointment; he calls the only number he has been given for the doctor’s office; he listens to a pre-recorded message, which then goes to dial tone with no opportunity to speak to a person or leave a message. He deals with the stalled vehicle and goes home. Then, he waits for the inevitable … a squad car arrives at his house, lights flashing. Curious neighbors come to their porches and windows to see what is going on. The officers pound on the front door, in full view of the neighbors. Then, when Andrew emerges, he is hand-cuffed, thrown into the back of the squad car, and delivered to the lock-down psych ward, where he is shot up with medication and held for 72 hours, risking loss of his job, loss of his home, loss of his pets, and other significant consequences which are of no apparent concern to the County or its appointed doctors.

Here are Andrew’s words on the subject, taken from the transcript of his December 2, 2018 recommitment hearing:

“I feel [the commitment] is unnecessarily restrictive…You know, those appointments they said that I missed. I don’t feel that I got any type of proper notice to come and show up. I got arrested almost the day after the appointment [in] both cases. The cops showed up at my house—in front of my house and made me look bad in front of my neighbors and came and cuffed me and brought me to K-1. [Note: K-1 is a reference to the lock-down psychiatric unit at Aurora Memorial Hospital in Sheboygan, WI.] Somebody could have called me and asked me to come to K-1. I would have showed up, you know…[They] make it sound like it’s all really nice and good and helpful and everything, but it’s not really the same when you’re going through it on the other side. And, you know, I mean, I’m trying—I do my best to comply with all the rules and everything, but to me it seems like a never-ending process. Honestly, like, some aspects of it seem borderline unconstitutional.”

Andrew was right. He had a constitutional right to due process of law, which the current system denies to him and others similarly situated when doctors arbitrarily order “subjects” to be arrested and incarcerated for perceived minor violations of the terms of the commitment order. Further, he had a constitutional right to application of the “least restrictive alternative” in all aspects of his treatment. Clearly, picking up the phone to ask him to appear for a missed appointment is less restrictive than the heavy-handed arrest, complete with flashing lights, door-pounding, handcuffs and incarceration.

We can and must do better than this. #wecanandmustdobetter