By Dave Ranney, September 17, 2015
An informal coalition of Kansas mental health advocates is close to proposing legislation that could prevent hundreds of people with serious mental illnesses from ending up in jails, emergency rooms or a state-run hospital.
“This has the potential to be one of those win-win-win situations that, frankly, in my 38-year career I can honestly say doesn’t come along very often,” said Bill Rein, commissioner of behavioral health services at the Kansas Department for Aging and Disability Services.
“If this is done right, it would be better for the person who’s in crisis, better for law enforcement, better for the courts,” he said. “Better for everyone.”
The proposal would let Kansas communities open secure “receiving centers” that would be allowed to hold people who appear to be seriously mentally ill and in crisis for up to 72 hours. These admissions would be involuntary, and patients would not be allowed to leave early unless they are assessed as unlikely to harm themselves or others.
Under current law, involuntary patients cannot be held for more than 24 hours — 48 hours on a weekend — without first being taken to court and having a judge decide whether they pose a danger to themselves or others.
Oftentimes, the patients remain in jail or are taken to the state hospitals in Larned or Osawatomie because they are in crisis, uncooperative and have nowhere else to go.
“What happens to these people now is absolutely ridiculous,” said Wyandotte County District Court Judge Kathleen Lynch, who has taken an active role in drafting the proposal.
Most people in mental health crises, she said, can be stabilized within 72 hours. Depending on their condition, they then would be released, allowed to remain at the receiving center or sent to one of the state hospitals.
“The only time they would come to court would be if they were so acute, they didn’t stabilize within 72 hours,” Lynch said.
‘Out the back door’
In Kansas, three community mental health centers — Valeo Behavioral Health Care in Topeka, COMCARE in Wichita and Wyandot Mental Health Center in Kansas City, Kan. — have overnight crisis intervention programs for patients who agree to be voluntarily admitted. But there’s nothing to stop them from leaving.
“After 15 minutes, they can walk right out the back door,” Lynch said. “But they’re still in crisis, so they get arrested again, they get taken to jail where — if they haven’t already assaulted a law enforcement officer — they assault a corrections officer at the jail, because at this point they’re psychotic and everybody they’re in contact with is setting off all their triggers.”
The next day, a judge is required by law to rule on whether the patient should be released, remain in jail or be sent to a state hospital.
“So here’s a guy who, if he could have been held for 72 hours in a receiving center, would have been stabilized, set up with a treatment plan with his community mental health center and sent home,” Lynch said. “Only now he’s racked up one, maybe two felonies before he’s hit the courthouse door.”
This scenario became more challenging earlier this year when KDADS capped admissions to Osawatomie State Hospital after federal officials cited the facility for having too many patients, not having enough staff and not doing enough to prevent suicidal patients from hanging themselves.
According to KDADS officials, the mandated renovations should be completed in late October or early November, and the current 146-bed limit on admissions will return to 206 beds.
“It’s been really hard for everyone,” said Julie Solomon, chief strategic management officer at Wyandot Mental Health Center. “The state hospital is supposed to be there for the worst-case involuntary commitment cases. But when you’re in an emergency room with someone who’s combative and you call the hospital and you’re told, ‘Sorry, we’re full. There’s no room in the inn. Please, please, please don’t send them here,’ that means the system is broken.”
“People are not being treated the way in which their disease needs to be treated,” she said.
Though Solomon, Lynch and Rein are active in the coalition creating the proposal, each said the group does not have a formal leader.
“There are a lot of people behind this,” Rein said. “A lot of different groups.”
The proposal will not be soft on crime, said Bill Cochran, a captain with the Topeka Police Department who also is part of the coalition creating the proposal.
“If you commit a serious crime, you’re going to jail,” Cochran said. “That wouldn’t change.”
But someone who is suspected of “nuisance crimes” could be taken to an involuntary crisis-stabilization facility if one is available, he said.
“What’s being proposed will probably have the most impact in the bigger metropolitan areas because that’s where the facilities are,” Cochran said. “There’s nothing in the bill that makes anybody do this. It just gives them the option.”
Some concerns about proposal
Groups that advocate for civil liberties and for the mentally ill are divided on the proposal.
“We’ve not yet taken a formal position on what’s being proposed, but we have been in on the discussion,” said Rick Cagan, executive director at the National Alliance on Mental Illness – Kansas. “This will be addressed by the NAMI (Kansas) board, I’m sure. Some key members are in support of it.”
Micah Kubic, executive director of the American Civil Liberties Union of Kansas, welcomes the bill’s potential for “reducing the concentration of folks with mental illness who are incarcerated” but said the organization has some questions about the proposal.
“Anytime there’s an act of detention, we’re concerned,” Kubic said. “We’d want to make sure that having this in place would not give someone the ability to claim they were holding an individual for a mental health evaluation when, in reality, they’re being held for something else.”
Rocky Nichols, head of the Disability Rights Center of Kansas, said he’s likely to testify against the bill.
“We don’t know how the final language is going to read, but at this point it’s our position that it’s already too easy to involuntarily civilly commit someone with a mental illness,” Nichols said. “What’s being proposed would make it even easier.”
A more sensible approach, he said, would be for the state to create a robust network of crisis intervention services that would reach people with serious and persistent mental illnesses before their encounters with police.
“The way the law is now, you can involuntarily civilly commit someone who poses substantial harm to themselves or others in the ‘reasonably foreseeable future,’” Nichols said. “That’s a very low bar. In most other states you have to have ‘imminent risk.’”
Rep. John Rubin, a Republican from Shawnee, is chairman of the Legislature’s Joint Committee on Corrections and Juvenile Justice Oversight, which is scheduled to meet Nov. 2-3.
“I’m very much aware of the issues that are behind this, and I’m very supportive of what’s being proposed,” Rubin said. “We’re going to talk about this at our next meeting.”
Laws established in Arizona, Texas
The Kansas proposal likely will be similar to laws enacted in Arizona and Texas.
“My advice to Kansas? Do it, absolutely,” said Liza Jensen, executive director with the National Alliance on Mental Illness office in San Antonio.
“We’ve seen more people who should be in treatment being sent to treatment,” she said. “We’ve seen jail diversions increase to where people are going to jail for the right reasons, not because they’re mentally ill. And law enforcement has saved a ton of money.”
The Texas law, Jensen said, includes several provisions meant to prevent undue detention.
“It promotes patients’ rights and it protects the families who care for them,” she said. “But the most important thing in all this is jail diversion — getting them to a place where they can be evaluated and get treatment instead of being taken to jail.”
Similar provisions will be in the Kansas bill, Lynch said, noting that police will be required to file affidavits outlining the events before an individual is brought to the facility.
Within an hour, the officer’s assessment must be upheld by a “mental health professional” at the facility. This assessment will be subject to a second, independent assessment within 24 hours.
Within the initial 72 hours, patients would be released as soon as their assessments indicate they are no longer likely to harm themselves or others. After 72 hours, those thought to still be at-risk would be subject to a court hearing.
“This would go a long way toward decriminalizing mental illness,” said Solomon, of Wyandot Mental Health Center. “The way it is now, we have far too many people winding up in jail for very minor crimes.”
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