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Exploring the Link Between Crisis Hospitalization and the Criminal Justice System: Planting a Poisonous Seed

"We need more hospitals for the mentally ill and less jails." There are variations of this refrain, but it is utilized ad nauseam by well-intentioned advocates in the mental health community when it comes to the criminalization of mental health challenges. Is the sentiment accurate? As a general proposition, sure. But, as with most clichés, it does little beyond tapping the surface of the issue, while a more granular look would expose a much more complicated, and almost converse, relationship between crisis hospitalization and future arrests.


I don't enjoy coming across as cynical in this analysis, but the phrase itself is rooted in ignorance of the state of the crisis hospitalization system (both private and public) and a misconception about the impact it has on those who have experienced it as a patient. To illustrate my point, let's break it down into parts: (1) the practical realities of crisis hospitalization in a perfect world; (2) the realities of the crisis hospitalization system as it operates in our imperfect world; and (3) the impact crisis hospitalization has on an individual in the nascent stages of mental health treatment.


The Practical Realities of Crisis Hospitalization in a Perfect World


Every state in the Union has its own statutes governing the civil involuntary hospitalization of those deemed a danger to themselves or others as a result of their mental health symptoms. But, because of U.S. Supreme Court case law from the mid to late 1970s, each must limit hospitalization of this kind to the extent that an individual cannot be held against his or her will beyond the point that he or she doesn't meet those general criteria as a danger to themselves or others.


The impact of this "deinstitutionalization," as it is often labeled, is that the resulting crisis hospitalization has a very short duration in the vast majority of cases, as the crises themselves, as defined above, are often short-lived, even absent intervention. And while the overarching purpose of crisis hospitalization--to take a breath and to prevent something irreversible from happening--is an essential element of any responsible mental health legislative framework, the small window of time an individual spends in a crisis unit simply doesn't lend itself to meaningful and insightful treatment.


Take, for example, the administration of psychotropic medications. In almost every instance that I've observed, a crisis patient is confronted with the option (sometimes presented as more of a requirement) of taking some form of medicine to address her underlying symptoms. While forced sedation is sometimes utilized by the provider to defuse violent episodes, more often than not, force isn't necessary and the medications proposed are the same as those we might be prescribed on the outside: antipsychotics, antidepressants, mood stabilizers, etc. These might be offered in an oral or injectable form.


Any psychotropic drug takes time to produce the desired effect on symptoms associated with mental health challenges, and how long is a matter of the type of drug, the form in which it is administered, and the biologics of the individual to whom it is given. The injectable form of Abilify (an antipsychotic and mood stabilizer), for example, can produce positive effects on symptoms of agitation associated with schizophrenia and mania within a couple of hours; certainly a desirable outcome in the context of crisis hospitalization where such agitation is noted. But the full effects of even the injectable form can take two weeks or more, and with oral forms of the medication it might take even longer--outside the window of most crisis hospitalization timelines. In the case of antidepressants such as SSRIs, SNRIs, and atypical forms of the medications, it can be eight weeks or more before desirable effects are seen. And in any event, most providers would want to observe a patient for a matter of months before declaring success with any one drug.


This means the meaningful, thoughtful, and productive administration of meds is simply not fit for what amounts to about a week's period of time in a hospital with a provider who has never before met you and is almost certain to not be your provider upon discharge. It also means the lack of information a doctor faces in a crisis situation gives him or her little basis upon which the appropriate med might be chosen.


How does this pan out in the real world? It means many clients of mine who were subject to crisis hospitalization were given meds that had zero chance of having any meaningful positive effect within the time period during which they were hospitalized, and in dosages that were either too small or, in many cases, much too large (i.e. no time for titration). On the other hand, they almost all experienced the negative side effects of the medications that can often be felt from their initial administration. And, it is not at all uncommon for me to hear of patients who were abruptly taken off of medications they had been taking prior to hospitalization and switched to a different class of drug with little thought of how it might impact their wellbeing (hint: stopping an SSRI cold turkey is generally not a good idea). This helter-skelter approach is a product of taking psychiatry, which by its nature requires time and thoughtful consideration along with vast input from the patient, and placing it within the context of a crisis, where time and input are scarce, effectively defeating the possibility of any meaningful psychiatric treatment that might could be dovetailed into an outpatient setting.


To be fair, the hospitals would likely respond that they also incorporate psychotherapy into their regimen via individual and group sessions with licensed clinicians, as well as discharge planning that includes consideration of outpatient care. Which brings me to Part 2.


The Realities of the Crisis Hospitalization System as it Exists in Our Imperfect World


The genesis of the private crisis hospital system as we know it is likely around the time the United State Supreme Court decided two landmark cases aimed at involuntary hospitalization: O'Connor v. Donaldson 422 U.S. 563 in 1975 and Addington v. Texas 441 U.S. 414 in 1979. O'Connor stood for the notion that "a State cannot constitutionally confine, without more, a non-dangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends," while Addington set the standard of proof for involuntary hospitalization at a clear and convincing level of evidence needed to confine someone against his will.


While the idea that these cases were the seed of deinstitutionalization is highly debated between legal scholars, I think it's fair to say that it had a significant impact. Within a mere few weeks after the Addington decision was handed down, a former advertising executive named Alan Miller started Universal Health Services or UHS, a corporation overseeing private psychiatric hospitals that has grown to be one of the largest in the world.


While Friends Hospital, started by the Quakers in the early 1800s, earns the medal for the first private psychiatric hospital in the United States, the UHS model has been emulated by several other corporations over the last several decades, and partly explains why the private crisis hospitalization experience transcends state lines and laws. The business model is very consistent, and the laws as they exist in most states are conducive to maximized profits over a short period of time.


Why? Because the model cashes in on the need for involuntary crisis hospitalization laws and in many cases, a lack of accountability on the front end of the hospitalization experience. Indeed, UHS' own CFO at the time, Steve Filton, during a 2011 interview noted the advantages of the behavioral health industry over acute care in securing recession-proof profits: "Filton noted that in other segments of healthcare, consumers frequently delay care due to concerns about insurance coverage, out of pocket expenses, or concerns about job security. Not so with behavioral health, though.

'The ultimate decisions about care are often not made by the patients themselves,” he says, explaining that when a patient is admitted to care, someone else has determined the need for admission, such as a school or an acute care ER. “The decision is discrete from the finances involved.'” [See "Patience ... Patients: How Universal Health Systems became the top inpatient psychiatric services provider" by Behavioral Health Executive, published January 1, 2011; https://www.hmpgloballearningnetwork.com/site/behavioral/article/patience-patients-how-universal-health-systems-became-top-inpatient-psychiatric-services-pro.]


While I won't wade into my own personal opinions with respect to this model, the potential for both conflict and abuse by a system that profits off of a vulnerable population who's concerns are generally discounted due to their mental health challenges is clearly present. On top of that is the aforementioned absence of accountability during the initial week's period of hospitalization. Here in Georgia, while the statutes offer mechanisms for judicial review at all stages of hospitalization, they are rarely utilized, and most Courts with jurisdiction here don't even realize they have it at the early stages. Only upon application for hospitalization beyond the week's time do courts ever get involved.


But, extended hospitalization for crisis patients is rare in the both the private and public systems, and especially so in the private world. Signing off on such hospitalization requires judicial oversight in every case per the Supreme Court due process holdings, but also by insurance as a medical necessity. Because scrutiny of such hospitalizations is quite strict, it makes a week-long average stay the norm, with all of the attending problems with such short stays as mentioned above. And without any accountability, the corporate systems are able to make substantial profits without anyone getting in their hair and questioning the appropriateness (1) whether the individual actually meets criteria for involuntary hospitalization; and (2) the standards of care provided in that setting.


Furthermore (and without any comment as to how the laws were written in this way, but I have my suspicions), the statutes here in Georgia are rife with buffer periods of 24-72 hours, with weekends and holidays excluded from the timeline, for any decisions that might be made by a hospital regarding discharge, transfer to voluntary status, even requesting a form for discharge application (they have 24 hours to get it to the patient!). By the time a hospital uses up its buffer periods with weekends excluded, they've already been able to bill insurance for the week period that fits their business model.


In 2020, UHS settled with the Department of Justice for a monetary penalty after a DOJ investigation found, in part, that UHS had committed Medicaid fraud, applying for reimbursement of costs for individuals who did not meet criteria for involuntary inpatient hospitalization but were hospitalized all the same. While UHS denied the findings as part of its settlement, the allegations are identical to those relayed to me by patients and families on a weekly basis, and they are no different in the case of hospitals run by other corporate umbrellas, be it Acadia, US Health Vest or others.


The Impact Crisis Hospitalization on an Individual in the Nascent Stages of Treatment


Understanding the impact of the experience discussed above on an individual exposed to it requires empathizing with that person and having some basic understanding of what it's like, on multiple levels, to wrestle with mental health challenges.


Start with the stigma that comes with any diagnosis. I recall, in 2011, when I first met with a psychiatrist to talk about medications for depression, for which I'd started to realize I'd suffered from for at least 18 months leading up to the visit. To that point, I'd been practicing law in this field for at least 6 years, and for 7 years total. I spoke to my clients condescendingly when it came to their meds, telling them they were "sick" and that, if they would just take their medications, everything would be better for them. And yet, when I came to the realization that I might need them myself, I was terrified. Would my personality change? Would my mind feel different in a bad way? I needed to know everything there was about antidepressants, how they worked, and what it felt like from the people who'd taken them.


So I researched. A lot. I read clinical studies on various selective serotonin reuptake inhibitors (SSRIs), their cousins, serotonin and norepinephrine reuptake inhibitors (SNRIs) and atypical antidepressants. I tried to understand their respective mechanisms of action to the extent that we know them. I wanted to know the reported side effects. And, I went to forums where individuals who had taken the medications described how they felt, how long they took to work, and how it affected their symptoms.


After weeks, I ultimately decided on Wellbutrin, an atypical antidepressant, as the medication I was willing to try. When I met with my psychiatrist for the first time and we began to discuss medications, i told her that I wanted to try Wellbutrin first. Her response was to tell me that she'd rather start me on Prozac, an SSRI, before we tried anything else. I told her I'd already researched Prozac and was more inclined to try Wellbutrin because of reported side effects to SSRIs I didn't want to experience. She was adamant that she would not start me on Wellbutrin, so I told her: "If you don't let me try Wellbutrin for this, I'm walking out of here and taking nothing." She ultimately relented and gave me a prescription for the drug I wanted, but it made me wonder that if my wishes for what I was going to be putting in my body were so callously disregarded by my own doctor, how much more difficult might it be for someone suffering from more obvious symptoms of challenges like schizophrenia or Bipolar 1, especially in the crisis setting?


Indeed, this is the experience described to me by almost everyone I've ever come across who has been through crisis hospitalization. Their wishes when it comes to what they put in their bodies are summarily ignored, without discussion. They are often intimidated (via empty threats to hospitalize longer) into taking whatever is put in front of them, with no discussion as to the drug's mechanism of action, what side effects one might experience, or what minimal dosages might still be therapeutic. And they are ignored because they are deemed to not know what's best for them, in light of their "illnesses."


On top of the stigma are the equivalency of involuntary hospitalization to incarceration for criminal offenses. It's hard to differentiate the two when one's liberty is being restrained in both instances, and where the ability to make one's own decisions is placed second (or worse) to the safety of other patients and staff, even when such concerns might not be warranted based on the clinical presentation of the patient.


Imagine how this experience affects someone who is just being introduced to a mental health treatment structure? It is undoubtedly negative, and it smears the lens through which they see mental healthcare moving forward. They assume they will be ignored when it comes to what they put in their body. They'll be considered sick and unable to make their own healthcare decisions. Any false move with a provider might land them right back in a facility against their will. It completely chills the desire to engage with well-meaning and effective outpatient providers, and it's no wonder that it results in a longer period of time before meaningful stabilization of that individual's mind can be achieved.


And yet, over and over again in the criminal system, once a person in this position often gets wrapped up in it, I hear from judges, prosecutors, and even defense attorneys (like me back when I started) wondering why a person won't take meds, won't go to his appointments, won't just accept they're sick and get help.


There's a scene from the 1989 movie, Indiana Jones and the Last Crusade, where Indiana is enduring trials he must pass in order to reach the cave where the Holy Grail is kept. The final trial involves Indy standing at the precipice of a bottomless chasm, with no visible way to get across. From a distance, his father, played by Sean Connery, is urging him to "believe." Ultimately, Indy takes a huge step out into the darkness and...he lands on an invisible beam that spans the entire chasm. He moves across it and, once he reaches the other side where the cave sits, scatters some sand across to reveal the solid path.


For men and women who have been through the crisis system, the blackness of the chasm is one into which they've already fallen, experiencing the pain, ignorance, and traumas of such hospitalizations. They're being urged by those who haven't experienced it to step into it again and again, and they can't see the path on which they might cross it. For those of us in a position to be the encourager, the one who urges them to cross a path of potential pain, we HAVE to understand things from their side. Only then can we start to help them approach mental health care from a positive angle and help them change their paradigms altogether. So long as crisis hospitalization is viewed as the start of meaningful treatment, as opposed to the trauma it truly is, we'll continue to lose the war.

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