Five-Point Action Plan for President Obama to Reduce Violence by the Mentally Ill

by DJ Jaffe

(Originally published in National Review 12/17/12)

President Obama said the federal government has to do something meaningful to prevent future shootings, like the recent massacre of 26 children and adults at a school in Newtown, Connecticut. Here is what the federal government can do to prevent violence related to mental illness:

1. Start demonstration projects of Assisted Outpatient Treatment (e.g. Kendra’s Law in New York, Laura’s Law in California) throughout the country. AOT allows courts to order individuals with mental illness to stay in treatment as a condition of living in the community. It is only applicable to the most seriously ill who have a history of violence, incarceration, or needless hospitalizations. AOT is proven to keep patients, the public, and police safer. The Department of Justice has certified AOT as an effective crime-prevention program. But mental-health departments are reluctant to implement AOT because it forces them to focus on the most seriously ill. Demonstration projects would help mental-health departments see the advantage of the program. (For why some people with serious mental illness refuse treatment, see this. See also how Assisted Outpatient Treatment laws (Kendra’s Law in NY and Laura’s Law in CA) keep patients, the pubic and police safer

2. Write exceptions into the Health Insurance Portability and Accountability Act (HIPAA) so parents of mentally ill children can get access to medical records and receive information from their children’s doctors on what is wrong and what the children need. Right now, for reasons of “confidentiality,’ doctors won’t tell parents what is wrong with their kids or what treatment they need, even as they require parents to provide the care. As a result, when a child goes off treatment, the parents’ hands are tied. They have all the responsibility to see the person is cared for, but none of the information or authority to see it happens. We have to change the patient confidentiality laws so parents can help prevent tragedies rather than become a punching bag for the public when something horrific happens.

3. End the Institutes for Mental Disease (IMD) exclusion in Medicaid law. This provision tells states: “If you kick someone out of the hospital, we will pay you 50% of the community care costs.” This causes states to lock the front door of hospitals and open the back door, regardless of whether the community is an appropriate setting. If you have a disease in any organ of your body, other than the brain, and need long-term hospital care, Medicaid pays. Failing to pay when the illness is in the brain is federal discrimination against persons with mental illness. I wrote on Medicaid discrimination for the mass market in the Washington Post, but John Edwards wrote a more scholarly paper on ending the IMD Exclusion. Relatedly, a proposal made by former vice-presidential candidate Ryan, under which Medicaid was block-granted could solve this problem.

4. Create a federal definition of serious mental illness, and require that the vast majority of mental-health funding go to it. Due to mission creep and the tendency to diagnose normal reactions of people as a mental “health” issue, government agencies now claim that 40 percent or more of Americans have a mental ‘health’ issue. Worst, most mental “health” funding currently goes to this group of the highest functioning. But only 5 to 9 percent of Americans have a serious mental illness. That’s where we should be spending our money — on the 5 to 9 percent who are most likely to become violent and need help, not the worried well. There is more than enough money in the mental-health system to prevent Newtown-type incidents, provided it is spent on people who are truly ill, not the worried-well. I wrote on this for a mass market on Huffington Post, but a much more scholarly paper was written by Howard H. Goldman and Gerald N. Grob. With the fiscal cliff approaching, prioritizing the most seriously mentally ill for services is more important than ever.

5. Eliminate the Substance Abuse and Mental Health Services Agency (SAMHSA). SAMHSA is the epicenter of what is wrong with the American mental-health system. SAMHSA actively encourages states to engage in mission creep and send the most seriously ill to the end of the line. They provide massive funding to organizations that want to prevent mentally ill individuals from receiving treatment. They have nothing positive to show for their efforts in spite of a massive bureaucracy that meets and meets and meets and never accomplishes anything. I wrote on this for a mass market in the Washington Times and Huffington Post. But Amanda Peters wrote a terrific scholarly piece on SAMHSA for a law journal.

If Obama is serious about wanting to do something, the steps above would be the best first step. True, the mental-health industry may throw a fit as they find themselves obligated to serve the most seriously ill, but it’s the right thing to do. Anything else could be deadly.

Here is what states should do.

States should make greater use of Assisted Outpatient Treatment, especially for those with a history of violence or incarceration. AOT allows courts to order certain mentally ill people to stay in treatment as a condition of living in the community. AOT works. New Yorkers remember Larry Hogue, the “Wild Man of 96th Street,” who kept getting hospitalized, going off meds, terrorizing neighbors, and going back into the hospital. Connecticut does NOT have an AOT law on the books (see these facts about the Connecticut mental-health system), and we can’t say for sure if it would have helped in this case, but all states should have one to prevent similar incidents.

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States should make sure their civil-commitment laws include all the following, not just “danger to self or others: (A) Is “gravely disabled”, which means that the person is substantially unable, except for reasons of indigence, to provide for any of his or her basic needs, such as food, clothing, shelter, health or safety, or (B) is likely to “substantially deteriorate” if not provided with timely treatment, or
(C) lacks capacity, which means that as a result of the brain disorder, the person is unable to fully understand or lacks judgment to make an informed decision regarding his or her need for treatment, care, or supervision.

• When the “dangerousness standard” is used, it must be interpreted more broadly than “imminently” and/or “provably” dangerous.

State laws should also allow for consideration of a patient’s record in making determinations about court-ordered treatment, since history is often a reliable way to anticipate the future course of illness. (Currently, it is like criminal procedures: what you did in the past presumably has no bearing, so the court may not know past history when deciding whether to commit someone. In fact, there are ways to know which mentally ill individuals become or are likely to become violent.)