Expanding Civil Commitment Laws Is Bad Mental Health Policy

HEALTH AFFAIRS: Morgan C. Shields and Ari Ne’eman, April 6 2018

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In response to last month’s devastating school shooting in Parkland, Florida, some—including President Donald Trump—have called for an expansion of civil commitment laws to make it easier to institutionalize people with psychiatric disabilities. A week after the shooting, the President said: “Years ago, we had mental hospitals, mental institutions, we had a lot of them and a lot of them have closed. Some people thought it was a stigma. … Legislators thought it was too expensive…Today, if you catch somebody, they don’t know what to do with them. He hasn’t committed the crime, but he may very well and there’s no mental institution, there’s no place to bring them. And we have that a lot.” 

Broward County Sheriff Scott Israel echoed President Trump’s remarks, calling for an expansion of Florida’s civil commitment statute—the Baker Act—to make it easier to involuntarily commit an individual on the basis of social media posts.

Expanding civil commitment and mental health institutionalization is a convenient tool for politicians seeking to deflect public pressure for gun control laws. And yet, while such measures are politically convenient, they are far from an effective solution to the challenges of mental illness or gun violence.

A recent comprehensive analysis from the Bazelon Center for Mental Health Law found no relationship between a state’s available psychiatric hospital beds and homicides involving guns. This should not be surprising—research has found that only 3 to 5.3 percent of violent crime is attributable to serious mental illness. Even this small percentage may be better explained by substance abuse and neighborhood factors more strongly associated with violent crime

Expanding civil commitment and institutionalization would not be a useful tool for improving public safety and would also fail to help people with mental illness. Such measures would turn back the clock to a time when individuals could be hospitalized without their consent, even if they did not pose a danger to themselves or others.

Expanding Civil Commitment Laws Will Not Help, And Might Harm

Civil commitment is one of the only situations in which constitutional rights can be deprived without a crime having been committed. Therefore, policymakers should only consider loosening civil commitment statutes if doing so offers substantial benefits to the patient, society, or both. As discussed above, the evidence does not indicate that expanding civil commitment will benefit society. Similarly, there is little evidence that inpatient psychiatric care is effective for individuals—and there is some evidence that it can be harmful. Journalists have been undertaking needed work in this space, covering human rights violations, fraud, and retaliation towards whistle blowers within psychiatric facilities. These stories have spanned nonprofit, government, and for-profit firms, but many have focused on the largest supplier of psychiatric beds in the country, Universal Health Services, Inc. (UHS)

Recent investigative reporting of UHS highlights the potential negative consequences of expanding civil commitment. UHS has built annual revenues over four billion from psychiatric care. In 2016, UHS’ profit margin attributable to behavioral healthcare was 22.2 percent, while adding 437 new psychiatric beds. According to a yearlong investigative report from Buzzfeed News, these profits have been achieved in part by placing considerable pressure on physicians and other employees to fill beds by any method necessary, including exaggerating symptoms in order to present individuals as suicidal. Not only were these patients subjected to unnecessary care, but the care they received could have caused physical or psychological harm. The consequences of these experiences could be cascading, as negative experiences within inpatient psychiatric facilities might lead to reduced trust and engagement with the health care system, resulting in poorer health outcomes.

Reports of patient harm by companies like UHS should be of no surprise to health services researchers. UHS operates within a market characterized by tremendous information asymmetry. Patients’ voices are discredited, and they are rarely given much choice over their treatment options. Regulators that oversee companies like UHS might fear shutting down facilities due to perceived bed scarcity. Some of the fraud investigations focused on UHS found patterns of unnecessarily admitting individuals and holding patients longer than medically necessarily. If civil commitment laws were to be loosened, it is unclear how profit-maximizing players would exploit such statutes for financial gain and what cost that would bring to patients and society. 

Overall, while inpatient psychiatric care might provide some benefits to certain patients, there is reason to be skeptical of proposals to expand civil commitment laws and subject individuals to such treatment against their will.       

The Need For Stronger Community Supports  

The early twentieth century saw a dramatic rise in institutional facilities, from 118.2 per 100,000 population in 1890 to 585 per 100,000 in 1940. Since the mid-twentieth century, however, we have seen a significant drop in institutional beds. This change reflects progression from the era of mass institutionalization, which was motivated, in part, by the eugenics movement, which sought to remove people with disabilities from society. As the shift away from institutions progressed, President Kennedy, inspired by his sister Rosemary Kennedy (who had an intellectual disability), shepherded the passage of the 1963 Community Mental Health Act. It is no coincidence that deinstitutionalization coincided with the civil rights movement of the 1960s—each social movement focused on the expansion of rights to historically marginalized groups. 

Still, we have seen a critical failure in the construction of the community mental health system. As de-institutionalization proceeded, the Carter administration laid out and passed into law a comprehensive system of community-based supports, leading to the Mental Health Systems Act of 1980. Unfortunately, just as the law would have come into effect, the Reagan administration repealed the legislation and block-granted mental health care funding to the states, significantly reducing resources for community-based care. For people with mental illness, community care did not fail—it was never meaningfully attempted.

Conclusion

If we are to have a conversation about inpatient psychiatry, we should be more responsible with our focus. Yes, there is much work to be done regarding emergency psychiatry, but in our view, none of it involves the expansion of civil commitment laws. Efforts should focus on crisis prevention and diversion. We also need to increase evidence-based inpatient mental health care. To do so, we first need to improve our data monitoring. For example, psychiatric patients are often excluded from national surveys of quality. Rather than engage the courts in coercion, government entities need to grapple with their role in transparency (measuring the patient experience and adverse events, in particular), identifying best practices for delivering safe, effective, and patient-centered care, as well as enforcing regulations and patients’ rights. 

This work needs to be done, and not because there is a link between mental illness and violence. If President Trump’s comments about making greater use of “mental hospitals” were to become actionable, we have every reason to expect such policies would hurt marginalized individuals. More generally, we would be moving away from an inclusive society by “othering” certain groups for political and financial gain. Doing so may be good politics—but it is terrible mental health policy.

Authors’ Note

The authors would like to thank Dr. Meredith Rosenthal of the Harvard T.H. Chan School of Public Health for her thoughtful feedback on an earlier draft.

SOURCE: https://www.healthaffairs.org/do/10.1377/hblog20180329.955541/full/

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