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Breaking the ‘revolving door’ of people with serious mental illness in the courts

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Posted at 6:10 PM, Jul 27, 2022
and last updated 2022-07-27 19:13:46-04

People with serious mental illness sometimes find themselves in what’s come to be called a “revolving door” of the criminal justice system – cycling in and out of courtrooms, incarceration, and involuntary hospitalization.

There are measures in place to help curb the issue, but gaps remain.

An attempt was made to close one of those gaps in 2017 when Tim’s Law was passed. The goal of the law was to allow Kentucky judges to mandate assistant outpatient treatment for some with serious mental illness.

“We know that people who are seriously mentally ill often are hospitalized, stabilized then released back into the community where they stop taking their medication and they don’t comply or adhere to treatment,” Jefferson County District Court Judge Stephanie Burke said. “And then they decline and decompensate and they’re right back in the hospital.”

A lack of clarity in the language of the first version of Tim’s Law made it difficult to implement, Burke said. So she helped revise the law to make it clearer, and to widen the range of people who would fit the criteria for court-mandated care.

“Our issue was that the bill would not withstand scrutiny from a higher court if it were reviewed,” Burke said. “So the language needed to be cleared up.”

Kentucky is the 47th state to adopt assisted outpatient treatment. The revision to the law allows courts to look not only at previous hospitalizations but also previous arrests and incarcerations when determining whether someone would qualify for court-ordered outpatient treatment, Burke said.

In practice, Tim’s Law can be used for a very small percentage of the population – about 1.6%, Burke said. But it’s a part of the population that has the highest chance of coming into contact with law enforcement and have repeat hospitalizations or arrests, she said.

The process begins when a family member, law enforcement officer, or other concerned party makes a petition to district court. A judge then decides whether or not to mandate outpatient care.

For those involved, this type of mandated care has been shown to reduce homelessness by more than 74 percent, incarceration by more than 77 percent, and hospitalization by as much as 82 percent, Burke said.

“These are numbers that we cannot just ignore, and not take those numbers and say ‘we need to do this, it’s more humane, it’s the least restrictive measure of dealing with these individuals,’” Burke said.

There are other programs in place aimed at helping people who struggle with mental illness and find themselves charged with a crime.

Mental Health Court

Fayette County’s Mental Health Court is a diversion program out of the county’s district court that allows some with mental illness to go through a voluntary program and ultimately have their non-violent misdemeanor charges dismissed.

The program is funded by the Lexington-Fayette Urban County Government, and it’s run by NAMI Lexington, a local chapter of a national nonprofit.

Through the program, people charged with non-violent misdemeanors learn coping skills and ultimately have their charges expunged if they graduate.

A judge has to sign off on every participant, but people come to the program and learn about it in a number of ways, said Jennifer Van-Ort Hazzard, the mental health court coordinator with NAMI Lexington.

“My favorite is ‘I heard from a guy in jail about mental health court so I told my lawyer,’” Van Ort-Hazzard said. “Those are great because those folks are ready and willing to have those discussions.”

The program is entirely voluntary and it’s up to participants to agree to take part – and to stick with it.

“The premise of our program is if you’re not going to choose to participate, down the line you’re not likely to choose to engage,” Van Ort-Hazzard said. “So it wouldn’t make sense for us to spend that time together.”

Emergency Detention

In the Lexington Police Department, most officers have had crisis intervention training that allows them to recognize when someone needs mental health help, Assistant Fayette County Attorney Heather Matics said.

Matics is the prosecutor for Fayette County’s Mental Health Court and part of the city’s crisis intervention team. She trains police officers in crisis intervention in Lexington and around the region.

In extreme cases where a person is found to be a danger to themselves or others, police may determine that emergency detention is necessary. But taking that person to a hospital doesn’t always mean they’ll get the help they need.

“The problem is, that statute written in Kentucky requires the hospitals to find there's no less restrictive place to treat them and that they'll benefit from treatment,” Matics said. “And so a lot of people are … taken by emergency detention to the hospital then they get out 45 minutes later.”

This sometimes happens because hospitals determine that the person doesn’t have an “acute need” for the mental health equivalent of emergency room treatment, Matics said.

“The problem is, if you have someone who is seriously mentally ill, maybe they have economic limitations, maybe they don't have insurance,” Matics said. “You may say, well he can go to outpatient therapy – does he have a car? A provider? A way to pay for treatment? Does he even understand that he needs the treatment at this point?”

The “revolving door” problem largely affects the chronically mentally ill, like people who are homeless and haven’t been medicated for years, Matics said.

“It frustrates me, frustrates my officer friends and it frustrates my partners in the mental health community,” Matics said. “And there's a lot of talking in the community of what can we do to take to the legislature, to maybe reconsider how that statute is written. Because it traps so many people in the revolving door between the street, the jail, the court system, and maybe a side trip here and there to the hospital. they never truly receive the treatment they need.”

Incompetent to stand trial

Even with the efforts to break the so-called “revolving door” of people who end up repeatedly in courtrooms and jails because of mental illness, gaps in the system remain.

One of those gaps impacts people who are found incompetent to stand trial, who have charges dismissed repeatedly, and sometimes find themselves back in front of a judge with new charges again and again.

“Without them, again, willingly being able to engage in some sort of programming, and then not crossing into that threshold of harm to self or others, they really just sit in that gray area of unwellness,” Van Ort-Hazzard said.

There’s a hope that being found incompetent to stand trial would make someone realize they might need to seek mental health help, but that isn’t always the case, Van Ort-Hazzard said. Some people’s mental state is such that they don’t realize that they might have a problem, she said.

“There is an ability to be told ‘you’re not competent to be held,’ actually watch your legal charges be dismissed, and then go home like everything is fine,” Van Ort-Hazzard said.

In those cases, it can fall to the community to make a difference.

“There’s not much anyone other than superb neighbors, or community members or friends or anybody who might start to build rapport with that individual can do … until they can encourage them to engage in something.”