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Patients’ Rights Questions Hang Over Mental Health Debate

Congressional efforts to overhaul the mental health system have more momentum than at any time since the 2012 shooting at a Newtown, Conn., school by an unbalanced young man. But a push to tie millions of dollars in funding to states’ willingness to force some people with serious illnesses into outpatient treatment programs is complicating prospects for a consensus.

That could mean more gridlock on an issue that has been subsumed by debates over gun violence and partisan fights over whether it makes more sense to shore up the existing system with the aim of diagnosing mental illness earlier.

Leading measures in the House and Senate seek to address access, treatment and privacy. The House effort (HR 2646) is intended to reward states that allow courts to order some people with conditions such as paranoid schizophrenia into community treatment — a tool supporters say is critical to avert costly hospitalizations, jail time and homelessness.

Pennsylvania Republican Rep. Tim Murphy, a strong backer of so-called assisted outpatient treatment, wants to provide the 45 states with laws permitting such programs with a 2 percent bonus on top of the mental health block grant money they receive from the Department of Health and Human Services. That would spread an additional $8.6 million among the states and the District of Columbia based on fiscal 2015 enacted levels, according to Murphy’s office.

The approach is a step down from a 2013 bill Murphy introduced that required states to have such laws on the books in order to receive any mental health block grant funding. But it hasn’t won over the authors of the Senate version (S 1945), including Connecticut Democrat Christopher S. Murphy, whose home state is one of the five holdouts.

Instead, the Senate measure sponsored by Murphy and Louisiana Republican Bill Cassidy would provide a 2 percent funding bonus based on outcomes related to mental health. The duo wanted to avoid being too prescriptive and believe their language gives states the discretion to decide how to achieve better results — which could include adopting an assisted-outpatient treatment law.

The split may not prove to be a deal-breaker and could become overshadowed by other debates, including proposals to change privacy rules and a protection and advocacy program for people with mental illness.

“None of the differences are major,” said Murphy of Connecticut. “They can all be bridged if we’re lucky enough to get to a conference. It’d be a good problem to have to be sitting in a conference committee having to figure out these differences.”

Government’s Role

Arguments for and against court-ordered outpatient treatment can sound remarkably similar: The approach should only be a last resort as part of a continuum of community health services, advocates from both camps say.

But uneasiness with the idea of forcing an individual into treatment — particularly someone who is not imminently dangerous — has spurred divisions in the mental health community.

Paul Gionfriddo, president of Mental Health America, said there are concerns about ordering people into a specific kind of care if they’re capable of making their own decisions. His group believes assisted outpatient treatment, also known as outpatient commitment, raises basic rights issues.

“What right do we as a society have to say, ‘You’ve got to do this’?” he asked. “That’s always been the fundamental question.”

Ira Burnim, legal director of the Judge David L. Bazelon Center for Mental Health Law, said the tension pivots around people’s perception about the proper role of government. “Should the government have the power to impose its view of appropriate health care on people who are not dangerous to themselves or others?” he asked. “Our answer has always been no.”

John Snook, executive director of the Treatment Advocacy Center, said the programs are typically reserved for people who have been hospitalized more than once and are deteriorating to the point where they are likely to become dangerous or get readmitted. Some states only allow law enforcement officers or medical officials to petition for an individual to be ordered into treatment, he said, but others open the process up to family members.

Snook also said the treatment plans are prepared by professionals and approved by a judge, generally for a specified amount of time. Though individuals who refuse to comply cannot be arrested, he says judges usually have a series of options to prod people to follow treatment, such as bringing them back into court.

Ordering some patients into outpatient treatment has gained traction over the past few decades as part of the tool kit for treating serious mental illness.

The federal Substance Abuse and Mental Health Services Administration includes assisted outpatient treatment on its registry of evidence-based practices and Crime, a website run by the Justice Department’s Office of Justice Programs, rates outpatient commitment as effective. New York’s program known as Kendra’s Law is often held up as a success story, with a 2005 report released by the state Office of Mental Health describing a significant drop in hospitalizations, arrests, incarceration and homelessness among recipients.

But some advocates fear the programs can scare people away from seeking treatment to avoid coercion. They’re also concerned about the laws being marketed as a silver bullet in an era of tight budgets.

Curtis Decker, executive director of the National Disability Rights Network, said court-ordered community treatment has been sold to state officials as “the answer” and is worried states will think their job is done once they’ve passed a law. “If 45 states have it, how come it’s not working?” he asked.

Supporters say the programs aren’t designed to exist in a vacuum. Andrew Sperling, director of federal legislative advocacy for the National Alliance on Mental Illness, said his group views the practice as the last step on the continuum for people who will not be treated voluntarily and that it only works if there’s a system of services in place.

Snook characterized such programs as “a tool in the toolbox” and backs the House bill’s 2 percent funding bump linked to the laws. He said many states have expressed a need for more dollars and that the updated provision is a great compromise from the earlier version.

“Obviously we want everyone to utilize the program,” Snook said. “At the end of the day, if there’s more money available for the program, that’s great too.”

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