Behavioral Health and Criminal Justice: Data and Issues

1. Behavioral Health and Criminal Justice: Data and Issues W. Lawrence Fitch, J.D.University of Maryland Law Schooland Medical SchoolState-wide Summit on Behavioral HeathColumbia, MDNovember 5, 2013

2. Evolution of Forensic Services (U.S.) • Pre-1970’s • Security Hospitals in Remote Settings • Lifetime Commitment • 1980’s • ABA Criminal Justice/Mental Health Standards • Growing Professionalism • -University Programs • -Fellowship Training Programs • -Evaluator Training • -Research • -NASMHPD

3. 1980’s, cont. • Systems Changes -Structured Evaluations -Outpatient Evaluations -Forensic Review Boards -Conditional Release -”Dangerousness” Studies (Monahan) • Impact of Hinckley -Tightening of Insanity Defense Criteria -Restrictions on Expert Testimony -Abolition of Insanity Defense (4 States) -Advent of Guilty But Mentally Ill Laws

4. 1990’s • Risk Assessment Technologies • Sex Offender Commitment Laws • Systems Refinement, Development of Community Forensic Services (Jails, CMHC’s) 2000’s • Broadening the Scope of Forensic Services • GAINS Center • Criminal Justice/Mental Health Consensus Project; Council of State Gov’ts Justice Center

5. Parenthetical: Actuarial Risk Assessment • All the Rage • The Bright Side -Evidence Based (Product of Studies) -Exposes False Assumptions -Informs Aftercare Planning (Hawkes v State of MD, 2013), but… • The Dark Side (Misuse) -Influencing Commitment/Release Decision-making >>Role of “Dangerousness” in MH Law >>Relevance of Dangerousness Unrelated to Serious MI >>Bastardization of Civil Commitment -Quantifying Risk Without Regard For Containment Measures

6. Broadening of Forensic Services

7. Jails and Prisons 1980 503,586 1990 1,148,702 2009 2,297,400 Jails Alone 2012 886,947 Prisons Alone 1972 196,092 1982 394,374 1992 846,277 2009 1,617,478 Incarceration Trends in the U.S. (DOJ)

8. 1955 559,000 1983 132,000 1995 69,000 Today < 43,000 Number of Patients in State Psychiatric Hospitals

9. Forces Driving Deinstitutionalization • Advent of Effective Medications (1950’s) • Community Mental Health Act (1963) • Civil Rights Reforms: lawsuits over poor care; stricter commitment laws (1960’s, 1970’s) • Cost of Care: meeting heightened standards, Medicaid reforms/ IMD rule • Use of Private Facilities for Some Public Patients; Managed Care

10. Prevalence of Serious Mental Illness in U.S. Jails (Psychiatric Services, June 2009) • Men: 14.5% • Women: 31% • Overall: 16.9% Note: Inmates in this study did not necessarily have symptoms suggesting a need for hospitalization (Osher, personal communication, 2009); 72% have co-occurring substance use disorders Note: Mental illnesses range in severity: 26% of general population has a MI; 6% has a serious MI (NIMH) Note: Survey found 7.5% with a serious MI in Maryland jails; an additional11.5% had a diagnosable mental disorder, including personality disorders (HB 990 Report, 2007)

11. Query: Is the Prevalence of MI in Jails Up? Or Are We Just Paying Closer Attention? • Very little earlier data– public indifference • Case of Russell Weston (1998): “Failure of the Mental Health System!” (Media) • First DOJ study of MI in jails and prisons (1998): “Transinstitutionalization!” (Media)

12. Public Response: Call for Enhanced Services • Council of State Governments Criminal Justice/Mental Health National Consensus Project (2002 Report, Ongoing Work) • SAMHSA Funding for Jail Diversion Programs (GAINS Center) • Mentally Ill Offender Treatment and Crime Reduction Act • Intervention at Every Opportunity

13. Sequential Intercepts Best Clinical Practices: The Ultimate Intercept I. Law Enforcement/Emergency Services II. Post-Arrest: Initial Detention/Initial Hearings III. Post-Initial Hearings: Jail/Prison, Courts, ForensicEvaluations & Forensic Commitments IV. Re-Entry From Jails, State Prisons, & Forensic Hospitalization V. Community Corrections & Community Support Munetz, M. & Griffin, P. (2006). A systemic approach to the de-criminalization of people with serious mental illness: The Sequential Intercept Model. Psychiatric Services, 57, 544-549.

15. How Are We Doing? Maryland Gets a C- for “Diversion” (TAC, 2013) • Study examined % of the population served by a diversion program • But the only diversion programs considered were police-based crisis intervention teams (CIT) and mental health courts • Maryland has so much more

16. Broad Scope of Forensic Services in Maryland (Beyond Competency and Criminal Responsibility) Police Training; Crisis Intervention Teams Crisis Response Services Jail-Based Services (MCCJTP– 22 Counties) Forensic Alternative Services Team (FAST– Baltimore City) Shelter Plus Care (20 counties) Court Diversion Evaluations Mental Health Courts Sentencing Options (Eval/Tx) Hospitalization of Inmates (Civil Commitment) Re-Entry (Meds, Referrals)

17. What Works: Elements of an Effective Community-Based Forensic Treatment Program (GAINS, 2009) • Housing • Case Management • Accessible Medications • Peer Support • Integrated Co-occurring Treatment • Supported Employment • Cognitive Behavioral Interventions (Targeting Criminogenic Risk Factors)– Relapse Prevention

18. What Doesn’t Work: Traditional Psychiatric Treatment Alone • Recent studies show that changes in psychiatric symptoms alone have little or no effect on likelihood of re-arrest: H Steadman (2009); J Skeem (2010, 2011, 2013) • Consistent with J Junginger’s finding that psychiatric symptoms rarely drive criminal behavior (2006) • Consistent with MacArthur Research Network’s finding that serious mental illness (even delusions) not a statistical risk factor for violence, absent substance use (1998 to date) • More important factors: poverty, homelessness, joblessness/ inactivity, family discord, substance use, criminal history, antisocial behavior/ attitudes/ associates

19. Impact of SAMHSA Jail Diversion Programs (2009) • If the right services and supports are in place, arrest rates fall by 50% in the first 12 months– recent development, reflecting improved programs; earlier studies showed little impact • Costs to state of diversion higher in first year-- spread among agencies: significantly higher to MH agencies, lower to CJ agencies • Research suggests state costs may fall after 18 months-- but only because federal share of Medicaid coves some of the costs • Whether or not diversion saves money, all agree: It’s the right thing to do!

20. Ongoing Reform Efforts • Mental Health Criminal Justice Partnership • Interagency Forensic Services Committee of the Maryland Advisory Council • Task Force on Prisoner Re-entry • Local MH/ Criminal Justice Committees

21. Guns

23. Gun Laws and Mental Disorder: Federal Law Gun Control Act of 1968 prohibits firearms and ammunition to any person who has been “adjudicated as a mental defective” or “committed to any mental institution”

24. Gun Laws and Mental Disorder: Maryland Law (Effective 10/1/13) Person Ineligible to Possess Gun if: • Has a mental disorder and history of violence to self or others • Has ever been adjudicated IST or NCR • Has ever been involuntarily committed • Has ever been voluntarily admitted for > 30 consecutive days • Is under a court-ordered guardianship (unless solely as result of physical disability)

25. Gun Laws and Mental Disorder: Maryland Law (Effective 10/1/13), Cont. If person civilly committed and hearing officer finds that person “cannot safely possess a firearm based on credible evidence of dangerousness to others,” court will order person to surrender weapons and order person to refrain from possessing a weapon unless person relieved of disqualification by process below

26. Gun Laws and Mental Disorder: Maryland Law (Effective 10/1/13), Cont • Person disqualified to possess gun for reasons above (relating to mental disability) may apply to DHMH for relief from disqualification • Application must include 3 signed statements re person’s character and reputation relevant to firearm possession and a certificate from a Board-certified psychiatrist or psychologist stating; • length of time person free of symptoms making person dangerous • Length of time person compliant with treatment • Opinion whether person , because of MI, would be dangerous to self or others if allowed to possess a firearm, and reasons for the opinion

27. Gun Laws and Mental Disorder: Maryland Law (Effective 10/1/13), Cont • Person must prove by a preponderance of the evidence that he or she “unlikely to act in a manner dangerous to the applicant or to public safety and that [relieving the disqualification] would not be contrary to the public interest” • DHMH decides; person may appeal for hearing and judicial review • Psychiatrists and psychologists who act “in good faith and with reasonable grounds” immune from civil and criminal liability under this law

28. Confidentiality • General Rule of Confidentiality in Maryland Law and in HIPAA: Keep “medical record”/ “protected health information” confidential (Health General § 4-302; Health General § 7-1010; HIPAA Privacy Rule, 45 CFR Parts 160 and 164) • Many exceptions to confidentiality: patient consent, to arrange patient’s hospitalization, to get paid, if sued by patient, if patient puts mental state at issue in legal case, if patient has abused a minor, if patient has infectious disease, if patient suffers gunshot wound, if patient threatens harm to another

29. Early Duty to Protect Case: Tarasoffv Regents of the Univ of CA (CA Supreme Court, 1976) "The public policy favoring protection of the confidential character of patient-psychotherapist communications must yield to the extent to which disclosure is essential to avert danger to others. The protective privilege ends where the public peril begins."

30. Maryland Law: Courts and Judicial Proceedings §5-609 A cause of action or disciplinary action may not arise against any mental health care provider or administrator for failing to predict, warn of, or take precautions to provide protection from a patient’s violent behavior unless the mental health care provider or administrator knew of the patient’s propensity for violence and the patient indicated to the mental health care provider or administrator, by speech, conduct, or writing, of the patient’s intention to inflict imminent physical injury upon a specified victim or group of victims.

31. Courts and Judicial Proceedings §5-609), Cont. Duty discharged if mental health provider or administrator makes reasonable and timely efforts to: (i)   Seek civil commitment of the patient; (ii)   Formulate diagnosis and establish and undertake documented treatment plan calculated to eliminate the possibility that patient will carry out the threat; or (iii)   Inform law enforcement and, if feasible, the specified victim or victims of: 1.   The nature of the threat; 2.   The identity of the patient making the threat; and 3.   The identity of the specified victim or victims.

32. Courts and Judicial Proceedings §5-609), Cont.   No cause of action or disciplinary action may arise under any patient confidentiality act against a mental health care provider or administrator for confidences disclosed or not disclosed in good faith to third parties in an effort to discharge a duty arising under this section

33. But What About HIPAA? 45 CFR § 164.512 A covered entity may, consistent with applicable law and standards of ethical conduct, use or disclose protected health information, if the covered entity, in good faith, believes the use or disclosure: … (A) Is necessary to prevent or lessen a serious and imminent threat to the health or safety of a person or the public; and (B) Is to a person or persons reasonably able to prevent or lessen the threat, including the target of the threat.

34. HIPAA, Cont. • A covered entity… is presumed to have acted in good faith …if the belief is based upon the covered entity's actual knowledge or in reliance on a credible representation by a person with apparent knowledge or authority • January 15, 2013 letter from DHHS Office of Civil Rights offers assurances

35. For Copies of Slides or Further Information:fitchwillard@gmail.com