Some bills wind their way through the legislative process with nary a raised eyebrow. Others leave lawmakers in a moral quandary, caught between one side that says do something and another that says don’t.
L.D. 785 is one of those others.
It’s titled “An Act to Change the Standard for Assessing Risk of Serious Harm.” On paper, it amounts to a slight tweak in existing state law that governs who can be involuntarily committed for mental health treatment and who can’t.
But at a hearing before the Judiciary Committee this month, the bill pulled back a curtain on the struggles faced by Mainers with mental illness, as well as their families and mental health providers, every single day.
“My son is in the middle of a crisis right now,” one man told the committee in written testimony. “He thinks I am Donald Trump and his mother is Ellen Degeneres, along with many other bizarre thoughts. … He refuses to get help or take medication because he doesn’t think he has a problem. He left the emergency room (in Maine) and decided to drive to Florida. As I write this I believe he is somewhere in Florida living in his car getting sicker every day. He is totally isolated.”
Another witness told the committee of her two children, both with mental illness. Her daughter, who once jumped out of the car while her mother drove her to an emergency room, is doing much better after a seven-month stay at the state-run Dorothea Dix Psychiatric Center in Bangor. Her son, not so much.
“His psychosis is more bizarre than his sister’s, and he has been taken three times to the ER involuntarily but has been released within 2-3 days,” she testified. “Our son believes he is the CEO of Apple and Facebook and Google.”
As the committee’s co-chair, Sen. Anne Carney, D-Cape Elizabeth, noted in an interview, “It was a really moving and challenging public hearing.”
Moving because the committee heard from people desperate to get their loved ones the help they need. Challenging because they also heard from people who know what it’s like to be hospitalized against their will and thus implored legislators to keep the threshold for involuntary commitment exactly where it is.
Maine law lays out four criteria for determining whether a person poses enough “likelihood of serious harm” for a court to mandate inpatient psychiatric treatment.
The first three – harm to oneself, harm to others, or an inability to avoid risk or protect oneself from harm – are based on recent or current behavior. The fourth is more forward looking: If a person’s treatment history, current behavior and impaired ability to make an informed decision create “a reasonable likelihood” that the condition will deteriorate further and harm will result, a judge can order involuntary commitment.
But there’s a catch. The fourth benchmark – in effect, seeing trouble ahead and averting it – applies only in cases where a court-ordered commitment has already occurred and the person has been released from treatment subject to the conditions of a “progressive treatment plan,” known in the mental health community as a PTP.
The bill before the Judiciary Committee would eliminate that caveat, enabling providers and family members to petition the court for involuntary commitment in cases where no PTP exists. In other words, it would ask the court to compel inpatient treatment based not only on what’s already happened but on what those close to a person in crisis strongly believe will happen unless that person is placed in a secure therapeutic setting.
The change has the strong support of mental health providers. They include Malory Shaughnessy, executive director of the Alliance for Addiction and Mental Health Services, Maine, a statewide consortium of 35 agencies that provide mental health and substance abuse treatment services.
In an interview, Shaughnessy said she understands the fears civil rights advocates have about returning to the days when someone could be locked inside a psychiatric ward for reasons – sexual identity, for example, or religious belief – that have nothing to do with their mental health or a risk of harm. As she told the committee, the deinstitutionalization movement of the late 20th century changed that – the number of psychiatric inpatients in this country fell from a high of some 550,000 in the 1950s to about 30,000 in the 1990s.
But these days, Shaughnessy said, too many people in desperate need of help are ending up on the streets or in jail rather than in a secure treatment facility, where medication and therapy can help bring more stability to their lives.
“It’s a balance,” she said. “And I think we’ve tipped the scales just a little bit too far to an inhumane place where people are allowed to have their life all the way up to where they get shot by the police or arrested and sent to jail. And what they’re put through in that situation is so much worse (than involuntary commitment).”
Opponents to the bill, meanwhile, see the relaxed commitment standard as a shortcut around a bigger issue.
If Maine had adequate community-based services for treating those in crisis as outpatients, they say, many emergencies could be pre-empted without resorting to a lock and key. What’s more, they argue, why not promote the use of advance directives, enabling people with mental illness to play a role in deciding when they might need inpatient treatment?
Kevin Voyvodich, managing attorney for Disability Rights Maine, told the committee that the proposed change in the law would create a situation where involuntary commitment of a person with no PTP would be based on a “predictive standard that cannot be articulated.”
“There’s many other steps we could take to improve things for people” in need of mental health treatment, Voyvodich said in an interview. That starts, he said, with better training for mental health services providers on how to use the existing statute to get people into a secure setting when necessary.
But involuntarily committing people based on what they could do rather than what they’ve already done? That, Voyvodich said, “is just going to put people back in hospitals rather than let them live in the community.”
At a work session last week, the Judiciary Committee tabled the bill to allow time for the opposing sides to talk, maybe reach some sort of common ground.
That won’t be easy. As Carney, the committee co-chair, observed, “It is very legally complex and really emotionally hard to find the right path forward.”
No argument there.
Predicting human behavior is indeed a tricky business. But when danger clearly looms on the horizon, so is doing nothing.
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