Should Courts Be Able to Mandate Psychiatric Care?

Should Courts Be Able to Mandate Psychiatric Care?

Should Courts Be Able to Mandate Psychiatric Care?

Sasha Abramsky argues that court-mandated care connects unhoused individuals to supportive services, while Stefanie Lyn Kaufman-Mthimkhulu and Ruth Sangree write that psychiatric incarceration is cruel and ineffective.

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Yes

In the cities of the American West, the number of homeless people is at near-historic highs. California is the epicenter of this crisis; fully half of the nation’s unsheltered homeless live here. Once restricted to well-known skid rows, tent encampments are now everywhere: in parks, along thoroughfares, on residential side streets, in parking lots, along freeways and riverbanks, behind restaurants, and near schools and businesses.

There are roughly 170,000 homeless people in California. Upward of 115,000 of them, according to the latest counts, are unsheltered.

The state has thrown billions of dollars at the problem, yet the number keeps spiraling upward. What California is experiencing is partly the legacy of the 2008 housing market collapse. But there are other reasons: thousands of homes lost to fires and floods; a rethinking of the criminal justice system, which has resulted in tens of thousands of people being released from prison only to find the housing market largely closed to them; the opioid crisis; unaffordable rents; the economic and psychic dislocation of the pandemic; and, at least as important as any of these, a decades-long mental health crisis that has been met by a shambolic public health and legal response.

Last year, California Governor Gavin Newsom persuaded the state Legislature to fund a CARE Courts system, which requires counties to provide mental health services for poor unhoused residents and forces residents to participate in that treatment.

The policy divided the mental health and civil rights communities. The ACLU, Human Rights Watch, and Disability Rights California opposed the legislation, arguing that the element of compulsion was discriminatory and ineffective, while the state affiliates of the National Alliance on Mental Illness supported it.

I generally agree with the ACLU, but on this issue it is off base. If you live in a California city—or, for that matter, in any major city in the West—you are exposed to shantytowns that are effectively outdoor public bedlams. You see and hear floridly psychotic people screaming and shouting, hitting people and objects, and having conversations with themselves that bear no relation to reality. Many are clearly too sick to make rational choices. Lacking options, they bounce between encampments and local jails or state prisons.

CARE Courts are a way to help vulnerable sick people function better and reach a place of greater safety and dignity. They are a way to limit the chaos and costs of thousands of extremely ill individuals with no place to live.

Since the 1960s, when California and then the country at large turned against the idea of holding the severely mentally ill in psychiatric facilities, the story of mental health care provision for the poor has been one of repeated failure. The original promise was to replace inpatient treatment with outpatient resources. But the money never materialized, and the infrastructure for comprehensive, timely assistance for those whose families weren’t affluent was never developed. In place of psychiatric facilities, prisons and jails became de facto mental health care providers.

Then, beginning in the late aughts, when voters started to react against the costs and futility of mass incarceration and when courts declared that California’s prisons were so overcrowded that they constituted cruel and unusual punishment, the prison population was reduced by tens of thousands. And again the seriously mentally ill, following a bout of deinstitutionalization, were left at risk.

Ex-prisoners face an array of employment and housing restrictions. If they suffer from serious mental illnesses, those problems are magnified. Roughly 70 percent of California’s unsheltered homeless population report having been incarcerated. Many of these residents suffer debilitating overlaps of mental illness and addiction, as well as a host of physical ailments. Only when they are ill enough for someone to call an ambulance, and for that ambulance to transport them to the emergency room, do they get some temporary, and very expensive, help.

That’s a dysfunctional way to provide care. It is far better to mandate that people too mentally ill to make rational decisions go into treatment. Far better to use that time in treatment to link them up with supportive services like housing. Mandating psychiatric care isn’t a panacea, but it is a crucial part of the package of policies needed to tackle homelessness.

The idea that someone in psychosis is somehow “free” if they are left to live in a shanty with no access to running water or bathrooms, with no source of heat in the winter or cool air in the summer, and with no regular supply of food is nonsense. Other states should also mandate that local governments provide mental health services and then find ways to link the seriously mentally ill homeless to those services. The CARE Courts aren’t perfect, but at least they are trying to respond to one of the great moral challenges of our age.

Sasha Abramsky

No

The us mental health system is akin to the prison-industrial complex. It is built around the idea that if you do not act the right way or comply with the authorities, someone in a position of power, usually a doctor or judge, can decide where you go, what you eat, and what medical treatments you must receive. This practice is often couched in soft language—like the “care” in California’s CARE Court plan. But gentle words should not distract us from the underlying intention of state-mandated treatment: to remove those the government deems undesirable and dangerous from our communities. These programs essentially intertwine punishment and treatment, criminalizing disabled people—particularly Black and brown disabled people. In California, New York, Massachusetts, and elsewhere, schemes to expand involuntary “care” are proliferating, but they only harm the patients they’re supposedly trying to help.

As psychiatric survivors, we are part of a long line of people who have been abused, neglected, or tortured by psychiatric practice. Although many people believe that court-mandated treatment is a compassionate alternative to incarceration (“They just need help, not criminalization!”), psychiatric facilities share much with prisons, including restricted access to technology and the outside world, limited visitation, the use of solitary confinement, sedation of individuals without their consent, and high rates of sexual violence.

California now allows broad categories of people—including police, family members, even roommates—to refer someone to a CARE Court if they think that person is dangerous or unable to care for themselves. If the individual refuses or is unable to comply with a “treatment” plan, a judge can force that person into care or a conservatorship. CARE Courts are not outliers: We see this coercion inside nursing facilities, residential treatment centers, and assisted outpatient treatment (AOT) programs, where a court requires an individual to receive treatment­—often involving medication­—outside of a hospital. Black and Hispanic patients, according to one study, are disproportionately subject to AOT.

There is ample evidence that psychiatric incarceration does not work. In addition to oral histories and personal narratives that explain why these “solutions” cause suffering, research shows that the risk of suicide increases after psychiatric hospitalization. The work of Nev Jones, an assistant professor in the School of Social Work at the University of Pittsburgh, demonstrates how police response, transport, and restraint can be traumatic and make young adults feel as though they’ve done something wrong.

The psychiatric care system in this country is erected around and reinforced by police power and the criminal legal system. Officers are typically the first point of contact before a hospitalization or court involvement, and their enormous discretionary power can be deadly. In one study, more than a third of Americans killed by police between 2013 and 2015 had a disability. In 2016, an NYPD officer fatally shot Deborah Danner, a 66-year-old Black woman, after a neighbor called 911 complaining of her “erratic” behavior. Only a few years earlier, Danner had written an essay detailing her experience with schizophrenia and the stigma that accompanied it. She wrote, “Is that a delusion, I ask myself, my belief that I am worthy of respect and a ‘normal’ happy life?”

When looking at encampments, we should remember that mental health care alone will not change the structural conditions of a person’s houselessness. Safe shelter is a prerequisite for any effective psychiatric care. Being in a “delusional” state can be a form of self-protection for people living in survival situations, where full cognitive awareness may be too painful. What we call mental illness is rarely the source of the problem.

Genuine care and relationships should be at the core of addressing mental health crises. We know from history, personal experience, and research that this type of care is not possible under government mandates. We also refuse to accept the argument that it must be one or the other: incarceration in a prison or forced treatment. Many people receive meaningful care and get access to resources at voluntary, short-term, nonclinical spaces such as Afiya House, Karaya Peer Respite, Retreat @ the Plaza, and Soteria House. Though these facilities, known as peer respite centers, often lack reliable funding, research shows that respite guests are much less likely to be hospitalized than patients elsewhere.

Investing in carceral solutions has stunted our capacity to imagine other systems of care—but community-led organizations like HEARD, Project LETS, BEAM, MH First, the Fireweed Collective, and the Wildflower Alliance demonstrate what is possible when psychiatric survivors have the resources to create and lead. These organizations model noncarceral healing that emphasizes self-determination and the dignity of those society claims to want to help.

Stefanie Lyn Kaufman-Mthimkhulu and Ruth Sangree

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