Recidivism rates for mentally ill criminal offenders in the United States currently are unacceptably high. Of particular concern are the mentally ill "revolving door" offenders who have mental illness that is untreated, often with co-occurring substance abuse. When it occurs, detention in jail can offer an opportunity to break the cycle of criminal recidivism and divert the offender with serious mental illness into treatment on release.
In this article, we discuss the role of mandated outpatient treatment for offenders with serious mental illness who demonstrate high rates of criminal recidivism, outline the legal authority for mandated outpatient treatment, explore the barriers to its implementation, and recommend interventions to facilitate acceptance and increased use of this method of treatment. Members of the criminal justice system and mental health professionals need to be educated and empowered to facilitate appropriate treatment of these patients to keep them from returning to jail again and again.
SCOPE OF THE PROBLEM
Deinstitutionalization without adequate, proactive, comprehensive community mental health care has led to criminalization of the mentally ill.1 For example, in New York City, Los Angeles, and Chicago, the metropolitan jail is the state's largest provider of public mental health services. The National Alliance for the Mentally 111 estimates that approximately 25% to 40% of the mentally ill will come in contact with the criminal justice system for one reason or another.2 In one of the largest mental health facilities located in a county jail, approximately 30 new offenders with serious mental illness are identified and treated each day, which represents 10% of detainees entering the jail per day.3 Most of these offenders have committed misdemeanors or nonviolent felonies, with only a small proportion having committed violent felonies, including murder.
Although the underlying mental illness may be detected and even treated while the offender is in jail, the problem is that any treatment provided during detention almost invariably fails to achieve lasting results due to lack of follow-up on release. Outside of the institutional confínes, rehabilitation and social support services cease, the mentally ill offender decompensates or experiences a relapse regarding his or her substance abuse or dependence, and all too often and all too soon the behavioral circle closes.
State-of-the-art treatment for individuals with serious mental illness (ie, those with schizophrenia, schizoaffective disorder, bipolar disorder, and major depression with psychotic features) includes effective case management, which encompasses assistance with access to benefits for housing and medication, substance abuse treatment, budgeting, transportation, daily living skills, and treatment compliance. Mueser et al.4 reviewed all available studies in the research literature on case management for patients with serious mental illness discharged from state mental health facilities. Assertive community treatment and intensive case management reduced time in the hospital and improved housing stability for these patients, demonstrating an important role for this component of mental health treatment.
However, case management had little effect on decreasing arrests or time spent in jail. Indeed., the patient with serious mental illness who ends up in the jail has most often been noncompliant with medications and abusing substances while presumably receiving treatment in the community.1 The Massachusetts forensic transition program for mentally ill offenders reentering the community from correctional facilities was modeled after assertive community treatment and intensive case management. It identified a similar subgroup of offenders with serious mental illness and emphasized the need for "treatment engagement strategies" for those patients who were unmotivated and noncompliant and for those who were lost to follow-up. Clearly, assertive community treatment or intensive case management alone is not enough for the seriously mentally ill untreated, criminalized patient.5
Involvement by the court in monitoring outpatient treatment has been shown to make a difference in the population with serious mental illness. Specifically, civil outpatient commitment, when combined with sustained court monitoring and intensive treatment or case management, reduces hospital readmissions and total hospital days.6 Unfortunately, one of the limitations to the effectiveness of this approach to mandated treatment is that few meaningful consequences to violation of the cavil court order are imposed. In addition, those individuals who revolve through the system are often not in a position to benefit much from civil outpatient commitment due to their lack of connection to other community treatment resources.
Over time, this failure oí the community mental health system has shifted the burden of care for patients with serious mental illness to the correctional system. In response, innovations within the criminal justice system to return these individuals to an appropriate treatment setting have been developed. Existing diversion programs, although few in number, have shown promising results with patients who, once their conditions are stabilized, are willing to comply with their treatment plan after release.7 More rigorous research is needed in this area. The Substance Abuse and Mental Health Services Administration's research initiative assessing the effectiveness of jail diversion programs for mentally ill persons is currently under way and promises to provide additional data about the characteristics and outcomes of various types of jail diversion programs across the United States.8
Mandatory outpatient treatment initiated within the correctional system optimizes the benefits oí diversion by compelling seriously mentally ill untreated, criminalized patients into effective treatment in the community. In a retrospective study of mentally ill offenders, Lamb et al.9 showed that a significantly larger proportion of offenders who were mandated to receive judicially monitored treatment, compared with individuals not mandated to treatment, had no psychiatric rehospitalization, rearrest, significant physical violence against persons, or homelessness at the end of the 1-year follow-up period.
Court-ordered treatment coupled with serious consequences for noncompliance is an underutilized avenue for directing the offender with serious mental illness into treatment. Support from the criminal justice system in the form of courtordered treatment will give community mental health professionals the much-needed leverage to work with this population. However, for mandated outpatient treatment to ensure that these offenders with serious mental illness receive the intervention that addresses the underlying mental illness and thereby reduces the likelihood that they will be back in jail, the barriers to its implementation must be identified and eliminated.
The legal authority to break this futile and wasteful tandem of offense-detention-reoffense or psychiatric crisis-stabilization-relapse already exists in most states. It is rarely used, however, because those who have the authority are not sufficiently aware or confident of having it, and the community facilities able and willing to provide treatment for this discharged jail population are exceedingly scarce. Current law in most states, including Illinois, authorizes mandatory outpatient mental health treatment for populations having the legal status of jail detainees awaiting release via any one of four routes. Three of these are potentially pertinent to the population with serious mental illness; one probably is not routinely used but may be implemented in exceptional cases and is discussed briefly.
Since deinstitutionalization, the psychiatrist in the public sector encounters the seriously mentally ill untreated, criminalized patient in community clinics; community, academic, and state hospitals; and correctional settings. We therefore believe that detailed, sophisticated understanding about the legal underpinnings of mandated outpatient treatment described below is necessary for psychiatrists to optimally plan treatment for these patients.
Outpatient Civil Commitment
The first route to mandated treatment is outpatient civil commitment as specified by each state's mental health code. Under this procedure, the detainee is dealt with as any other potentially "committable" citizen and the criminal event is not adjudicated but is instead offered as evidence contributing to proof of the criterion of civil dangerousness. This procedure is unique in that it comes under the jurisdiction of a court other than the criminal court, namely, the probate court.
Resort to these statutory provisions for ordering treatment would be most appropriate in cases where the state has no hold over the detainee qua detainee (ie, where processing of the criminal charge is for one reason or another out of the question or where sentence has been served). In such cases, the alternatives of ordering treatment as part of a diversion agreement or as a condition of probation would be unavailable, notwithstanding the individual's continuing treatment needs.
Such civil outpatient commitments are rarely, if ever, ordered by the courts in Illinois and never in the case of offenders charged with felonies. Comparably low use has been documented in other states where the authority to effect such commitments is only implicit in the wording of the statutes.10 Only when the authority is made explicit is it likely to be used with a frequency that is consonant with whatever the medical need or social propriety for it might be.
A second route by which a mentally ill offender may gain access to treatment after release is to negotiate a pretrial diversion settlement under which the defendant binds himself or herself to undergo outpatient treatment in return for the elimination or reduction of charges, pretrial jail time, or both.7 An informal approach, postbooking jail diversion arises at the time of arraignment or while the individual is awaiting trial and residing in jail.9 Elements generally associated with diversion programs include supervision in accordance with specific rehabilitation objectives set by the program; gainful employment on the part of participants; and payment of room and board by participants on a sliding scale basis in case the program is residential.7 Presumably, breach of the agreement by the defendant allows the state to reopen the case and try it - a decision that would be made by the final authority, either the prosecutor or the criminal court judge.
There are only approximately 50 true jail diversion programs for mentally ill offenders in the United States.8 Among existing diversion programs throughout the country, most are funded by county mental health departments. A smaller percentage receives the bulk of its support from the state. Although all jail diversion programs surveyed serve offenders who have committed misdemeanors, three-quarters of the existing programs also serve offenders who have committed nonviolent felonies. A few programs, primarily at smaller institutions, even accept violent offenders.7
A third way to mandate treatment is as a condition of probation or, as it is sometimes referred to, court-supervised release. This entails a plea of guilt or conviction on the criminal charge and vests authority to order and monitor the treatment with the criminal court. Sentencing statutes in all states authorize probation in lieu of incarceration in appropriate cases. The Illinois Unified Code of Corrections is typical.11 It lists a series of conditions that the court may impose on the offender. The first 5 oí these are mandatory and include (1) no further criminal violations; (2) reporting requirements to designated (probation) officials or agencies; (3) no firearms or other dangerous weapons; (4) no out-of-state travel without court approval; and (5) home visits by the probation officer.
Following these are 15 "discretionary" conditions, any number of which the court may elect to impose in addition. The most relevant of these for our purpose is the fourth provision, which authorizes the court to require the offender to "undergo medical, psychological or psychiatric treatment; or treatment for drug addiction or alcoholism." Given the anti-institutional essence of the whole probation concept, there can be no doubt that these treatment-oriented conditions can and usually will include options for outpatient services.
As in civil commitment, the court retains jurisdiction to modify or revoke a probation-based conditional release order for failure to comply, or even in response to a change in the defendant's needs.12 A return to the sentencing possibilities initially available is a threat that can be and, in circumstances deemed appropriate, is implemented.
Fitness to Stand Trial
Finally, a defendant may be declared unfit to stand trial and have outpatient treatment imposed by the criminal court as a less restrictive alternative to the usual hospitalization disposition that follows this type of legal incompetency. However, a finding of lack of fitness to stand trial subsumes the defendant's eventual return to the court for trial on psychiatric recovery. Because pretrial detention continues and possible penitentiary incarceration follows, this dispositional possibility is not particularly relevant to the concern at hand except in cases where the charges are dismissed on restoration to fitness.
In summary, the legal authority for outpatient civil commitment exists in virtually every state, either explicitly or, as in states such as Illinois, implicit in the wording of the statutes. The same is true of pretrial diversion for jail detainees. Increased implementation of both concepts in the latter states may require statutory changes that render explicit what is now only implied. New York's "Kendra's Law" is the most recent explicit statute and offers one model for Illinois and other states still lacking such legislation.13
Mandatory outpatient treatment based on a finding of unfitness to stand trial is a possibility, although, here too, the authority is only inferential. The main inhibitions to the use of this authority in our context, however, stem from the reality that the defendant restored to fitness typically experiences one or more further institutionalizations in jail or in a forensic hospital before being released.
Of the four possible routes to ensure continued treatment of mentally ill offenders released from jail, mandated treatment as a condition of probation appears to be the most secure in terms of its legal foundation on-the-books.
IDENTIFYING AND OVERCOMING BARRIERS TO MANDATED OUTPATIENT TREATMENT
Ultimately, legal reform is only part of the battle. The practical problem of lack of resources or lack of appropriate supervision of funded community providers is a greater inhibitor to the provision of outpatient mental health care to the population with serious mental illness. Thus, the barriers to mandated treatment exist within the components of the system, as well as among them.
For a subset of offenders with serious mental illness, one of the problems has been direct release to the community without adequate treatment planning or linkage to community resources. Judges are often unaware of the availability and effectiveness of current psychiatric treatment. Other offenders with serious mental illness are in fact diverted to community mental health services, but do not comply with treatment for a variety of reasons, including lack of transportation and poor insight and motivation. In some areas, access to limited community mental health resources is denied by the providers of these services. Mental health professionals may not feel confident using mandated treatment in their repertoire of therapeutic interventions. Insufficient funding of community mental health services represents a major resource barrier. Irregular interface between the criminal justice and the mental health systems impedes effective linkage of offenders with serious mental illness to the appropriate level of community care.
In summary, barriers to mandated outpatient treatment can be organized into three categories: lack of information, inadequate funding and availability of resources, and poor collaboration among key participants in the criminal justice and community mental health systems.
LACK OF INFORMATION
Unawareness of New Advances in Mental Health Treatment
By and large, judges are familiar with the benefits of treatment for substance abuse to reduce recidivism, as long as the treatment is continued for an extended period of time. Participants who receive community-based drug treatment services in addition to jail-based treatment can have a recidivism rate of 50% less than that of those who do not receive community-based treatment.14
Many judges do not view the prognosis for mental illness in the same favorable light, often because they lack information about psychiatric diagnosis and treatability. Individuals with serious mental illness are much more responsive to treatment now that atypical antipsychotic medications are regarded as first-line treatment in many communities and institutions.15 In addition, much recent research has led to improved efficacy in the treatment of mania.16 Psychiatrists are well aware of this, but many judges and other criminal justice personnel still view mentally ill offenders as suffering from an untreatable condition with a poor prognosis. Education of judges and other key personnel in the criminal justice system is needed so that the treatment and prognosis of offenders with serious mental illness will be viewed in a more realistic and favorable light.
Inadequate Training In Psychotherapeutic Aspects of Mandated Patient Care
Psychiatrists are well schooled in the burgeoning field of biological psychiatry and the effective use of newer psychotropic medications. Unfortunately, managed care has decreased the emphasis on psychotherapy in psychiatry training programs. An important aspect of psychotherapy, be it supportive, long-term psychodynamic psychotherapy, or cognitive therapy, is the establishment of rapport, structure, and limitsetting. Lack of thorough framing in these skills leaves psychiatrists struggling to accomplish this important aspect of treatment, particularly when dealing with patients with chronic illness who are noncompliant. In addition, psychiatrists may not be aware of the available legal options for mandated outpatient treatment or, when aware, may hesitate to pursue the legal route for fear of compromising the therapeutic alliance with their patients. In reality, the therapeutic alliance is already compromised by the noncompliance and lack of engagement in voluntary treatment of the patient with serious mental illness.
Because the specter of malpractice looms high in American medicine, psychiatrists hesitate to venture into the realm of restricting a patient's freedom. The concept of practicing defensible instead of defensive medicine reduces the risk of liability and applies to this population of seriously mentally ill untreated, criminalized patients just as much as it does to any other patient population. Mandating treatment provides the vehicle in which to establish structure and set limits so that some very ill patients, who once were considered "uncooperative" or "treatment-resistant," can have the opportunity to achieve remission of symptoms.
INADEQUATE FUNDING AND AVAILABILITY OF RESOURCES
Community Mental Health Services
One of the most significant barriers to mandated outpatient mental health treatment is the lack of sufficient community mental health resources. Since the deinstitutionalization of the mentally ill in the early 1960s, the total amount of money spent on the mentally ill has been inadequate. As E. F. Torrey has written, the most sobering side of jail diversion has been the assumption that there are public psychiatric services to which mentally ill individuals can be diverted, but this has often not been the case.17 Currently, funding for community mental health services is derived from local and state sources with some contribution by the federal government.
Efforts to link mentally ill offenders to adequate follow-up in the community are thwarted by the limited availability of community mental health resources. Most detainees simply do not receive adequate treatment on release from jail, as evidenced by their subsequent rearrest for similar crimes and deteriorated mental state on psychiatric reassessment at the jail. Although patient factors such as limited insight and poor motivation contribute to noncompliance with treatment, system factors such as long waiting lists for appointments with psychiatrists, even for patients enrolled in assertive community treatment, contribute to the problem. Furthermore, inadequate engagement with community mental health services and limited access to community resources and other social services further influence the rate of noncompliance.
One problem inherent in probation or any other conditional sentencing or release is the lack of treatment facilities willing to accept released jail detainees as patients. Under the law, judges may not compel a facility to accept a defendant. Therefore, if a proper facility is unavailable, probation may not merely be refused as an option, it may even be revoked despite being initially granted.18 In contrast, the inability of the defendant to pay for services conditioned by probation is not an adequate basis for revocation.19
Another obstacle is the senseless practice of terminating public aid benefits for detainees with a projected short stay in the criminal justice system. This loss of services based on detainee status impedes access to mental health treatment, including much-needed psychotropic medications, case management, substance abuse treatment, and wraparound services (eg, housing, food stamps, child care, and transportation). Recently released offenders with serious mental illness are then expected to traverse a disjointed system without the financial aid they previously had.
Tragically, even well-funded community mental services may refuse to provide treatment for this population, whether out of fear or due to lack of clinical acumen to treat them. Funding that is contingent on providing treatment to this population would represent incentive for addressing this discrepancy in the delivery of mental health care. Funding is also needed to provide training of staff in assertive community treatment and intensive case management to effectively work with this population.
Mental Health Court
Unless a specific legal issue arises, such as fitness to stand trial or CTirninal responsibility, the criminal justice system tends to handle mentally ill offenders in a manner similar to that for offenders who are not mentally ill. Focus on these special issues depends on highly discretionary, not to say idiosyncratic, decisions by the various participants in the criminal justice system. As a result, there are many cases where mental illness has played a significant role in the offense, but where this remains unrecognized.
A new development in a few jurisdictions across the United States is the specialized mental health court. This option offers mentally ill offenders a single point of contact with the criminal justice system. Participation currently is typically voluntary, allowing the offender the choice to waive his or her right to trial and enter into a diversion or plea agreement containing an emphasis on community-based treatment.20
Voluntary participation tends to result in the selection of a more motivated group of patients than usual. Insight and motivation to change figure strongly in compliance and tend to influence outcome in a positive direction. Yet, the inherent characteristics of serious mental illnesses (ie, compromised reasoning and impaired judgment) are what hamper these individuals from making decisions to best achieve or regain their mental health. In the more extreme cases in which an individual has repeatedly endangered public safety and has been incarcerated again and again, drastic measures may be indicated to ensure access to effective treatment. Thus, expanding the mental health court model to include involuntary participants would bring resources to bear on the population most in need.
Moreover, patients with serious mental illness themselves have demonstrated an understanding of the purpose and effectiveness of the court order for treatment. Borum et al.21 studied beliefs among 306 patients awaiting a period of outpatient involuntary commitment. More than 80% perceived the requirement to keep their appointments and take medications as prescribed. More than 75% believed that the court order would increase the likelihood of keeping appointments, adhering with medication, and staying out of the hospital. Another study indicated that most patients who experienced coerced administration of psychotropic medication reported that they retrospectively agreed that treatment was in their best interest.22 Fifty percent of respondents stated they would be more likely to take medication voluntarily in the future. These studies suggest the potential acceptance of mandated outpatient treatment by the seriously mentally ill untreated, criminalized population.
POOR COLLABORATION BETWEEN THE CRIMINAL IUSTICE AND THE COMMUNITY MENTAL HEALTH SYSTEMS
The criminal justice and the community mental health systems operate on disparate philosophies in dealing with the mentally ill offender. The criminal justice system aims to dispense justice while protecting the interest of both the state and the individual; the mental health system strives to provide optimal treatment for the individual aimed at reducing symptoms, restoring function, and enhancing quality of life. Serving a critical function in bridging the gap between the participants in these two systems is the mental health specialist in court. A few jurisdictions have implemented and funded a liaison position. This individual is a trained mental health professional who is well versed in the functioning of the court system.
The role of the liaison is to advocate for the mentally ill offender, identifying available community mental health resources and advising the court on appropriate dispositions. The transfer of information occurs in both directions, with the liaison advising the judge and also providing information to the community mental health service. A good liaison will give the judge viable options for comprehensive, individualized mandated treatment orders. This process of advocacy could be guided by the use of a "model court order," a standardized tool that has been successfully used in mandated substance abuse treatment.
Preferably, the liaison would be involved directly in the care of the offender with serious mental illness, but, at a minimum, would be knowledgeable about legal, mental health, and risk assessment issues. Having a patient-liaison relationship prior to release from jail is one of the few well-established indicators of favorable outcome for the offender with serious mental illness after release.4
Transfer of Information
In many jurisdictions, the information management systems for criminal justice and community mental health care are outdated and not userfriendly. In addition, the systems are often unable, for technical or bureaucratic reasons, to "talk to each other." These problems are exacerbated by the reality that offenders with serious mental illness are often released unannounced or with short notice - whether by dismissal, probation, or otherwise - prior to initiation of any community treatment plan. Not only is clinical and risk assessment information about the offender with serious mental illness not readily accessible to community mental health professionals, but these all-important data do not reach the attention of the judge, the state's attorney, or the public defender at the critical time of decision making.
In some states, laws have been passed to facilitate the flow of information among different governmental entities in the interest of continuity of care. Where such laws do not exist, better understanding about the concepts of informed consent, confidentiality, and privilege will facilitate the free flow of information. Turf issues need to be addressed to prevent the unproductive "hoarding" of information.
This basic breakdown in communication epitomizes the barriers that prevent mandated community treatment from being employed. Without close coordination among the key participants who administer justice and provide care, recidivistic behavior by the seriously mentally ill untreated, aiminalized patient compromises the safety of the community.
Review of the literature and the law regarding mandated treatment for individuals with serious mental illness suggests that the clinical acumen and legal foundation exist to intervene proactiveIy in the revolving door cycle. Combining stateof-the-art treatment for the seriously mentally ill untreated, criminalized population with a court order mandating participation in treatment will maximize the opportunity for regaining mental health and, in turn, reduce the risk of reoffending for these individuals. Informed judges and mental health professionals, well-trained liaison personnel, and updated information systems will help the seriously mentally ill untreated, criminalized population navigate more effectively between the criminal justice and the mental health systems.
The practical means to overcome the barriers to implementing mandated outpatient treatment for this population clearly require appropriate supervision of current community resources, as well as additional funding to expand those resources. Should decision makers share this conviction, the concrete recommendations that flow from it will have to be tailored to the specific needs and resources of each jurisdiction. It is hoped that this article and similar efforts by others in the field will clarify the clinical and legal focus to address this problem more effectively.
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