bed shifting from hospitals to jails – The Mental Health Reform Blog

judge Frank M. Johnson of Alabama Federal Court — Judge Frank M. Johnson, Pioneering Alabama Federal Judge in Civil Rights and Right to Treatment Case Law

Recently I became aware of the pioneering legal decisions concerning mental health reform that began in the 1950s and 1960s continuing really through the end of his very long legal career on the federal bench of Judge Frank M Johnson of Alabama. He was a pioneer most well-known for his decisions in the field of civil rights. In the decades since his name pioneering legal decisions and forward-thinking ideas that basically led to the basis for federal interventions and sweeping of desegregation across the self especially in the 1960s. Some people still remember the difficulties in the Kennedy administration and integrating both public high schools elementary schools and perhaps most famously the state university systems in Alabama and Georgia. Many people remember Gov. George see Wallace’s famous stands on the steps the University of Alabama buildings in which he proclaimed to television in the world beyond his stance of, “Segregation now, Segregation tomorrow, Segregation forever.” Judge Johnson’s decisions in the 1950s, and for decades later throughout his long federal judicial career, virtually quashed the legal and institutional resistance in the South and correspondingly nationwide, to public school and university level segregation practices. However, I became aware a few months ago, demonstrating a hole in my grasp of psychiatric – legal histories, of the role of this jurist in the very famous initial decisions regarding mental health hospitalization and more tellingly the right to treatment. In one decision the most famous of all, Wyatt versus Stickney he went on to write the standards for the first time of the delivery of mental health care in state hospital institutions.

Career of Judge Frank M. Johnson and His Legal Opinions — The career of Judge Frank M. Johnson and His Legal Opinions

Note: for more information on these two pictured books, please click through to Amazon [note I do NOT receive any remunerative ‘kickbacks’ from Amazon if you purchase; these are for your educational edification only]

The Wyatt order of 1971 defined adequate care and treatment as comprised of three areas: a humane psychological and physical environment; a certain number of qualified staff; and individual attention.

One reference that is a good explication of the then newly emerging concept of the “right to treatment” by Kathryn Glass of the University of Michigan Dept. of Social Work is the following: An Examination of “Right to Treatment” Standards: Mental Health Policy within the Context of the State Hospital System by Kathryn Glass

The Wyatt standards were designed to meet what the district court called the three “fundamental conditions for adequate and effective treatment”: “(1) a humane psychological and physical environment, (2) qualified staff in numbers sufficient to administer adequate treatment and (3) individualized treatment plans.” See Wyatt v. Stickney, 334 F. Supp. 1341, 1343 (M.D. Ala. 1971)

This case began on October 23, 1970, when patients at Bryce Hospital, a state-run institution for the mentally ill in Tuscaloosa, Alabama, filed suit in the United States District Court for the Middle District of Alabama against the commissioner and deputy commissioner of the Alabama Department of Mental Health and Mental Retardation (“DMH/MR”), the members of the Alabama Mental Health Board, the governor of Alabama, and Alabama’s probate judges.¹ These patients alleged that the conditions at Bryce Hospital were such that they had been deprived of their rights under the United States Constitution.²

On March 12, 1971, following a hearing on the plaintiffs’ application for preliminary injunctive relief, the district court found that patients at Bryce Hospital were being denied their “constitutional right to receive such individual treatment as will give each of them a realistic opportunity to be cured or to improve his or her mental condition.”³ Wyatt v. Stickney, 325 F. Supp. 781, 784 (M.D. Ala. 1971). The court ordered the defendants to devise and to submit to the court for approval, a plan to bring the hospital into compliance with constitutional standards of care.

Several months after the district court’s decision, the plaintiffs were given leave to amend their complaint to include allegations of constitutionally inadequate treatment at a second state-run hospital for the mentally ill, Searcy Hospital, in Mt. Vernon, Alabama, and at Partlow State School and Hospital, a state-run institution for mentally retarded persons in Partlow, Alabama.⁴ Following this amendment, the court’s order of March 12, 1971, was made applicable to the Searcy and Partlow facilities.

After the defendants failed to formulate “minimum medical and constitutional standards” for the operation of the three institutions, the district court, on April 13, 1972, established what would become known as the “Wyatt standards,” which set forth several specific requirements for the adequate treatment of both mentally ill and mentally retarded individuals.⁵ The court enjoined the defendants to implement the standards. See Wyatt v. Stickney, 344 F. Supp. 373, 378-86 (M.D. Ala. 1972) (Bryce and Searcy Hospitals); Wyatt v. Stickney, 344 F. Supp. 387, 394-407 (M.D. Ala. 1972) (Partlow State School and Hospital).⁶ The former Fifth Circuit affirmed the district court’s injunctions in 1974. Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974). It upheld under the Due Process Clause of the Fourteenth Amendment the plaintiffs’ constitutional right to treatment and affirmed the standards that were promulgated by the district court. In 1975, the district court, with the agreement of the parties, amended its 1972 injunctions to apply the Wyatt standards to all DMH/MR facilities.⁷

Judge Johnson’s own cobbled together standards for minimum staffing numbers for a group of 250 patients in a state hospital [did not apply to private psychiatric hospitals] was as listed below:

Classification Number of Employees

=============================================

Unit Director 1
Psychiatrist (3 years’ residency 2
training in psychiatry)
MD (Registered physicians) 4
Nurses (RN) 12
Licensed Practical Nurses 6
Aide III 6
Aide II 16
Aide I 70
Hospital Orderly 10
Clerk-Stenographer II 3
Clerk-Typist II 3
Unit Administrator 1
Administrative Clerk 1
Psychologist (Ph.D.) (doctoral
degree from accredited
program) 1
Psychologist (M.A.) 1
Psychologist (B.S.) 2
Social Worker (MSW) 2
Social Worker (B.A.) S
Patient Activity Therapist (M.S.) 1
Patient Activity Aide 10
Mental Health Technician 10
Dental Hygienist 1
Chaplain 5
Vocational Rehabilitation Counselor 1
Mental Health Field Representative 1
Dietitian 1
Food Service Supervisor 1
Cook II 2
Cook I 3
Food Service Worker 15
Vehicle Driver 1
Housekeeper 10
Messenger 1
Maintenance Repairman 2

It is easy to realize that judge Johnson’s enumerating of the minimal staffing numbers of clinical and nonclinical employees needed to staff a treatment center of 250 patients was unbelievably revolutionary for its time. No one had ever done this before in quite such detail. judge Johnson did on his own with almost no experience or knowledge of inpatient psychiatric hospital treatment. He had a few sources to draw upon including those of Judge David Bazelon of the Federal District Court in Washington DC. Judge Bazelon had begun to also formulate standards of care in lawsuits coming out of the St. Elizabeth’s (state hospital) just preceding the filing of the Wyatt versus Stickney case.

Judge Johnson also formulated in this ground breading decision a number of general standards of care:

1. Patients have a right to privacy and dignity.
2. Patients have a right to the least restrictive conditions necessary
to achieve the purposes of commitment.
3. No person shall be deemed incompetent to manage his affairs . . .
solely by reason of his admission or commitment to the hospital.
4. Patients shall have the same rights to visitation and telephone
communications as patients at other public hospitals. …
5. Patients shall have an unrestricted right to send sealed mail. …
6. Patients have a right to be free from unnecessary or excessive
medication. .
7. Patients have a right to be free from physical restraint and isolation. …
8. Patients shall have a right not to be subjected to experimental
research. …
9. Patients have a right not to be subjected to treatment procedures
such as lobotomy, electro-convulsive treatment, adversive [more modern term would be: aversive] reinforcement
conditioning or other unusual or hazardous treatment. …
10. Patients have a right to receive prompt and adequate medical
treatment. …
11. Patients have a right to wear their own clothes and to keep and use
their own personal possessions. …
12. The hospital has an obligation to supply an adequate allowance of clothing to any patients who do not have suitable clothing of
their own. . . . Such clothing shall be considered the patient’s throughout his stay in the hospital.
13. The hospital shall make provision for the laundering of patient
clothing.
14. Patients shall have a right to regular physical exercise several
times a week.
15. Patients have a right to be outdoors at regular and frequent
intervals. . ..
16. The right to religious worship shall be accorded to each patient
who desires such opportunities. . ..
-502-
17. The institution shall provide, with adequate supervision,
suitable opportunities for the patient’s interaction with members of
the opposite sex.

These standards of care are now part of the national lexicon and taken for granted in all mental health treatment circles. They came to be incorporated by national accreditation bodies such as the joint commission for the accreditation of hospital organizations or JCAHO as it is known. Judge Johnson single-handedly changed the landscape of inpatient psychiatric treatment forever in the United States and his contributions cannot be overestimated.

More recently I’ve become aware of another jurist on a federal appeals court in the state of Mississippi, Judge Carlton Reeves. This man has continued these kinds of decisions on the mental health front in the state of Mississippi, virtually having to revisit decisions of 50 and 60 years ago by Judge Johnson and continue to require the state of Mississippi to live up to those original standards. Most recently earlier this year he had to fine-tune and bore down on the requirements to deliver adequate, good enough mental health treatment by quashing a legal maneuver by the state of Mississippi to avoid implementing these basic rules and to end up having to spend more money on the state public mental health system.

Judge Reeves currently is more known for his civil rights decisions and he is very recent decisions striking down discriminatory laws against LGBTQ persons and most especially, is striking down in the last few years and at the time of this writing, the third week of May 2019, Mississippi’s extremely strict post six week abortion ban.

Judge Steven Leifman of the Florida Eleventh Circuit

Yet another judge who is even less well-known is judge Stephen Liefman of the Eleventh Judicial Circuit of Florida, mainly in the Miami-Southern Florida area. Judge Fleishman’s most unique in that he is also trained and former practicing psychiatrist. In his career as a state circuit level judge, he has been uncomfortably faced with the enormous numbers of mentally ill in the homeless and incarcerated populations in the modern United States. He has publicly estimated in years past that in his judicial area of assignment over 20, 000 people at any one time who are in the jails are mentally ill. He has begun a court-based intervention program, the Eleventh Circuit Criminal Mental Health Project. This program was begun in 2000. It now provides mental health assessments and diversion from the jail settings, treatment through community mental health centers, and a continuum of care that ranges from inpatient to community housing placements. This program has been another model for the nation trying to divert mentally ill persons away from the sinkhole of jails and prisons at all levels.

It is still disheartening to realize that since the 1950s and 1960s this country still has had to rely on brave jurists like these three examples, to compel states to provide minimum standards of care for the severely mentally ill. This does not speak well of the concept of states’ rights and has forced the continued imposition of federal mandates to ensure humane efforts in public mental health care.

The Largest Psych Hospital in America, Psst. It’s A Jail…

A couple of years ago I wrote a post in another blog about the incongruity that the Harris Co. Jail in Houston TX was the country’s largest inpatient public psychiatric hospital in disguise. This week an article in the local Houston press reminded me of Houston’s Harris Co. Jail ‘claim to fame:’Houston’s biggest jail wants to shed its reputation as a mental health treatment center

Ever the trickster brother even in my elder years, at that time, I actually brought this to the attention of my non-mental-health-issues-aware sister who lives there. I would tease her and ask her to arrange a tour for me there when I had an upcoming visit. I laid the teasing on thick, adding a hint, dear to her heart, that I might consider moving there since Harris County Jail was advertising for psychiatrists to work there, and a large number, FIFTEEN back then.

Everyone seems to have heard about Rikers Island prison in New York City and its horrors, overcrowding, deaths etc. I suppose it does not help Rikers’ public image much since it has been mentioned in every episode of Law and Order for over 20 years on television. And I further suppose Harris County Jail has been happy to fly well under Rikers’ blip on the national consciousness radar.

Another acquaintance of mine in the Houston who is in government tells me the officials in the area governments are very sensitive to stories like this about their county jail and do not want it lumped together with other infamous jails such as Cook County (Chicago), Los Angeles, Phoenix, etc. And who can blame them? A quote from the article brought to me by my trusty Google Search New Bots hinted at this sensitivity: ” The Harris County sheriff’s office doesn’t want its jail to be the largest mental health facility in Texas anymore.”I must preface my coming complimentary remarks about Texas’ efforts in the state’s jail systems by stating that in my estimation, Texas is one of the several states in the country that is making huge and creditworthy reform efforts on many fronts in their entire state’s mental health care delivery system. The legislature formed a task force on mental health in 2014-5, and it actually DID something. It issued a very comprehensive report in a year’s time. It is a piece of landmark analysis and goals. And, to top it off, the state legislature in Texas started drafting and passing concrete reform legislation. They started talking about spending up to $500M initially in a few years to get the massive, multifaceted statewide effort underway. It was all the more amazing since the Texas state legislature was the same body that had a number of its legislators hide in motels across state lines in another state to avoid a politically contentious vote several years ago. It was the laughing stock of the country for a week or so as all kinds of media and Internet games and memes started about where the missing lawmakers were. Pseudo rewards were offered. Petitions were started by wags and satirists to rename the missing officials “Waldo.” Kinky Friedman the inimitable Texas satirist and sometime candidate for the Governorship had a field day. Molly Ivins, the late great political satirist of Texas, was said to have been sighted in the Legislature and her newspaper’s offices. It was great theater.

The Harris Co. Jail has a triaging setup that is situated RIGHT AT the front intake booking desk. A trained officer with a communicating wireless tablet can consult with a nearby consulting psychiatrist to start the referral process form evaluation and treatment within the jail complex. Harris Co. Jail has decided that it will not pursue a mental health “diversion” program like many other judicial systems have started. In point of fact, Texas has started dozens of pilot diversion programs in counties elsewhere in the state. This model is felt to fit better in smaller counties with much smaller local jail populations.

So rather than having the ‘diversion-referral process start in the courtroom, this process is situated at the receiving desk of the jail. The model is structured so that the staff, from the trained deputies to the consulting mental health providers (from counselors to psychiatric social workers and psychologists to the close-by psychiatrist) on down, have a more vertically integrated and functional system that makes sense. It can be activated for any arriving inmate right at the first contact within the jail. It is certainly a novel approach and should be studied and likely tried elsewhere.

The jail has its own inpatient unit, the Harris County Psychiatric Center, which has nearly 300 beds. This is filled all the time and has a waiting list from the rest of the jail’s population. The jail as a whole, has long known that 1 in 4 or its total population have mental illness and need medication based psychiatric treatment and management. Nationally, over 400,00 inmates have psychiatric illnesses needing ongoing treatment, a staggering number.

Texas’s and Harris County’s efforts are to be applauded, followed closely and studied. Hopefully, it is a sign of things to come.

State Hospital Psychiatric National Bed Count Hits Historic Lows: Good or Bad?

A now slightly dated article published July 4, 2016 in many papers authored by Lateshia Beachum of the Washington Post that I came across in the Walla Walla Union Bulletin of Washington state recorded the magnitude of the cut backs nationally in public state hospital beds psychiatric beds. While this has long been known as a trend occurring over at least the last five decades, this article startled even this observer by how many beds have been cut by state governments in just the last several years. The article was entitled, “Psychiatric bed count hits record low in state hospitals.”

The first sentence of the article hints at two of the main themes: “The number of psychiatric beds in state hospital has dropped to a historic lows, and nearly half of the beds that are available are filled with patient from the criminal justice system.”

Continue reading “State Hospital Psychiatric National Bed Count Hits Historic Lows: Good or Bad?”

Mississippi budget cuts to close psychiatric beds

In a very recent article, “Mississippi budget cuts to close psychiatric beds,” published in the Clarion-Ledger newspaper on may 10, 2016, it is reported that Mississippi will close a number of treatment units and beds in the state’s public mental health and substance abuse facilities.

The article details that this has come about as a result of the state’s legislature deciding to cut funding by some 4.4% or $8.3M imposed by the current governor Phil Bryant’s yardstick, something called”performance- based budgeting process.”

The article goes on to detail a number of state-funded services that will be cut or reduced in size. Such targeted/designated services include inpatient mental health services and residential and community-based substance abuse treatment programs. The reader may follow the link above to read exactly what services will be trimmed or shut down altogether.

This is a rare opportunity for the concerned mental health/substance abuse services policy wonk, observer of both the national and regional scenes in such matters, to monitor what happens in the coming few years in this locale, the state of Mississippi.

Further, it affords almost an experimental laboratory, to watch the consequences unfold. One will be able to see if this has a positive influence on the overall “mental health of the state,” or negative consequences. To reveal this writer’s own bias from having watched many other states do the same since the early 1990’s, it will test the hypothesis that this action likely will repeat the past history of such efforts , namely to cause predictable negative results.

These results in other states have included: 1) increase in the mentally ill populations in local jails; 2) increased waiting lists in ERs around the state of acutely disturbed public psychiatric patients in crisis who need inpatient hospital services; 3) perhaps an increase in public incidents involving the chronically mentally ill of both a minor nuisance variety or major ones of tragic proportions; 4) increase in deaths of the mentally ill through suicide; 5) increase in the deaths of mentally ill persons through extreme public law enforcement actions due to the more disturbed and the communities not having a timely access to treatment; 6) more grieving families and tales in the local media as time goes on of possibly preventable tragedies; 7) increased strain on private treatment facilities ranging from private hospital based psychiatric units to hospital ERs, to the university medical school based psychiatric services.

The reader is invited to watch Mississippi as this made for observation stage in the ongoing struggle with provisioning public mental health services plays out in the media and locales of Mississippi to see how this turns out. I know this observer will watching with keen interest and growing concern and foreboding.

A Good Idea from a Texas Mental Health Leader

Texas, like many states, has been struggling for the better part of the last two decades with its public mental health system’s needs. Like almost all other states in the United States, it has seen its share of declining state funding for state-wide mental health services. Ageing state hospitals for the acutely mentally ill, chronically mentally ill and developmentally disabled have been closed or downsized. Short-falls have gradually appeared in the provision of outpatient services recommended and hoped for, to supplement or replace those reduced state hospital beds.

Texas for a number of years has begun to experience the enormous increase in jail populations of the mentally ill, mirroring many other states, especially New York with its travails at Rikers Island, perhaps the country’s most famous metropolitan jail facility, serving New York City. Rikers Island has lamentably been in the tragedy borne headlines in the last few years with repeated suicides of mentally ill inmates, and lawsuits by families and repeated efforts at reform and improvement, recently occurring again by necessity under the mayoralty of Bill DeBlasio.

Harris County Jail, of Houston Texas, has become known as one of the largest “psychiatric” facilities in the country. Several years ago I recall that the Harris County Jail had to increase its psychiatrist staff roster from three psychiatrists to fifteen and add a number of psychiatric physician extenders and other staff to serve the needs of this swelling psychiatric segment of the inmate population. What happened in Harris County, encompassing metropolitan Houston, was not unique to the country’s correctional systems at all, but became known readily nationwide as one of the first such settings recognized for this tell-tale barometer of the deficiencies in any area’s public mental health service system. Harris County, on a personal note, is known quite well to me, as that extended area was where my father came from and is where I have my only sibling living all our adult lives.

A very recent article online written by Stephen M. Glazier, one of the nation’s leading mental health care executives and head of UTHealth Harris County Psychiatric Center of Houston, outlined one of the best-written definitions of the concept of psychiatric “continuum of care,” that I have ever read. His article appearing at TribTalk.org, “Bridging the Mental Health Treatment Gap,” on May 9, 2016, provided insight into Texas’ progressive efforts in just the last 1-2 years on improving the state’s mental health reform and care delivery efforts which have not received the recognition they deserve.

Mr. Glazier pointed out the common issue seen in many states who have had to face the need to close or replace aging state hospitals, and the multifaceted dilemmas of what to replace them with. He eloquently wrote of the concept of providing what he termed the middle range of less intensive residential and non-hospital based psychiatric services in the overall continuum from hospital to home or ultimate living placement for the mentally ill person. He delineated some key concepts and facts: 1) that Texas’ state psychiatric bed ratio has declined since 2001 from 13.4 beds per 100,000 persons to 10.9; and that, 2) even if Texas had ‘kept up’ with the growing mental health needs, the rapid growth population growth in the state of Texas, which has always been in the top five states in the US, the state’s level of services would still have fallen behind previous levels of beds per 100,000 population.

His idea is not a new one, that increased and nuanced provision of these middle ground “residential,” transitional psychiatric services, would to at least some degree, not only replace some state hospital beds, but reduce the spill-over, or “trans-institutionalizations,” (the new buzzword) that we are seeing as ever more rapidly increasing numbers of the seriously mentally ill, shift from non-existent state psychiatric hospital beds to jails, hospital ERs, and the streets and shelters, all never intended to serve this population. But Mr. Glazier’s description of what is needed in filling in the gaps in the continuum of care of the mentally ill is well worth reading.

Shift of Mental Health Care to Jails

Once again the author finds himself balefully writing about the continuing appalling trends in mental health inpatient care nationally. However, I am moved to do only when I see a very good reference that I feel the reader interested in this vital topic, should be alerted to.

A recent article in the news blog, Vindy.com of November 24th, 2015 showed that it does not take a nationally prestigious paper or news sources to put out a superb summary and analysis of a subject pertinent to this topic. In an article entitled, “Mental health care in Ohio shifts from hospitals to jails,” written by Peter H. Milliken [milliken@vindy.com] in Youngstown Ohio, the issues were as clearly spelled out as I have ever seen.

That author started that “”in the past five decades, state-run psychiatric hospitals have been phased out with funds shifted into each community cereate outpatient care and support services for those afflicted with any of a number of mental illnesses.” He adds tellingly: “As in all complicated cases, the result has been a complicated stream of causes and effects,” and I would add ‘unintended effects’ that have marked ill conceived mental health reform efforts nationwide over the last 15-20 years. The three basic mistakes were 1) way too rapid closing of albeit aging state mental health hospitals and beds, 2) grossly inadequate replacement of those inpatient beds, the thinking being in the minds of frankly ignorant and misinformed ideology on the part of state level mental health planners and legislators, that the beds were not needed and should be “liberated” [my term] bourne out of the “de-institutionalization” misguided ideology arising in the 1950’s and 1960’s, and 3) the totally insufficient of funds to cover the community based needs as a result of the closure of inpatient, BOTH public and private.

The author gives an example of a state hospital closing 19 years before, the Woodside Hospital, and its surrounding county gradually absorbing what sounds like an inordinate number of extreme mental patients who had no place else to go. He states tellingly, “We’re in a crisis for state hospitals,…we have days when there are no hospital beds for our clients,” quoting Duane Piccririlli, executive director of Mahoning County, whose jail had to pick up the slack.

The article goes on to describe what happened in stark broad overview terms. The state of Ohio previously had 19 state hospitals but now has only six. Patient shifting as it is sometimes, called has occurred in a massive way from non-existent state hospital beds to jail beds. And it costs the state more in most studies to house such patients in jails than even so called “expensive” or “labor intensive care,” and the care if far poorer and more and more marked by preventable tragedies.