Wednesday, July 15, 2009

Making the case for treatment: Details on the interface between a local care system and the criminal justice system

Making the case for treatment
Details on the interface between a local care system and the criminal justice system
by Kate K.V. Lawson, MPA; Michael R. Berren, PhD; and Neal Cash, MS

The situation is not uncommon: A family member of an individual with a mental illness calls local law enforcement as a “last resort.” A situation has escalated to the point of being a crisis and, for everyone involved, it appears as though all other options have been exhausted. While the call is generally a last-ditch effort to ensure safety for the individual and/or others, law enforcement’s presence often results in the individual with a mental illness being arrested or detained.

In addition to this scenario, it is not unusual for individuals with a mental illness to become involved in the criminal justice system for crimes that often are a consequence of their illness and/or social situation (such as vagrancy because the individual often has nowhere else to go). They then must manage the difficult task of negotiating a complicated criminal justice system while attempting to reengage in treatment.

The criminalization of mental illness is hardly a new topic. It has been written about for decades, with an article by Abramson (1972) being one of the earliest.1 Following Abramson’s article have been hundreds of others addressing the issue of jails and prisons becoming primary housing facilities for individuals with mental illness. Not only is it a topic of concern for professional publications, the criminalization of people with mental illness regularly is addressed in the popular press. For example, a March 3 blog post on the Dallas Morning News Web site talked about a bill that would prevent local authorities from using “time and convenience” as reasons for incarcerating mental health patients.2

There are a myriad of reasons, however, why using the criminal justice system as a de facto mental health system is inappropriate, including the following.

• Jails and prisons are ill-equipped to serve as mental health facilities. Where statistics are available, inmates with mental illness have higher than average disciplinary rates. A study in Washington State found that while inmates with mental illness constituted nearly 19% of the state's prison population, they accounted for 41% of infractions.3 This leads to the additional issue of inmates with mental illness who have problems with controlling their behavior being disproportionately placed in solitary confinement. Furthermore, solitary confinement is particularly difficult for inmates with mental illness because of limited medical care and the psychologically harmful consequences of isolation and idleness.
• While in detention medications may be discontinued or changed, and the variety of case management, skill building, and clinical services will be limited or eliminated completely.
• Incarceration is an expensive alternative to treatment. While prison can cost quite a bit more, even incarceration at the Pima County (Arizona) jail can cost nearly $100 per day.
• Once an individual’s treatment has been interrupted by incarceration it can be difficult to reengage him/her in services, thereby adding to the long-term costs.
• In addition to the costs to taxpayers and adverse impact on the individual, it is unethical to use incarceration and prison as an alternative to treatment.

Our response
Given all of the reasons for not wanting to inappropriately incarcerate individuals with mental illness, the Community Partnership of Southern Arizona (CPSA) collaborated with its provider network and the criminal justice system to form the Behavioral Health/Criminal Justice System Workgroup. The workgroup’s first task was to identify systemic issues that led to inappropriate incarceration and/or inappropriate length of stay. Following the identification of issues the workgroup began to focus on the strategies and interventions that could be implemented to reduce the time that an individual with a mental illness is inappropriately incarcerated. That is not to say that incarceration is always inappropriate. There are a variety of circumstances in which incarceration might be appropriate to protect an individual from being a danger to him/herself or others, or serve as an intervention before more serious destabilization occurs. Furthermore, incarceration may become a “wake-up call” for the individual as to the consequences of not properly managing his/her illness.

One of the workgroup’s primary outcomes was creating the CPSA Criminal Justice Team, established to be a resource and link between the justice and treatment systems. The team works with behavioral healthcare provider agencies (each of which was mandated to employ a criminal justice specialist) and other stakeholders, such as courts, probation officers, pre-trial services, the jail, police departments, and attorneys, to facilitate resolutions of both system-wide and member-specific issues.

To have a positive impact on inappropriate incarceration, the collaborative relationship between the various behavioral healthcare and justice entities must allow for information to pass quickly and efficiently, while at the same time observing applicable HIPAA rules and regulations. Contrary to popular belief, HIPAA rules do not necessarily have to be a barrier for communication between criminal justice and behavioral healthcare agencies. Rather, it can provide tools to aid in cross-system information sharing.

For example, when an individual is detained in the jail, time is of the essence in transmitting critical behavioral healthcare information from the treatment provider in the community to the treatment provider in the jail. Failure to do so can result in further destabilization and crisis for the individual, thereby increasing risk of injury to the individual (including suicide), other inmates, and jail staff.

Collaborative strategies
The three most commonly used tools to share CPSA member-specific information within the Criminal Justice Team includes the following.

Provider-to-provider information sharing. To identify in real time clients who have just been arrested, twice a day the “booking list” of the county is filtered against the CPSA member roster. When a match is identified the Criminal Justice Team sends a notification to the criminal justice specialist at the behavioral healthcare agency, notifying him/her that a client in his/her network has been arrested. This real-time notification includes the charges, the client’s enrollment status within the behavioral healthcare system (SMI, substance abuse, etc.), the assigned court or jurisdiction, and the next court date. The Criminal Justice Team also notifies the contracted healthcare provider at the jail that an inmate in its custody is enrolled in the community behavioral healthcare system.

A recent enhancement to the Criminal Justice Team initiative is to have a CPSA criminal justice team member attend the initial appearance court hearings (at which a judge determines conditions of release, if any, and informs the individual of the charges). The team member’s participation allows for:

• A universal consent form (discussed below) to be signed
• An assessment to determine the individual’s ability to transport him/herself home and to treatment
• Information sharing with pre-trial services and the presiding judge

For individuals not enrolled in the treatment system, the criminal justice team member facilitates the enrollment process and timeliness of having the person seen by a treatment provider. This recently implemented process has significantly increased the likelihood that the individual may avoid being taken into custody.

If a CPSA-enrolled member is taken into custody, CPSA provider agencies are contractually required to submit to the jail healthcare provider clinical information, including medications the individual is taking, case management notes, and any other information deemed relevant. CPSA’s pharmacy staff also send the most recent pharmacy information to the jail’s healthcare provider. The jail healthcare provider, in turn, places individuals with mental illness on a specialized caseload, which allows them to be housed in acute or subacute mental health “pods” within the jail, if needed.

On a weekly basis the CPSA Criminal Justice Team members, the behavioral healthcare agencies’ criminal justice specialists from, and the mental healthcare provider meet to discuss general issues and conduct staffing and discharge planning for inmates enrolled in the behavioral healthcare system. Individuals who have been identified as having a mental illness but not enrolled in CPSA may be referred/evaluated for enrollment while in custody. The team may coordinate transportation for individuals too unstable to leave the jail unassisted or assessment for court-ordered treatment for those who meet the legal criteria of danger to self, danger to others, persistently or acute disabled, or gravely disabled.

Universal consent form. The Criminal Justice Team developed and implemented use of an information-sharing universal consent form accepted by all providers in the CPSA system and readily used by all criminal justice entities, including court officials, attorneys, probation officers, and law enforcement. While a consent form is not required for all information-sharing activities (e.g., as ordered by a judge or to the healthcare provider at the jail), using the form not only establishes a recognition for the individual’s privacy, but also lets the individual know of every agency with whom his/her information will be shared and for what purpose. The form permits the Criminal Justice Team and providers to share real-time information, which may change daily depending on the person’s stability and criminal case processing. It also permits communication with multiple justice entities when cases are pending in more than one court or jurisdiction.

Mental health courts and judicial orders. A standardized judicial order for sharing healthcare information typically is used in the specialty mental health courts by judges who have received behavioral health training and understand these orders’ legal and medical implications. Standardized orders permit a level of sharing and collaboration that is even greater than allowed through the universal consent form. CPSA co-sponsored mental health courts are examples for how collaboration between various social service and criminal justice entities benefits the stakeholders, community and, most importantly, the CSPA members. CPSA has active mental health courts in five jurisdictions, as well as a consolidated justice court and felony superior court. Members enrolled in a mental health court have been found to be more compliant with treatment, resolve criminal charges more efficiently and effectively, and commit fewer new offenses. These outcomes result in improved public safety, cost savings to taxpayers, and better outcomes for our members.

Systemic strategies
HIPAA-compliant mechanisms for sharing member-specific information is only part of the process used by the community to make the most appropriate use of the criminal justice system as it concerns mental health patients. There are also a number of strategies to impact system-wide issues. Other collaborations that CPSA coordinates, or is an active participant in, include:

• Pima County Forensic Task Force
• Mental health court steering committee
• Crisis intervention training with law enforcement
• Court-specific collaborative committees

As a result of these collaborations, Southern Arizona has developed standards and ethics that value progressive programs that positively impact individuals with mental illness involved in the criminal justice system.

Kate K.V. Lawson, MPA, is the Criminal Justice Manager at the Community Partnership of Southern Arizona (CPSA), the regional behavioral health authority coordinating and managing publicly funded behavioral health services in Cochise, Graham, Greenlee, Pima, and Santa Cruz Counties. Michael R. Berren, PhD, is CPSA’s Director of System Development and a clinical lecturer in the Department of Psychiatry at the University of Arizona. Neal Cash, MS, is President/CEO of CPSA. For more information, e-mail

1. Abramson MF. The criminalization of mentally disordered behavior: possible side-effect of a new mental health law. Hosp Community Psychiatry 1972;23(4):101-5.
2. Ramshaw E. Keeping mental health patients out of jail [blog post]. Dallas Morning News. March 3, 2009.
3. Fellner J. A corrections quandary: mental illness and prison rules. Harvard Civil Rights-Civil Liberties Law Review 2006;41(2):391-412.

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