Story by Chris Graham

Pete Earley thought he had the system figured out.

A former investigative reporter for The Washington Post, Earley decided to throw himself into the task of learning everything that he could about the mental-health system in Virginia to try to get help for his son, Mike, who had been diagnosed with bipolar disorder.

That, he assumed, would be the best way that he could get Mike the help that he needed.

Turns out that he wasn’t as smart as he thought he was.

“I live in Fairfax - which, considering the wealth and the education, it really should have more money and more access to services - and yet the first time I had to interact with the system, my son ended up being turned away and ended up being arrested. And the second time, which a lot of people don’t know about, was before my book came out, and even after spending two years studying the system, even after getting to know a lot of people involved in the system, even after living in Fairfax County and having some political connections, I still found myself in exactly the same situation. And when the police were called, my son was shot with a Taser,” says Earley, the author of Crazy: A Father’s Search Through America’s Mental Health Madness, which chronicles his experiences involving his son and his subsequent research of mental-health service delivery nationwide.
“I don’t want to seem like I’m bragging, but if a guy who studies the system for two years and lives in a wealthy county and has an education and knows people can’t get loved ones help, then what chance does somebody who doesn’t speak the language or who’s psychotic or who’s poor or who doesn’t have any connections, then what chance do they have?” Earley says.
“I think that’s a stinging indictment of Virginia,” Earley says.

***

An indictment in a critically acclaimed book is one thing. What happened in Blacksburg on April 16 - when a Virginia Tech senior, Cho Seung-Hui, 23, who had a brief encounter with the Virginia mental-health system in 2005 after a roommate told police that he had mentioned possible suicide, went on a shooting rampage that left 33 people, including himself, dead, and 15 others wounded - is quite another kind of indictment altogether.

The Virginia Tech shootings have upped the ante for a commission launched by Virginia Supreme Court Chief Justice Leroy Hassell last year to review the Commonwealth’s mental-health laws and the interpretations of those laws.

“You never want a tragic situation to arise, even if it does highlight certain issues. But the fact of the matter is, of course, that it does highlight some issues that we were already looking at,” says Richard Bonnie, a professor at the University of Virginia School of Law who is heading up the Hassell Commission.

The commission has five working task forces examining issues involving the civil-commitment process, which has come under the most intense scrutiny in the wake of the April 16 shootings, and issues involving access to services and state funding for mental-health services. Bonnie says that the events at Virginia Tech have “forced us to look into ways in which we might be able to accelerate at least part of what we’re doing” - with the goal of being able to wrap up at least a portion of its work in time for legislators to consider possible legislation in the 2008 Virginia General Assembly session.

The legislature, for its part, is ramping up its own efforts relative to the review of state laws in the mental-health area - House Health, Welfare and Institutions Committee chairman Phil Hamilton, R-Newport News, is putting together a schedule of committee meetings for the second half of 2007 to “receive information on a number of mental-health issues,” including emergency custody orders, temporary-detention orders and the voluntary and involuntary commitment process.

“I am seeking input from the attorney general’s office, the Department of Mental Health the Virginia Association of Community Services Boards, private mental-health care providers, the chief justice’s Mental Health Law Reform Commission, and other interested stakeholders. Hopefully, these meetings will better prepare committee members to understand the complexities of mental-health issues and determine whether changes are needed,” Hamilton says.

The money that is made available for mental-health services also promises to be a focal point in the coming months.

“Virginia has systematically reduced funding for mental-health services over the last 10 to 15 years,” says Ron Honberg, the director of policy and legal affairs at the Arlington-based National Alliance on Mental Illness, a grassroots mental-health organization dedicated to improving the lives of people living with serious mental illness and their families.
“I think lack of money is a big part of the problem. I also think that legitimate questions have to be asked whether the resources that do exist are going into services that really work for people,” Honberg says.

***

Pete Earley was shocked to learn about the number of successful mental-health programs that are out there - “and that 80 to 85 percent of persons with mental illnesses can really be treated successfully and can fully recover.”

“The shame of it is, there are specific programs that help people - even people who are living on the streets eating out of garbage cans - that can help those people get back into the community. But we don’t want to spend the money,” Earley says.

Earley illustrates that point in Crazy - telling the story of a man that he met in Florida who suffers from chronic schizophrenia, who was arrested 14 times in one year on a series of minor nuisance-type offenses. Earley estimates the cost to prosecute the man and keep him in jail was about $65,000 in that 12-month span - and compares that figure to the estimated $20,000 that it would cost to put him in the care of what is called an assertive community treatment team consisting of a doctor, a social worker and a nurse and then paying for his room and board.

“So for less than half the price of what we’re paying to keep people in jail, you could literally go out and take somebody like that and pull them off the street and give them help and try to get them some decent housing. But we would rather waste the money cycling them through the system than pay for assertive community treatment teams,” Earley says.
“The reason is money. I’ve just explained to you how it’s actually cheaper - but what the legislators will come back with is, Well, we have to run the jails anyway. So getting this guy out of the jail really doesn’t save us any money - because we still have those costs,” Earley says.
“On a human level, if that’s your son, if that’s your brother, if that’s your father, for $20,000, $25,000, you could help them. It seems to me that we have a moral obligation to try to do that,” Earley says.

The money that does get spent in the mental-health system goes for the most part toward helping those with the most serious of disorders.

“Our resources are so thin that for the most part they are dedicated to people who have chronic, long-term and serious mental illnesses, and who really do need ongoing support in order to live in the community, in order to live successfully in the community,” says Mary Ann Bergeron, the executive director of the Richmond-based Virginia Association of Community Services Boards.

“There are many, many people with mental illness who are learning the strategies to manage their disease such as you might manage the disease of cancer or heart disease or diabetes. You know, once you become educated about it, once you realize that it is a part of your life, you can’t ignore it, you have to be able to manage it, and then where do we go from here,” Bergeron says.

“There is a lot of promise in terms of that, but we are really not able to address the kinds of issues that are less severe - we are not able to address them in comprehensive ways, let’s put it that way. In an emergency situations, sure, they can be addressed - but there is usually followup needed after a crisis. Whether a person goes into inpatient care or is deemed to be over the crisis, there is some followup needed. And our resources are stretched too thin,” Bergeron says.

“I think part of the problem is how we allocate the resources that we do have,” says Mary Zdanowicz, the executive director of the Arlington-based Treatment Advocacy Center, a national nonprofit organization dedicated to eliminating barriers to the timely and effective treatment of severe mental illnesses.

“It used to be that a lot of the money in the state mental-health system went to the state psychiatric hospitals. That was the case here in Virginia. And over the years, those state-hospital beds have been closed - and the money has been shifted to the community. Which is a good thing - except that, in Virginia, the community services are all voluntary,” Zdanowicz says.

“There really aren’t many services that are for involuntary patients. And when you consider that the population that was displaced when we closed the state psychiatric hospitals are people who by and large required involuntary treatment, it becomes clear that there’s a big gap in the system - that the treatment system needs to be reoriented to not just meet the needs of voluntary patients, but patients who are too sick to realize that they need to access services voluntarily,” Zdanowicz says.

“It’s really sad - because there are some really good services available in Virginia. You ask anybody in the field, and they would say, of course, they would like to have more services - but there are some really good services in Virginia. But they tend to be for people who knock on the door and say, I want these services. And this population is not going to do that,” Zdanowicz says.

***

The process for what are called involuntary commitments was under review by the Hassell Mental Health Law Reform Commission before the Virginia Tech shootings.

That Cho Seung-Hui was ordered to receive only outpatient treatment for mental illness in 2005 16 months before gunning down 32 people has brought the criteria for commitments in Virginia into a sharper focus.

“Clearly the incident in December of 2005 gave apparently no hint of the kind of deep-rooted, apparently psychotic thinking that eventually developed - that obviously posed a danger to many, many other people. The issue that was raised in December 2005 was whether he was suicidal,” says Richard Bonnie, the UVa. law professor who is heading up the Hassell Commission.

“I think one of the embedded issues in the case was whether he met the commitment criteria at that time. And that’s another issue that we’re looking at - whether the criteria for commitment for either inpatient or outpatient treatment should be as tight as the Virginia criteria are, which requires imminent danger to one’s self or others,” Bonnie says.
Mary Zdanowicz at the Treatment Advocacy Center says the most obvious change in the state code that needs to be made regarding commitment criteria has to do with the language regarding whether a person is or is not an “imminent danger.”

“In some parts of the state, it’s interpreted in a way that it’s possible to get help for someone who may not be homicidal or suicidal, but obviously needs help, and will come to some harm if they don’t get treatment. But in other parts of the state, it’s interpreted very strictly - so that it could actually be held up as a barrier to treatment,” Zdanowicz says.
“I’ve heard people say, It means suicidal or homicidal. And frankly, that’s too late. If you wait until someone gets that sick, your chances are not that good that you’re going to be able to get them into treatment before something bad happens,” Zdanowicz says.

“Change that language regarding someone being an imminent danger - and use what some other states use. Other states are going to something like, Likelihood of substantial harm in the near future. And that may be defined so that you know if somebody is threatening or causing harm, it would be possible to get them into treatment. Or if they’re exhibiting symptoms that previously resulted in them coming to some harm, you could get them into treatment. And that just makes it a lot clearer that you don’t have to wait until somebody is suicidal or homicidal,” Zdanowicz says.

Another inconsistency that needs to be cleared up, Zdanowicz says, comes in the laws governing outpatient treatment - the order in Cho’s case in 2005 called for him to receive mental-health treatment on outpatient basis, but somehow the fact that he never did receive the court-ordered treatment was missed by everybody in the mental-health system who should have known that information.

“Virginia law very clearly says that the local mental-health agencies, which are the community services boards, are responsible for monitoring a person who gets a court order for treatment. And in this case, the one who was responsible, they were interviewed, and they said, Well, it’s really the patient’s prerogative, and there’s really no way to enforce it,” Zdanowicz says.

“Those provisions could be made clearer - that, yes, as it says now, the community services board is responsible for providing treatment and monitoring. But perhaps borrowing something from New York, where they have very specific procedures to follow if someone is not adhering to the treatment. The difference is that here in Virginia, it does say that the court can rescind an order if somebody is not participating in treatment in the community. They can rescind the order, consider the fact that they weren’t compliant, and have a hearing for an inpatient commitment - they can basically have them committed to the hospital,” Zdanowicz says.
“In New York, it’s not quite as cumbersome - if the doctor recognizes that the person is not following their treatment, and he thinks that they may meet that inpatient criteria, the doctor can ask to have the person brought to a hospital for evaluation for 72 hours, and then from there be committed inpatient if they meet the criteria,” Zdanowicz says.

***

The flip side of the concern regarding commitment laws is that there is just as much concern out there that changes to those laws could reverse the tide of reforms in the code that have slowly over the years built up the recognition that there is a fine line to walk between protecting the public safety and protecting the rights of individuals with mental illnesses.

“Mental illness is a treatable disease that many people misunderstand - so there are a couple of things that I am concerned about could happen in the aftermath that we really shouldn’t do or get sidetracked with and have a kneejerk reaction and offer legislation to do things in mental-health treatment and also in gun control that could be counterproductive,” says Emmett Hanger, a state senator from Mount Solon who has been active in the mental-health policy spectrum in his time in the Virginia General Assembly.
“We certainly shouldn’t overreact and attempt to again demonize some of the individuals who are afflicted with mental illnesses - indeed, it’s a very common occurrence and impacts most families, and for the most part is very treatable with both inpatient and outpatient treatment and modern drugs. So it’s not something that people should be ashamed of or try to hide within their families. It’s something that needs to be dealt with,” Hanger says.

“This is, of course, a tragedy - nobody doubts that - that somebody who is mentally ill decides to kill a bunch of people,” says Paul Lombardo, a Georgia State University law professor who was involved in the crafting of mental-health laws in the Commonwealth during his time at the University of Virginia.

“My argument against the kinds of precipitous changes that we’re hearing suggested now is, first of all, it doesn’t work - and that’s the best argument of all,” Lombardo says. “It doesn’t work - it’s just pragmatically unrealistic. But you can always make the rights argument, too - which I certainly believe in. I believe that in previous years in Virginia in my lifetime there were times every Saturday night when sheriffs in small towns would go out and do a sweep and pick everybody up who looked a little bit weird and send them off to Western State - because after all, people want to go out and have dinner on Saturday night, and they don’t want to look at these people.

“I do have a concern that the kneejerk reaction of, Let’s change the law because we’re going to prevent this will give us a result that will not be a result that we find very useful in the future,” Lombardo says.

“As well-meaning as they are, I don’t think that these suggestions are going to get us a result that we want - which is to prevent this kind of violence,” Lombardo says.

Lombardo brings up as a case in point Executive Order No. 50 issued by Virginia Gov. Tim Kaine two weeks after the Virginia Tech shootings - instructing all executive-branch agencies in the Commonwealth to immediately begin including the names of those individuals who have been found dangerous and ordered to undergo involuntary mental-health treatment in the database used to check the backgrounds of those attempting to lawfully purchase firearms.

“The law as it stands, and the policy behind it, in terms of reporting people for firearms purchases, was really based on the idea that we don’t want to take rights away from people who basically had not had their day in court,” Lombardo says.

“The thing is, I could pick up the phone today - if I were in Staunton - and call somebody who was a magistrate, or better yet just a police officer that I knew, and make allegations about you that would have you picked up and taken to a hospital for evaluation. And the form that would be signed by that police officer would say that the allegations were that you are mentally ill and dangerous. And as a result of that, if that kicked the records law off, as some people are arguing it should, then your name would end up on a federal list that says that you can’t purchase firearms and who-knows-what-else,” Lombardo says.

“Some people would argue, and I would be one of them, that jumping to the business of putting people’s names on a federal list of folks who are mentally ill without giving them an opportunity to ever challenge that allegation is probably a mistake,” Lombardo says.

Another person making that argument is Larry Pratt, the executive director of the Springfield-based Gun Owners of America.

“The governor is saying, This little bit of gun control is going to do the trick, this is going to be the gun control that actually works, this is going to be the gun control that keeps guns out of criminals’ hands. No - we’re talking about keeping guns out of people’s hands that have a mental illness. You’re not keeping guns out of criminals’ hands,” Pratt says.

“Mental illness is not a predictor of violent behavior any more than you can look at a person without mental illness and predict that they may engage in violent behavior in the future,” Pratt says.
“Frequently if somebody goes to a psychiatrist, and they have a serious depression, and they’re not a danger to other people, except that they may commit suicide, the psychiatrist may decide, after working with them, that they’re going to be better off in an institution where they can make sure that they can get enough pills down them to get them better. And then when the person gets better, and they realize that, Oh, my goodness, that’s where I was, and they clean up their act, they’re fine - and they go on with the rest of their lives. But not in terms of guns. What we’re talking about here is once their name is entered as someone who has been sent to an institution, adjudicated involuntarily and entered into an institution, that’s it for life - and there’s no way to expunge it,” Pratt says.

“You’re saying to people, We think that anybody with a mental illness deserves to be stigmatized, deserves to be treated really as a criminal by everybody else in society,” Pratt says.

But as Virginia Attorney General Bob McDonnell points out, the governor’s executive order isn’t an attempt to make a new law or policy regarding what is reported to the federal background-check database.

“The problem was that under the current interpretations in Virginia, only those who had been declared mentally ill, were a danger to self or others and ordered to undergo inpatient mental-health treatment were reported to the state and federal databases for the purposes of disqualification from purchasing a firearm,” McDonnell says.
“What the governor’s executive order did was to clarify that once you’re found to be a danger to self or others and mentally ill and unable to care for yourself, even if you’re only ordered to have outpatient treatment, that still triggers the requirement for reporting to the state and federal databases,” McDonnell says.

“We think that’s a reasonable understanding of what the General Assembly meant, what the federal regulations meant - because the whole focus is on mental illness and danger; it’s not on where you get the treatment,” McDonnell says.

***

The background-check issue is sure to come up in the ‘08 Virginia General Assembly session.

“The governor’s executive-order authority only extends to dealing with existing law. The governor can’t change the law. That’s the duty of the General Assembly. And they undoubtedly will look at all these issues next session based on the governor’s panel’s recommendations and the Supreme Court mental-health study and others,” says Bob McDonnell, who also plans to be involved in the efforts to clear up laws related to involuntary and voluntary commitments and inpatient and outpatient treatment.

But nobody in elected office seems to be ready to acknowledge the elephant in the room that is the funding issue.

“Over the years we’ve been shutting down hospital beds and moving people out of these dreaded asylums and into the community - which is a good thing. But we’ve never on the federal level funded community services like we promised we would,” Pete Earley says. “So you have a lack of funding for community services, you’re closing down these hospital beds - and then as part of the civil-rights movement, to keep people out of institutions, to keep them from being sentenced to life, the equivalent of a life sentence, in one of these horrible institutions, for being sick, we really imposed stringent commitment criteria.

“Now that law that was designed to present people from just being scooped up and thrown into an institution is being used basically I believe to deny them services. What we say is, Until you’re so sick that you hurt yourself or someone else, we won’t help you. And then, if you do hurt yourself or someone else, you’ve broken the law - so we’re going to put you in jail. And that’s what’s happening. And that saves money - because jails are cheaper than hospital beds,” Earley says.

“We have 386,000 people who have mental illnesses who are in our jails or prisons, and we have 500,000 on probation - and 700,000 go through the system each year. And what’s funny is that the judges and the police and the sheriffs are the ones calling for reforms - it’s not the medical psychiatric community, and it’s not the civil-rights lawyers. And I find that frustrating,” Earley says.

“We’ve turned mental illness into a criminal-justice problem - instead of a medical-health problem. What other illness do you end up calling the police when somebody gets sick rather than calling an ambulance?” Earley says.

“What really is coming to the forefront for us to recognize is that it’s not just a community services board issue - it is really a community issue, and needs a shared community ownership and response,” Mary Ann Bergeron of the Virginia Association of Community Services Boards says.

“I think what’s going to drive it home is the men and women who are coming back from Iraq and Afghanistan with very serious long-term needs in terms of behavioral health because of what they’ve been through. We’re seeing this influx of people coming back, and some of them have some obvious physical disabilities - and many, many of them, far more than you would think, have behavioral health issues that may not even come to the forefront until they’re back trying to live their lives,” Bergeron says.

“I really think we have to look at this in a comprehensive way, realize that there are not any silver bullets that are going to resolve this issue, that it is a multiplicity of things that are going to have to come together. The community has to own the mission, there has to be resources, there has to be training, and above all, there has to be a public recognition that it is OK to seek treatment when you need it, and then make that treatment available,” Bergeron says.
“My experience is that whenever a government wants to find the resources, it can,” Bergeron says.

For further reading

National Alliance on Mental Illness - www.nami.org

Pete Earley - www.peteearley.com

Treatment Advocacy Center - www.pyschlaws.org

Virginia Association of Community Services Boards - www.vacsb.org

Filed under: 6-July 2007 Issue