NAMI Michigan

Hon Jennie E. Barkey
Hon. Milton L. Mack, Jr.

Mental illness is a disorder that is responsive to specific treatment. Recovery is possible and people with mental illness can lead normal productive lives. Timely treatment for mental illness, like all other illnesses, speeds recovery, promotes wellness and quality of life, preserves resiliency, and is less expensive in the long run because more intensive care is often not necessary.

Unfortunately, Michigan’s mental health system does not work that way. Michigan law requires people to be in crisis in order to receive court-ordered mental health care. Waiting for a crisis delays delivery of the right care at the right time and has resulted in overuse of the juvenile and criminal justice systems. Nowhere is this more apparent than in Michigan’s jails and prisons which have become the new institutions for persons with mental illnesses.

The Michigan Mental Health Commission found that the current mental health code is an in-patient model in an out-patient world. As such, it is unable to respond timely when persons become incapacitated by mental illness. The current system waits until a person is in crisis, such as being arrested, before taking action. Current law is frequently construed to prevent intervention unless someone is threatening homicide or suicide. When police confront a disorderly person, they usually know from experience that the local psychiatric intervention center will not take care of the person due to existing law. Treatment is not an option, making jail the only option.

Judges across the country who decline to be casual observers to this tragic outcome have developed mental health courts to respond to the problem. Typically these courts identify individuals with mental illness who are eligible for mental health services with the local agency, and who have committed a misdemeanor or nonviolent felony offense and accept them into their program. Generally, the individual pleads guilty before the judge and is monitored for one year. The goal of this program is to keep an individual stable. While this is a laudable attempt to address the problem, a more far reaching solution is necessary to meet the problem head on.

Mental health courts are limited in their application. They serve a small fraction of persons with mental illnesses who are charged with crimes. They typically require not only the consent of the defendant, but the informed consent of the defendant in order to participate in the program. In cases involving mental illness, consent, let alone informed consent, is often not attainable. Many are not eligible for mental health services from the local agency. These courts also limit the kind of cases eligible for the program. All other defendants suffering from mental illness go through the usual criminal procedure. The sad fact is that the vast majority of persons with mental illness are not eligible for these programs.

The good news is that this problem can be addressed with changes in the current law that would limit the need for mental health courts. The first step in fixing this problem is to treat mental illness like all other illnesses. For all other illnesses, if an individual has lost his or her ability to make an informed decision, someone else can be authorized to consent to necessary treatment. This same standard should be used when deciding whether to order involuntary treatment for a mental illness. The loss of capacity due to mental illness develops long before any encounter with the criminal justice system. Using this standard would permit early treatment and recovery, often before any harm would occur. The burden of proving lack of capacity would still be “clear and convincing”, the highest standard in the civil justice system. These petitions would be heard in the probate court, sharply reducing mental health dockets in the criminal courts.

The law also needs to be changed so that judges are not making treatment decisions like length of hospitalization or what medicine to take. When a judge authorizes someone to make a medical decision for any other illness, the judge does not prescribe the treatment. Why treat mental illness differently? The law also needs to be amended to make powers of attorney work the same for all illnesses in order to preserve self determination for everyone. These changes, and others recommended by the Michigan Mental Health Commission, would speed treatment and recovery to those with mental illnesses and reverse the trend to criminalize mental illness. They would help reduce stigma by treating mental illness the same as any other illness in authorizing a third party to consent to treatment.

Mental health courts are a poor solution to a public health crisis. However, the simple fact is that if the mental health system is not fixed, mental health courts will continue to be a necessity. Mental health courts are not enough to avoid unnecessary and expensive incarceration. Fixing the mental health system is the most promising way to decriminalize mental illness and end the practice of incarcerating persons with mental illness.