Suit argues rights of mentally ill infringed

Five years ago, Eastern State Hospital patient Phillip Paul – a man who had been acquitted of a violent murder based on “insanity” – walked away from a supervised group trip to the Spokane County Interstate Fair.

A storm of panic followed. Everyone from county commissioners to the governor asked the same outraged question: Why had Paul been taken to the fair at all? Media coverage, for the three days until Paul was found without incident, verged on the hysterical.

The truth is, patients hospitalized for mental illness were routinely taken into the community with staff as part of their treatment – routinely and almost entirely without incident. Such “integrated” treatment is a key part of helping patients get well and return to the community, and over time it has been a safe practice, according to those who work with the mentally ill.

After the Paul case, new laws essentially locked up hundreds of people in state care who have pleaded not guilty to crimes by reason of insanity, preventing them in some cases from even taking supervised walks on the grounds of the state’s two hospitals for mental illness.

The result, according to a federal lawsuit, is that patients who have been deemed by their doctors to be in recovery from mental illness and pose no danger to society remain confined – unable to leave for virtually any reason unless it’s to see a doctor or attend a funeral. On those visits, patients are sometimes shackled, even if they’ve been making supervised community visits without incident for years, according to the lawsuit.

To make other community visits – let alone to petition for release – patients now must go before a review panel and a judge, with the plaintiff required to prove they are no longer dangerous, a standard the lawsuit calls “nearly impossible.” These hurdles, combined with the intense public and media pressure awaiting any misstep, have turned the hospitals into de facto prisons, the suit alleges.

And so the state’s overcrowded and underfunded system for mental health care is clogged with hundreds of “forensic” patients – those acquitted by reason of insanity – who are no longer being treated or medicated. Meanwhile, others with acute mental illnesses can’t get the help they need; they often land in jail, where they wait months for available beds in Eastern or Western state hospitals. And the forensic patients are often confined for a much longer period than they would have been had they been convicted of a crime.

“If you were in jail, you would be out in three months,” said Elaine Alberti, a clinical nurse specialist at Eastern State Hospital, in a documentary produced by Disability Rights Washington. “Here at the hospital, you’re going to be lucky to be out in three years.”

This all grows out of the concern for public safety. Ironically, however, it is the revolving door at the jailhouse where the concern should be greater. The Bureau of Justice noted in April that 77 percent of people released from incarceration commit a new crime within five years. At Western State Hospital, meanwhile, the rate of reoffense since 2000 is less than 1 percent, hospital officials say.

“People with mental illness recover – they recover from this stuff,” said Steve Einhaus, peer specialist at Eastern State Hospital, in the documentary. “All the people in the hospitals who get out and live constructive, productive lives are proof.”

The lawsuit, filed in U.S. District Court against the state and the Department of Social and Health Services, asserts that the state is violating the constitutional rights to liberty, due process and equal treatment under the law to mental health patients, as well as breaking other laws governing the treatment of the mentally ill.

A hearing is set for Oct. 21 on the plaintiffs’ motion for a preliminary injunction – essentially a decision by the judge short of trial that the state is violating the law. If an injunction is declared, the plaintiffs want the state to immediately begin reviewing its practices, restoring more integrated care in the community and moving toward the release of patients whose doctors say they’re ready.

Attorneys representing the state DSHS would not comment on the suit, but have argued in court papers that patients have a process through which they can seek temporary or permanent release, and they can receive legal help with that if need be. The state also argues that the lawsuit makes “overly broad” claims – including “the broad statement that mental illness can be ‘cured.’ ”

The problems of mental illness are vast and complicated, and one of the most serious is the failure by social systems, the media and other citizens to understand and treat – rather than stereotype and punish – people who are sick. The mental health care system is woefully underfunded and disorganized, according to a review of forensic services turned over to DSHS in June. The report concluded that Washington lacks a central system for managing forensic patients and has far too few professional evaluators to keep up with caseloads.

“Washington has appeared to struggle with this population more than other states, and has settled upon a system of practices that are much more restrictive and expensive than other states,” the report says. “Put frankly, the current system for treating persons acquitted as (not guilty by reason of insanity) and preparing them for (community release) appears far more lengthy and laborious than necessary, diverting disproportionate resources for a relatively small and manageable population.”

Andrew Biviano is the attorney representing patients in the lawsuit. He said he understands that many people won’t sympathize all that much with those acquitted of a crime on an insanity defense. But forensic patients have not been convicted of a crime and have an illness that can be treated. It’s a situation that requires a balancing of rights, but at this point, their rights are being trampled, he said.

“Just as the state permitted to prolong the incarceration of convicted criminals beyond the end of their sentences based solely on concerns about public safety, it may not confine (forensic) patients who are not mentally ill based on those concerns,” the lawsuit argues.

A more politically powerful group of people would doubtlessly have a well-funded PAC working on its behalf, and the constitution talk would be relentless.

“The Constitution requires us to do things maybe we’re not comfortable with,” Biviano said. “But we put rights over our comfort.”